5.3 Family Law - II

National Law University and Judicial Academy, Assam
Programme: B.A.LL.B.(Hons.)
Details of Course offered
Odd Semester – Academic Year 2018-19
Sl. Course Code Course

No Title L T P CR CH
1. 5.3 fl Family 3 1 2 5 80
law II per per per
week week week
a. Code and Title of the Course: 5.3 FL FAMILY LAW II
b. Course Credit: 5 (total marks 100)
c. Medium of instruction: ENGLISH
d. Course Compiled by: MS. GITANJALI GHOSH
e. Course Instructor: MS. GITANJALI GHOSH

1. Course Objectives
Family law is an all-pervasive law. There is hardly anybody who is not under its
purview and is not affected by the provisions thereunder. However, a vast
majority of us are not quite aware of our rights and obligations under the same.
The objectives of the course, in particular, are as follows:
• To familiarize students with the dynamics of disputes under personal laws;
• To identify emerging issues in family law;
• To understand the lacunae in personal law;
• To analyse personal law from a gender perspective;
• To enhance capacity of students to form their own opinions on vital family
law issues.
2. Teaching methodology
The teaching methodology shall aim at the generation of critical thinking among
the students. The topic for a particular class shall be informed to the students
before hand and readings shall be assigned to them for the said topic. They are
expected to have a basic idea about the topic prior to the class. Subsequent to a
brief lecture on the topic, there shall be class discussion on the same as well as on
the readings assigned. Pursuant to the class discussion, the teacher shall
substantiate the issues raised and answer any questions posed or left unanswered.
3. Case Law Reporter/Journals
Case Law Reporters

• All India Reporter
• Divorce and Matrimonial Cases
• Hindu Law Reporter
• Supreme Court Cases
Family Law Journals
• American Journal of Family Law
• American University Journal of Gender, Social Policy & the Law
• Australian Journal of Family Law (Australia)
• Boston College Journal of Law and Social Justice
• Boston University Public Interest Law Journal
• Canadian Family Law Quarterly (Canada)
• Canadian Journal of Family Law (Canada)
• Child & Family Law Quarterly (United Kingdom)
• Child Welfare
• Children's Legal Rights Journal
• Family & Intimate Partner Violence Quarterly (2008-)
• Family Advocate
• Family Court Review
• Family Law (United Kingdom)
• Family Law Review (2010-) (Australia)
• International Family Law (United Kingdom)
• The International Journal of Children's Rights (Netherlands)
• International Journal of Law, Policy and the Family (United Kingdom)
• Irish Journal of Family Law (Ireland)
• The Journal of Social Welfare & Family Law (United Kingdom)
• Journal of the American Academy of Matrimonial Lawyers
• Journal of Juvenile and Family Law (India)
• Journal of Law and Family Studies
• Journal of Social Welfare and Family Law
• Juvenile and Family Court Journal (India)
• Law and Inequality
• Los Angeles Public Interest Law Journal
• New Zealand Family Law Journal (New Zealand)
• U.C. Davis Journal of Juvenile Law and Policy
• University of La Verne Law Review
• University of Pennsylvania Journal of Law and Social Change
• Whittier Journal of Child and Family Advocacy
4. Prescribed Readings
• Aqil Ahmad, Mohammedan Law (I.A. Kan rev., 23rd edn, CLA 2011).
• Asaf A.A. Fyzee, Outlines of Muhammadan Law (Tahir Mahmood ed and rev,
5th edn, OUP 2008).
• DF Mulla, Hindu Law (Satyajeet A. Desai rev, 22nd edn, Lexis Nexis 2016).
• DF Mulla, Principles of Mahomedan Law (I.A. Khan rev, 20th edn, Lexis
Nexis 2014).
• Flavia Agnes, Family Law vol 1 (OUP 2011).
• JD Mayne, Hindu Law & Usage, (Vijender Kumar rev, 17th ed, Bharat Law
House 2014).
• Poonam Pradhan Saxena, Family Law II (3rd edn, Lexis Nexis 2011).
• R.K. Sinha, Muslim Law (6th edn, CLA 2011).
• Sarasu Esther Thomas, Law for Christians in Contemporary India (BTESSC
2014).
• Sebastian Champappilly, Christian law of Succession in India (1st edn,
Southern Law Publishers 1997).
• Mohammed Shabbir and S.C. Manchanda, Parsi law in India (5th edn, Law
Book Co. (P) Ltd. 1991).
5. Course Evaluation Method
The course shall be assessed for 100 marks. The examinations shall be closed
book.
Mid semester 20
End semester 50
Project 20
Project Presentation 5
Attendance 5
6. Expected Outcomes of the Course
At the completion of the course, it is humbly expected that the students shall:
• Comprehend the subject matter of the course
• Be able to analyze contemporary personal law problems in the light of the
concepts learnt
• Be able to articulate their ideas on the subject matter of the course
• Produce at least one research paper of publishable quality
• Desire to take up personal law for further studies
7. Detailed Structure of the Course
Module 1
• Hindu Law
Ø Joint Family Law

Ø Kinds of Property
Ø Mitakshara and Dayabhaga
Ø Survivorship
Ø Karta
Ø Alienation of HUF Property
Ø Partition
Ø Joint Family Business
Ø Pious obligation
Ø Gains of learning
Ø Blending
Statutes
• The Hindu Gains and Learning Act 1930

• The Hindu Succession (Amendment) Act 2005
Cases
• C N Arunachala Mudaliar v. C A Muruganatha Mudaliar, AIR 1953 SC 495.
• Commissioner of Wealth Tax v. R Sridharan (1976) 4 SCC 489.
• Raja Chelikani Venkayamma v. Venkatramanayyamma, (1902) 29 IA 156.
• Md. Hussain Khan v. Babu Kishva Nandan Sahai, (1937) 64 IA 250.
• Katama Natchiar v. Mootoo Vijaya, (1861-64) 9 MIA 325.
• Krishna Prasad v. C.I.T., Bangalore, AIR 1975 SC 498.
• Kshetra Mohan v. Commissioner of Excess Profit Tax, AIR 1953 SC 516.
• Bhagwan Dayal v. Reoti Devi, AIR 1962 SC 287.
• Sunil Kumar v Ram Parkash, AIR 1988 SC 576
• Suraj Bunsi Koer v. Sheo Proshad Singh, (1879) 6 IA 88.
• Hunooman Persaud Panday v. Mussamat Babbooee Munraj Koonweree, 6 MIA 393.
• Murarka Properties v. Beharilal Murarka, AIR 1978 SC 300.
• Brij Narain v. Mangala Prasad, AIR 1924 PC 50.
• Apoorva Shantilal v. CIT, Gujarat AIR 1983 SC 409.
• Puttrangama v. MS Ranganna AIR 1968 SC 1018.
• Kalyani v. Narayanan, AIR 1980 SC 1173.
• A Venkappa Bhatta v. Gangamma, AIR 1988 Ker 133
• Ratnam Chettiar v. Kuppuswami, AIR 1976 SC 1
• Ram Narain Chaudhury v. Pan Kuer, 1934 IA 16.
• Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, AIR 1982 SC 1239
• P.S. Sairam v. P.S. Rama Rao Pisey, AIR 2004 SC 1619.
• Pushpa Devi v. CIT, AIR 1977 SC 2230.
• Commissioner of Income Tax v. L. Balasubramaniam, [1985] 153 ITR 696 (Mad)
• CM Shah v. CIT, (1992) 1 SCC 76.
Compulsory Readings
• DF Mulla, Hindu Law ( Satyajeet A. Desai rev, 22nd edn, Lexis Nexis 2016) Chapters 3,
4, 5, 8, 9, 10, 12, 13, 14, 16
• JD Mayne, Hindu Law & Usage, (Vijender Kumar rev, 17th ed, Bharat Law House
2014) Chapter 1, 12
• Poonam Pradhan Saxena, Family Law II (3rd edn, Lexis Nexis 2011) Chapters 2, 3, 4, 5,
6, 8, 9, 10.
• Flavia Agnes, Family Law vol 1 (OUP 2011) Chapter 1 Section A
• Vijendra Kumar, “Basis and Nature of Pious Obligations of Son to pay Father's Debt vis-
à-vis Statutory Modifications in Hindu Law”, 1994 JILI 339.
Module 2
• Stridhana
• Women’s Estate
• Hindu Succession Act1956

Ø Intestate Succession to a male Hindu
Ø Intestate Succession to a female Hindu
Ø Succession rights of illegitimate children
Ø Special provision respecting dwelling houses
Ø General principles
Ø Disqualifications
• Hindu Succession (Amendment) Act 2005
Statutes
• The Hindu Women’s Rights to Property Rights 1937

• The Kerala Joint Hindu Family System (Abolition) Act 1975
• The Hindu Succession Act 1956
• The Hindu Succession (Andhra Pradesh Amendment) Act 1986
• The Hindu Succession (Tamil Nadu Amendment) Act 1990
• The Hindu Succession (Maharashtra Amendment) Act 1994
• The Hindu Succession (Karnataka Amendment) Act 1994
• The Hindu Succession (Amendment) Act 2005
Cases
• Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, AIR 1982 SC 1239
• Kotturuswami v Veeravva, AIR 1959 SC 577
• V. Tulsamma v V. Sesha Reddi (1977) 3 SCC 79
• Kalawatibai v Souryabai AIR 1991 SC 1581
• C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, (1996) 8 SCC 525.
• Naresh Kumari v. Shakshi Lal, 1999 (2) SCC 656.
• Wealth Tax Commissioner v. Chander Sen, AIR 1986 SC 1753.
• Ajit Kumar v. Ujayar Singh, AIR 1961 SC 1334.
• Shakuntala Sawhney v. Kaushalya Sawhney, (1980) 1 SCC 63.
• Seethalakshmi Ammal v. Muthuvenkatrama Iyengar, (1998) 5 SCC 368.
• Narasimha Murthy v. Susheela Bai, AIR 1996 SC 1826.
• Chanchal Ram v. Union of India, AIR 1953 HP 79.
• State of Punjab v. Balwant Singh, AIR 1991 SC 684.
• State of Gujarat v. Mahant Ranchhodas Guru Atmaramdasji, AIR 1974 Guj 115
• Badrinarayan Shankar Bhandari v. Ompraskash Shankar Bhandari, AIR 2014 Bom
151.
• Pushpalatha v. V. Padma, AIR 2010 Kar 124.
• Uttam v. Saubhag Singh, Civil Appeal No. 2360_of 2016.
Compulsory Readings
• JD Mayne, Hindu Law & Usage, (Vijender Kumar rev, 17th ed, Bharat Law House
2014) Chapter 20.
• DF Mulla, Hindu Law ( Satyajeet A. Desai rev, 22nd edn, Lexis Nexis 2016) Part I
Chapters 10, 11 and Part II HSA, 1956.
• Flavia Agnes, Family Law vol 1 (OUP 2011) Chapter 1 Section A.
• Poonam Pradhan Saxena, Family Law II (3rd edn, Lexis Nexis 2011) Chapters 11, 12.
• H.S. Sandhu, “Scope of Section 6 of Hindu Succession Act” AIR 1998 Jour 177.
• B. Sivaramayya, “HSA (Andhra Amendment) 1985: A Move in the Wrong Direction”,
1988 JILI 166.
• Bina Agarwal, “Far From Gender Equality” (2005) 20(2) FROM THE LAWYERS’
COLLECTIVE 16.
• Kirtee Singh, “Amendments to the Hindu Succession Act – Are they enough to bring
about Gender Equality?” (2005) 4(1) COMBAT LAW.
• B. Sivaramayya, “Hindu Succession Act and Restricted Estates” 1964 JILI 338.
• “Shares to Female members at Partition under Mitakshara Law”, 1963 JILI 217.
• M.M. Bhalla, “Whether s. 8 HSA Sounds the Death Knell of Coparcenary Property For
Descendants” AIR 1994 Jour 137.
• Kusum, “Rights and Status of Illegitimate Children” 1998 JILI 301.
• D.C. Jain, “Section 15 of the Hindu Succession Act, 1956: Some Anomalies and
Inequities” 1968 SCJ 1.
Module 3
• Muslim Law
Ø Sunni (Hanafi) Law of Intestate Succession
Ø Shia (Ithna Ashari) Law of Intestate Succession
• Christian Law of Intestate Succession
• Parsi Law of Intestate Succession
• Disqualifications under different personal laws
Statute
• The Indian Succession Act 1925
Cases
• Solomon v. Muthiah, (1974) 1 MLJ 53.
• D Chelliah Nadar v. G Lalita Bai, AIR 1978 Mad 66.
• Mary Roy v. State of Kerala, (1986) 2 SCC 209.
• V M Mathew v. Eliswa, AIR 1989 NOC 27 (Ker).
Compulsory Readings
• Poonam Pradhan Saxena, Family Law II (3rd edn, Lexis Nexis 2011) Chapter 17.
• Flavia Agnes, Family Law vol 1 (OUP 2011) Chapter 1 Sections B, C, D
• Aqil Ahmad, Mohammedan Law (I.A. Kan rev., 23rd edn, CLA 2011) Chapter 19.
• Asaf A.A. Fyzee, Outlines of Muhammadan Law (Tahir Mahmood ed and rev, 5th edn,
OUP 2008) Chapters 13 and 14.
• DF Mulla, Principles of Mahomedan Law (I.A. Khan rev, 20th edn, Lexis Nexis 2014)
Chapters 6, 7, 8.
• R.K. Sinha, Muslim Law (6th edn, CLA 2011) Chapter 15.
• Sarasu Esther Thomas, Law for Christians in Contemporary India (BTESSC 2014)
Chapter 13.
• Sebastian Champappilly, Christian law of Succession in India (1st edn, Southern Law
Publishers 1997).
• Mohammed Shabbir and S.C. Manchanda, Parsi law in India (5th edn, Law Book Co. (P)
Ltd. 1991)
• Thomas John, “Succession Law in India and Obstacles in the Road to Gender Equality”
(2006) 18(2) STUDENT BAR REVIEW 38.
• Sebastian Champappilly, “Christian Law of Succession and Mary Roy's Case” (1994) 4
SCC (Jour) 9
• Sebastian Champappilly, “Reforms in Christian law of succession in India” (1999) 4
SCC (Jour) 7
Module 4
• Testamentary Succession
Ø Testamentary succession under different personal laws
Ø Testamentary capacity
Ø Wills
Ø Construction of Wills
Ø Procedures under the Indian Succession Act, 1925
Ø Administration of Estates
• Pre-emption
• Law of gifts
• Hiba
• Wakf
• Wasiyat
• Deathbed bequests
• Religious and Charitable Endowments
Statutes
• The Transfer of Property Act 1882

• The Indian Succession Act 1925
• The Mussalman Wakf Validating Act 1913
• The Mussalman Wakf Act 1923
• The Mussalman Wakf Validating Act 1930
• The Bengal Wakf Act 1934
• The Mussalman Wakf (Bombay Amendment) Act 1935
• The Wakf Act 1954
• The Wakf (Amendment) Act 1959
• The Public Wakfs (Extension of Limitation) Act 1959
• The Uttar Pradesh Muslim Wakfs Act 1960
• The Public Wakfs (Extension of Limitation) Amendment Act 1967
• The Public Wakfs (Extension of Limitation) (Delhi Amendment) Act 1982
• The Wakf Act 1995
• The Wakf (Amendment) Act, 2013
Cases
• Bishan Singh v. Khazan Singh, AIR 1958 SC 838.
• Bhau Ram v. Brij Nath, AIR 1962 SC 1476.
• Ram Saran v. Domini Kuer, AIR 1962 SC
• Hassarat Bibi v. Golam Jaffar, (1898) 3 CWN 57
• Commissioner of Gift Tax v. Abdul Karim, AIR 1991 SC 1847
Compulsory Readings
• Asaf A.A. Fyzee, Outlines of Muhammadan Law (Tahir Mahmood ed and rev, 5th edn,
OUP 2008) Chapters 8, 9, 10 and 11.
• DF Mulla, Hindu Law (Satyajeet A. Desai rev, 22nd edn, Lexis Nexis 2016) Chapters 19,
20, 21
• Poonam Pradhan Saxena, Family Law II (3rd edn, Lexis Nexis 2011) Chapters 14, 15,
16.
• Flavia Agnes, Family Law vol 1 (OUP 2011) Chapter
• Aqil Ahmad, Mohammedan Law (I.A. Khan rev, 23rd edn, CLA 2011) Chapters 13, 14,
15, 16, 17.
• DF Mulla, Principles of Mahomedan Law (I.A. Khan rev, 20th edn, Lexis Nexis 2014)
Chapters 9, 10, 11, 12, 13
• R.K. Sinha, Muslim Law (6th edn, CLA 2011) Chapters 10, 11, 12, 13
• V.K. Varadachari, Hindu Religious and Charitable Endowments (R. Prakash rev, Eastern
Book Company, 2005).
8. List of relevant print and online resources
• Acharya Shuklendra, Hindu Undivided Family: Taxation And Tax Planning
• B. Sivaramayya, Matrimonial Property Law In India
• B.K. Mukherjee, Hindu Law Of Religious And Charitable Trust
• B.M. Gandhi, Family Law Vol I And II
• B.N. Sampath, Articles On Hindu Family Law
• B.S. Narang, Concept Of Stridhana In Ancient India
• Brenda Hale, The Family, Law And Society
• Bromley, Family Law
• Cretney, Family Law
• D.N. Sen, The Indian Succession Act, 1925 With Model Petitions
• Framjee A Rana, Parsi Law, Containing The Law Of Applicable To Parsis As
Regards Succession And Inheritance, Marriage And Divorce
• Frances Burton, Family Law
• G.C. Sarkar, A Treatise On Hindu Law
• G.C.V. Subba Rao, Family Law In India: Hindu, Muslim, Christian And Parsi
• H.T. Colebrooke, Dayabhaga And Mitakshara
• Harris And Teitelbaum, Family Law
• Harris-Short And Miles, Family Law : Text, Cases And Materials
• Harry D Krause, Illegitimacy : Law And Social Policy
• Indira Jaising, Justice For Women : Personal Laws, Women's Rights And Law Reform
• J Eric Smithburn, Family Law: Problems And Documents
• James Stewart, Family Law: Jurisdictional Comparisons
• Judith Masson, Principles Of Family Law
• Kate Standley, Cases And Materials On Family Law
• Keith Hodkinson, Muslim Family Law: A Source Book
• Khan Noor Ephroz, Women And Law: Muslim Personal Law Perspective
• Kusum, Cases And Materials On Family Law
• M.V. Shanker Bhat, Aliyasantana Law
• Magnaghten, Principles Of Hindu And Mohammadan Law
• Menski, Modern Indian Family Law
• Michael D Freeman, Family, State And Law Vol I And II
• Michael D Freeman, Understanding Family Law
• N.D. Basu, Law Of Succession : A Comprehensive Commentary On The Indian
Succession Act, 1925
• Oliphant And Steege, Work Of The Family Lawyer
• Paras Diwan, Family Law
• Paras Diwan, Modern Hindu Law
• Paras Diwan, Muslim Law In Modern India
• Peter De Cruz, Family Law, Sex And Society: A Comparative Study Of Family Law
• S.A. Kader, Muslim Law Of Marriage And Succession In India : A Critique With A
Plea For Optional Civil Code
• S.M. Cretney And J.M. Masson, Principles Of Family Law
• Sen And Sengupta, The Indian Succession Act, 1925 With Speicmen Forms Of Wills,
Probate And Letters Of Administration, Petitions And Applications
• Sumeet Malik, Family Law Manual
• Victor Davidson, Family Law In A Nutshell
STUDY/READING MATERIAL
Sl. TITLE OF THE PAPER AUTHOR

No.
1 The Hindu Joint Family S. Shandrasekhar
2 Coparcenary Under Hindu Law : Vijender Kumar
Boundaries Redefined
3 Basis And Nature Of Pious Obligation Vijender Kumar
Of Son To Pay Father’s Debt Vis-À-Vis
Statutory Modifications In Hindu
Laws
4 Doctrine Of Relation Back Under Vijender Kumar
Hindu Law : A Case Law Study
5 The Hindu Succession Act, 1956: An J. Duncan M.
Experiment In Social Legislation Derrett
6 Property Rights Of Hindu Women: A Deborati Halder; K.
Feminist Review Of Succession Laws Jaishankar
Of Ancient, Medieval, And Modern
India
7 Women's Inheritance According To Florence Laroche-
The 2005 Amended Hindu Succession Gissero
Act
8 Law Of Waqf As A Purposive Device P. Ishwara Bhat
For Promoting Social Justice And
Human Rights: A Study Of Indian
Experience
CASES
9 C.N. Arunachala Mudaliar V. C.A. Air 1953 Sc 495
Muruganatha Mudaliar And Anr.
10 Commissioner Of Wealth Tax, Madras (1976) 4 Scc 489
And Ors. V. Late R. Sridharan By
L.Rs. & Rosa Maria Steinbicher
Sridharan
11 Raja Chelikani Venkayyamma Garu 7 Cwn 1
V. Raja Chelikani Venkatarama-
Nayyamma
12 C. Krishna Prasad V. C. I. T. Air 1975 Sc 498
Bangalore
13 Kshetra Mohan-Sannyasi Charan Air 1953 Sc 516
Sadhukhan V. Commissioner Of
Excess Profits Tax, West Bengal
14 Suraj Bunsi Koer (Mother And (1879)L.R. 6 I.A. 88
Guardian Of The Infant Sons) V.
Proshad Singh And Ors
15 Hunoomanpersaud Panday V. 6 Mia 393.
Mussumat Babooee Munraj
Koonweree
16 Murarka Properties (P) Ltd. V. Air 1978 Sc 300
Beharilal Murarka And Ors.
17 Apoorva Shantilal Shah V. Air 1983 Sc 409
Commissioner Of Income Tax Gujarat
I, Ahmedabad
18 Puttarangamma And 2 Ors. V. M.S. Air 1968 Sc 1018
Ranganna And 3 Ors.
19 Kalyani (Dead) By Lrs. V. Narayanan Air 1980 Sc 1173
And Ors.
20 A. Venkappa Bhatta And Ors. V. Air 1988 Ker 133
Gangamma And Ors.
21 Ratnam Chettiar And Ors. V. S.M. Air 1976 Sc 1
Kuppuswami Chettiar And Ors.
22 Ram Narain Chaudhury (Since 39 Cwn 265
Deceased) V. Pan Kuer And Ors.
23 Gurupad Khandappa Magdum V. AIR 1978 SC 1239
Hirabai Khandappa Magdum And
Others
24 Wealth Tax Commissioner V. Chander AIR 1986 SC 1753
Sen,
25 Uttam V. Saubhag Singh & Ors. Civil Appeal No.
2360_Of 2016
26 Pushpalatha V. V. Padma AIR 2010 Kar 124.
27 Badrinarayan Shankar Bhandari V. AIR 2014 Bom 151.
Ompraskash Shankar Bhandari
28 Kotturuswami V. Veeravva AIR 1959 SC 577
29 V. Tulasamma V. V. Sesha Reddi (1977) 3 Scc 99
30 Kalawatibai V. Souryabai AIR 1991 SC 1581
31 C. Masilamani Mudaliar V. Idol Of Sri (1996) 8 Scc 525
Swaminathaswami Thirukoil
32 Naresh Kumari V. Shakshi Lal (1999) 2 SCC 656
33 Pushpa Devi V. CIT AIR 1977 SC 2230
34 Commissioner Of Income Tax V. L. [1985] 153 ITR 696
BalasubramaniaM (Mad)
35 Chandrakant Manilal Shah V. CIT (1992) 1 SCC 76
36 Narasimha Murthy V. Susheela Bai AIR 1996 SC 1826
37 Mary Roy V. State Of Kerala (1986) 2 SCC 209
MARRIAGE AND THE FAMILY
~Contributions to this Department vill includeoriginal articles, reports of conferences,
grams relating to marriage andlthe family.iIt is ediced by Enest
specialinvestigations and research,and pro-
R. Groves of the Uaiversity of North Garolisa. h vould ,ik to.r.-
ceive reports and copies of any material relating to the family and marriage.
THE HINDU JOINT FAMILY

S. CHANDRASEKHAR
New York City
combine together and occupy the different rooms

THE
-by central
Indian structure
we meanoflargely Hindu-rests
the Indian society
on the caste system with the corollary of
in the parental residence along with their children
and children's children. Correspondingly, the
untouchability and the institution of the joint womenfolk also, the mother, the daughters-in-law,
family. Although these two features are pre- unmarried daughters, and granddaughters and
dominantly peculiar to Hinduism as practiced and sometimes great-granddaughters live under the
therefore an integral part of the daily lives of the same roof. The daughters in the family, on get-
Hindu millions, these systems have gradually ting married, leave their parental home and become
insinuated themselves into adoption as social members of the joint family to which their hus-
customs of those professing other religions in bands belong. Thus, while the brothers in the
India. This wIll be understood when it is said family bring the daughters of other families into
that there is a caste system even among the Indian their common household, the sisters, on getting
Christians and the institution of joint family married, become members of the joint families to
among the Moslems. Accordingly, a discussion which they respectively belong. So naturally
of these two sociological features of Hindu society the number of those who live together under the
as true of the whole Indian population will not be same roof may be very large, and, counting the
invalid. It is this institution of the joint family children and the grandchildren, the number may
around which the whole of the Indian community even run to a hundred in regular joint families.
life is built up. This custom seems to have existed Even the household servants, many of whom often
for all practical purposes from the days of Buddha, grow up with the family, have their recognized
the leader of protestant Hinduism, and Sankara, place, and their attachment to the master members
the Hindu Monist, and, having persisted all of the family is often deep and cordial. To
through the centuries, has come down to the accomodate all these it need hardly be added that
present day almost unmodified. the house has to be very large indeed.
The father and the mother have their places of
THE HINDU JOINT FAMILY DEFINED
honor in these joint families; the father, being the
The joint family in India, as in China and even older and more experienced, is nominally the head
in Japan, is the very opposite of the individual of the family. Under ordinary circumstances it
family unit of the Occident. In the joint family, is he who controls, guides, and directs the whole
as the name suggests, the unit is not the husband, family, unless, of course, he is very old or an
wife, and children, but the whole family relation- invalid, when the oldest brother among the children
ships. It is at once a corporate economic, religious, or the eldest member in the nearest line of male
and social unit. It begins like this. In a joint descent takes his place. The mother always has
family when brothers grow up to manhood and her influence and, although grown-up sons live in
marry, they do not leave the parental household, the family with their wives, the respect, considera-
go out and live separately in separate houses, but tion, and reverence shown by all members of the
SOCIAL FORCES
family to the old mother is surprisingly great. understanding, and accommodation on the part
And it may be safely asserted that no important of its members, is built up on a kind of co-partner-
measure of domestic concern will be approved or ship ideal. This system, in which all are bound to
put into action without the final and often the contribute according to their earnings and where
formal sanction of the mother. all are entitled to be maintained from the family
In the family, worship, food, and property or funds according to their needs, is in practice a
estate are held in common and owned jointly, and recognized socialist unit, though not necessarily
the actual share to which each member is entitled- secular in spirit. In practice, for centuries it has
if there be separation-fluctuates, diminishing or led to certain remarkable as well as retrograde
increasing with each birth or death. This arrange- reactions on the Hindu social and economic
ment is not disturbed, even if some members of structure.
the family have to reside far away from the home
ITS ORIGIN AND GROWTH
in different parts of the country by virtue of their
calling. When at home, all share the food pre- Before we evaluate its effects, however, let us
pared in a single and common kitchen. In fact, look into its genesis and growth. While the actual
in popular parlance the chief criterion of the joint origin of this historical unit of the Hindu family
nature of the commensal family arises largely from system is lost in the mists of antiquity, and there is
the fact of the common kitchen. The saying is: neither enough in adequate data, its growth at
"Aik hi chuley ka pakka khate hein." "They eat least can be accounted for by the economic and
food cooked in one and the same kitchen." social conditions of earlier centuries of Indian
The ancestral property and the income arising history. In a way its origin, too, perhaps can be
from it, along with the earnings of the individual explained, though it can be nothing more than a
members, constitute a common family fund out of rough hypothesis. At one time, India, as the
which the expenses of the whole family are met. United States, was a land of vast and rich alluvial
Often an earning member of the joint family who plains with a thin population. Labor was scant,
happens to live outside of the common family in a but resources were plentiful. Vast stretches of
distant place remits a part of his income to the unoccupied and uncolonized land could be had for
common family pool, resembling in this respect the mere asking; these conditions possibly led to
the pre-Revolution peasant family in Russia. the large family as the best suited unit to own and
The funds-money, land, houses, jewelry, and till the land. This early experiment of jointly
cattle-like other administrative affairs are looked owning the land, ploughing it, and sharing its
after by the father, or the oldest brother, or some abundant produce, proved so successful, especially
senior male relative. But in all financial matters, in view of the absence of competition and popula-
all adult members are usually consulted before tion pressure, that the system forced itself into
any major item of expenditure is granted. Every permanent adoption by the early inhabitants. It
earning member contributes his mite or share to is no wonder that, with plenty of rich and fertile
the family funds which, coupled with the ancestral land, with good and abundant yield, and with the
property and income thereon, constitutes the absence of an oppressive government, the people
common family fund. Every member has a right clustered together and pursued their almost sole
to it, and the necessary and legitimate needs of occupation of agriculture in peace and content-
all the family members are generally met. Thus, ment. This large family led to no economic fric-
all earning members-mostly male members- tion, for there was enough for all. Since there was
contribute in proportion to their income, and all no pressure on the soil, people were few, and no
members, men, women-married and widowed- scarcity of food was in sight, it led to no fragmenta-
and children, whether earning or not, enjoy the tion or subdivision of the holdings.
common family resources. Centuries passed, but the same household con-
In practice it sometimes happens that an un- tinued to be owned and occupied, and the same
employed brother, his wife, and children may soil tilled and the fruits shared by generation after
sometimes consume more from the family funds generation, cherishing the memory of a bygone
than a childless brother whose income may be ancestor. This gratitude itself to an original
considerable. This system of give-and-take, de- ancestor-as far as they could trace-who be-
manding a great deal of mutual tolerance, love, queathed to his progeny not a barren soil and a
THE FAMILY
burdensome debt, but well-watered and carefully surprisingly neither weakened nor demolished the
cultivated land with plenty of livestock, deepened structure of the large family. On the contrary,
to veneration. In course of time this veneration they made the joint family the permanent and
ingrained itself into the Hindu social mind as central basis of the Indian rural economy. When
ancestor worship, which is today as integral a part the popul.ation reached the limit under the then
of Hinduism as it is of Confucianism. Whether existing undeveloped state of the land and other
the common ancestor worship in any way led to natural resources, the sons on getting married
the joint family system or vice versa need not could not go away from the family and "set up a
detain us here. But possibly the economic factors separate house" and start a new and independent
that gave birth to the joint family might have life even if they wanted to, but had to live on the
engendered and fostered in its train the common old homestead of their father and scrape what little
ancestor worship. This common religious tie, they could from the joint family income. And in
coupled with the economic bonds of mutual help- the frequent intervals when the country was
fulness, placed the joint family on a secure founda- thrown into political upheavals as a result of
tion. And in the favorable atmosphere of the foreign invasions, with the consequent economic
prosperous years of a few subsequent centuries the exploitation and political insecurity, the joint
joint family exhibited no weakness that would family proved to be the ideal family unit to
recommend its rejection from the Hindu social weather these storms and stresses and present a
economy. Tested thus in the crucible of years of united front in the face of these great odds and
experience, the system was found useful under the difficulties. In their wake came periods of famine
then agricultural rural conditions and therefore and drought which were only too frequent in the
was adopted as a permanent feature of Hindu chequered history of Indian economic develop-
social life. ment. During these periods the joint family
In later centuries the particular economic factors provided the much-needed succor to the individual
of abundance of natural resources, unoccupied members and helped them to survive the distress-
land, and scarcity of population that had brought ing conditions. This system thus served a very
the joint family system into existence, passed useful purpose in preserving the family integrity
away. Exactly contrary conditions came into and the communal morale when different factors
existence, for population began to grow fast (the sought to undermine and destroy them. The
rapid growth of the population in itself was partly strength this system gathered during those trying
the result of the joint family system, in which no times has enabled it to live even today in Hindu
one hesitated to take a wife, for individual eco- society.
nomic independence was not a prerequisite for
marriage since there was always the family to take THE HINDU LAW ON THE JOINT FAMILY
care of the new additions to the household), all
But what of its effect? Before we evaluate the
fertile and free land was occupied, and, in the
results of this system in the light of modem condi-
absence of adequate subsidiary occupations, the
tions, its essential unity of purpose as interpreted
pressure of the growing population on the soil,
by the Hindu law should be made clear. The
almost the only source of subsistence, was begin-
term "joint family" does not mean that all the
ning to be felt. True, there were the cottage
members are forced to live together. The con-
industries and rural handicrafts, but waves of
tinuance of the joint family has always been based
foreign invasions of India shattered the basic
on the consent of its members, for Nemo in com-
Indian rural economy, the cottage industries, and munione potest invitus detineri has always been the
handicrafts, with nothing to take their place. No guardian maxim of the Hindu family law. Sepa-
large-scale industries were started to absorb the ration or secession is not impossible for any
surplus population that land could not support. member who may wish to leave the fold of the
The primitive wooden plough of the joint agricul- joint family. Nor is there any fixed time for the
tural family and the unscientific and undeveloped brothers to separate from the central joint family.
nature of Indian agriculture made the rich soil Often with the death of the old father, or when
appear almost exhausted. the brothers' children become matured men and
These conditions, which were directly the oppo- bring their wives into the family, each brother may
site of those that gave birth to the joint family, separate with his wife and children.
SOCIAL FORCES
Apart from this kind of voluntary separation of feelings of good will, kindly affection, and sportive
old members to provide room for the growing humor. In a joint family every member gets his
younger generation, there is always the possibility first lesson in forbearance, tolerance, and accom-
of an individualistic young member who desires modation. Although knit by ties of consanguinity,
to secede from the joint family even before he has it takes all sorts of persons to make a joint family.
made any worthwhile contribution to it. As And, naturally, misunderstandings, wrong and
though anticipating this, tradition and custom unjust interpretations of others' doings in the
have recognized certain regulations to effect such family, minor jealousies, and even silent bickerings
separations. These regulations, which have the often come to the fore, especially when girls from
sanction of the present-day Hindu law, uphold, different families, of varied cultural and social out-
however, the entire structure of the joint family. look, are brought by the brothers, who marry them,
With regard to ownership of property and the to live under the common roof. But these very
possibilities of separation and division, the law at human frailties bring into play the nobler side of
present recognizes three types of joint families. human nature of wide tolerance, mutual sym-
In the first type, the Mitakshara system, the son pathy, and broad humanism. The brothers, and
acquires the right to ancestral property at birth much more their wives, may quarrel, and often do
and can demand partition at any time, if he so quarrel, but after all we recognize brothers by their
chooses. In the second form of Dayabhaga the quarrels.
son acquires the right to property only on the One remarkable result of this kind of communal
death of his father. The third is that of the living was that few men have ever been left in
Malabar system in which the son can demand desperate straits of misery or poverty. The
partition and his share in the family property only family ties stretch so far and wide that even the
with the consent of all the co-sharers. Here it is most distant and underprivileged member will find
not a question of even a majority vote but a shelter under the roof of the joint family. This
unanimous verdict. This being very often almost fact, that somewhere in the large family the
impossible to secure, some joint families on the meager dole of daily rice and curry could be ob-
South West Coast of Malabar have come down tained, has not reduced many to actual or absolute
undivided through the centuries. starvation, whatever might be their inability in
While the Dayabhaga system is peculiar to terms of earning capacity. As a result there is no
Bengal, the Mitakshara is in vogue in other parts poor law, poorhouse, or workhouse run by the
of India except Malabar where the peculiar matri- state where the penniless and the destitute can go
lineal system exists even today. Whatever be the as a last resort. Besides, in the agricultural and
type of joint family, the animating purpose of artisan joint families the large numbers provided
give-and-take, the familiar spirit of tolerance and a kind of old-age insurance to the aged parents and
sympathy and the end of preserving the traditional other old members of the family who invested
cultural unity of the family are the same. In their savings in educating and bringing up their
practice, all three types are identical until, of children. This does not mean, however, that to-
course, a partition has been claimed by some mem- day there is no need for an asylum for the workless
ber and granted by the joint family. Such parti- and the destitute, for, with the impact of modem
tions are frequent in times of prosperity, a factor Western civilization on India, the once-strong ties
which aids in understanding the useful role of the of the joint family have been gradually but
joint family in the evolution of Hindu culture definitely loosened, and the uncharitable maxim
through strenuous times. But, separation being of "everyone for himself and God for all," reflect-
legal, it has always to be carried out in a court of ing an unbridled individualism, is fast coming to
law. The demand for such separation, with the be the motto of Indian society.
possible objection from some member of the joint It was thus that the joint family, until recent
family, entails prolonged litigation. And litiga- decades, was largely responsible for an almost
tion in India often means eventual ruin. total absence of social services in India. The lack
of social services in the community does not mean,
ITS ADVANTAGES
of course, that none cares for others. On the
It is obvious that this mode of living, a kind of other hand, and in one sense, the joint family has
copartnership on the basis of kinship, demands taught its members to care much more for others
THE FAMILY
than, say, an American or an Englishman will The association in one household of married couples,
ever do. The support and sympathy that one in parents and grandparents tends to soften the angulari-
India extends to others may usually be confined ties of temperament and habit. Of collisions of temper
and habit, jealousies and suspicions, there ought to be
within the limits of the joint family or the com-
no occasion in the household. The older members will
munity, but this means that there is always some
moderate the impetuosity of the younger, and the
relative to whom one could turn in trying times. patience and experience of wider perspectives of the
It is true, of course, that social service schemes in elder would limit the youthful enthusiasm and indis-
the West are planned and put into operation in a cretions of the younger and prevent much of their
systematized and spectacular way, for this belongs cruder manifestations. There is restraint right through
to the province of the state and is not left to the the household, the restraint from word or deed that
discretion or the charitable disposition of an indi- might cause offense or pain. There is respect for the
vidual family. It is sometimes said that an elders, tenderness for the sick or maimed. Within
American or an Englishman or generally any these is one wonderful spirit of equality which demands
Western European may turn his unemployed equal share in income as well as in feasts and festivities
irrespective of age and infirmity.... What is good for
brother out of doors to go on the WPA or poor re-
one is good for all. No special favour is allowed to
lief, but may bequeath a fortune to charity. The be shown by any mother to her children which may
general impression is that a Hindu will support not be shared by other children in the household.
all his unfortunate and less privileged relatives as The joint family affords the best training in the
almost a religious duty, but may not give a cent humanities. Love and affection carried beyond the
to charity. This is true in a restricted sense not narrow circle of the family to embrace relatives of the
only of India but also of China and Japan. second and third degree and the close adjustment
It must not be forgotten, however, that in necessary in a family of many members living together,
ancient Hindu and Muslim India poets and all based on an intimate knowledge of their qualities
painters, writers and artists thrived because of and feelings, help to develop the understanding and
cultivate the emotions.1
patronage both from the rulers and the com-
munity-at-large. The great Indian temples, for ITS DRAWBACKS
instance, the marvelous specimens of ancient
Indian architecture that stand today as mute While the joint family in its historical role
symbols of a glorious past, were all built by Indians served a distinct need and preserved certain
of charitable disposition. They owe their existence desirable family features of the Hindu, in the face
today not only to the magnificent munificence of of heavy odds, it tended to slow down the tempo
the rulers-Hindu, Muslim,- and Buddhist-but of the individual and render the population
also to the benefactions of the common people. immobile. It failed even in earlier times to
It is truly said of certain communities in India encourage a daring and defiant spirit.
that they spend half of their lives feverishly Though the Hindus emigrated to and colonized in
earning money by all means and the other half of the farflung parts of the world, they never became
their lives they spend it in bestowing gifts-schools pioneer adventurers in braving the unknown or
and libraries, temples, and tanks-to the com- founding empires. An English writer whose
munity that made it possible for them to earn that solicitous concern and friendship for India is well
money. Philanthropy in ancient India was private known says of the joint family:
and anonymous, and had nothing of the spectacu- What has seemed always strange to me in my
lar publicity with which the modern millionaire ignorance of what an upbringing means in such a joint
benefactors make their munificent gifts to hu- family is that there have not been more pioneers in the
manity. But it will be erroneous to assume that past who have gone far and wide seeking adventure,
philanthropy as such is absent in India today. It while those dependent on them remained hehind well
is not so vastly impressive and immensely useful looked after under the paternal care of the head of the
family, for anxiety concerning wife and children must
as here in America, but modest beginnings have
immensely be lessened when they are left in such safe
been made.
keeping. It may be the case that the adventurous
The beneficent aspects of the joint family have side of human character is softened by the continual
been ably summed up by an Indian writer whose
great love for this Hindu institution has led him 1K. Kunhikannan, A Civilization at Bay, (Madras,
to say: 1935), p. 219.
SOCIAL FORCES
give and take which the joint family system requires. perimentation, innovation, and ultimate change in
The individual initiative becomes weakened at the a society that is opposed to all change is of great
very time that the gentler side of life is strengthened. 2 advantage. The individual in the joint family is
not an independent unit; he is at best a codrdinat-
The part played by the joint family in the evolu-
ing part. So the group family stands in the way
tion of Indian culture has thus been a mixed bless-
of the free and full development of the individual
ing. This kind of communal living, rather this
family; often even gifted and exceptionally en-
domestic commune, has no close parallel in the
dowed individuals are pulled down to share and
United States or in the United Kingdom, though,
lead the mediocre life of other less gifted members
if the attempts at comparison are stretched, the
of the family. Otherwise the stability of the joint
old clan relationships in the north of Scotland may
family will be shattered just as the strength of a
remind one, to some extent, of the Hindu joint
chain depends on its weakest link. It also leads
family. However, while this institution is pe-
to crowded life especially in our towns and cities
culiar to India and the Orient, it is not without
where very large houses are beyond the command
comparable institutions in Europe. The French
of all and where privacy is almost a privilege. The
provincial family and the Hindu joint family
home side is characterized by the huddling to-
have much in common in their social aspect. In
gether of children, boys and girls, men and women.
France, observes a recent writer:
The individual attention to children in their up-
Family is the kernel of the body politic. The Latin bringing is absent with the result that the physical
Frenchman lives primarily in and for his family. The condition of children and mental outlook in general
last does not consist merely of his wife and children; are far from satisfactory. How far the high rate
it is the regular thing in the provinces, and very com- of infant mortality can be attributed to the
mon even in Paris, for grandparents, parents and crowded joint families has not been definitely
children all to live together forming a whole tribe, ascertained but there is a direct correlation be-
which is generally ruled over by the senior grand-
tween this crowded life of the joint family and the
father. s
slaughter of our innocents.
There is a closer analogy nearer home. The Above all, the joint family breeds a kind of
Hindu family resembles the pre-Revolutionary authoritarianism. To some the lead of the elders
Russian peasant family. in the family is a dictatorship of love like that of
Gandhi, but it is doubtful whether it has ever been
The members of the Russian family held land and so or is so today. It exalts the elders irrespective
livestock in common; ploughing, sowing, reaping and of ability or merit and enthrones authority in
gathering in of harvests-all were carried out by com-
every detail of the individual's life. In its patri-
mon labor. Every member worked for the common
archal pattern, civic loyalty is even sacrificed in
good and the result of the labor was common property
and every member's legitimate need was met. Just favor of filial authority. It generates, in fact, a
as in the Hindu homes even when a son went away from multitude of loyalties and a plurality of allegiances.
home he was still expecting to contribute to the ex- It even stands as a barrier between the individual
penses of the old family.' and the state, as a group within a group. In the
making of a nation loyalty to the family and the
While these Western parallels themselves have tribe are given up in favor of larger and larger
sustained serious shocks and no longer exist in their social groups till the supreme allegiance of the
pristine form, the joint family in India has under-
larger social mind is claimed by the democratic
gone no revolutionary change. Viewed today in
state. But in India, surprisingly, the greatest of
its modern context its grave drawbacks become
loyalty is still to the smallest of groups-the joint
apparent. And the cumulative effect of these
family.
drawbacks has affected adversely Indian society.
The joint family is definitely a force against the To this joint family system must also be traced
freedom of the individual. Individualism has
the implicit obedience and the unquestioning
several drawbacks, but its ability to secure ex-
loyalty that is ingrained in the Hindu social mind
toward all authority-whether it be in the State,
2 C. F. Andrews, True India (1939), p. 251. religion, or social custom. To the ordinaryHindu
1 Cohen Porthein, The Spirit of France (1933), p. 17. there is no defense of doubt even if it is to lay the
1 V. Stepnaik, The Russian Peasantry (1905), p. 239. foundation of belief. To him all authority, secular
THE FAMILY
and spiritual, is sacred regardless of its value or tress of her own little home. Such an independent
validity. What is established must be obeyed family unit of a husband, wife, and children is
and what is old is necessarily good. The libera- necessary to provide the proper atmosphere for
tion of the critical faculty, which throws every the healthy growth of our children amidst neat,
institution, every ideal, and every -ism in the sanitary, and uncrowded surroundings. Today
crucible of reason and thought and which is so such a small, self-contained, independent home is
necessary to a progressive and rational people, is no unnecessary luxury; it is a vital necessity and
impossible in a society in which its primary unit, should be the first step towards a healthy India.
the joint family, itself is an embodiment of the
principle of authority. THE FUTURE OF THE JOINT FAMILY
Not only has the joint family, while nurturing Thus, the Hindu joint family in India has
its own nepotism, impeded social growth, but it played a very distinct and useful role in the evolu-
has led to the most amazing inbreeding-perhaps tion of Indian economic development. But today
the worst of its faults-among the family members the quasiprosperous conditions of a pre-Muslim
and the kinsfolk, which has resulted in the com- era which brought it into existence and the distress
munity's being divided and subdivided into conditions of a post-Muslim and pre-British era
innumerable petty groups until Hindu society has that fostered its growth and preserved it have
almost become a sociological fiction. definitely passed away. The impact of the British
The greatest drawback of the joint family lies conquest on India has resulted in a transitional
in its conservative and reactionary attitude toward social economy, and this indigenous institution
women, their position in the family, and the fails to fit in. In a word, the joint family has
prospects of their progress. Barring the position outlived its utility and it is nothing more than an
of the old mother (or the old widowed sister or the anachronism in modem India. The almost sud-
wife of the eldest brother), who may be called the den superimposition of a Western pattern of life
head of the women's section, the lot of the girls and a European civilization on Indian society has
who come into the family by their marriage to the shaken it rudely, but unfortunately it has not been
sons is anything but happy. In contrast to the completely destroyed.
usually nominal position of the mother-in-law in In recent years, however, disrupting tendencies
the West, the mother-in-law in the Indian home have set in and disintegration of the joint family
is the proverbial tyrant, ill-treating the new has already begun. The leaven of change and
daughter-in-law with a vengence that is vicarious reform which is stirring modem India has affected
at its best. The reason for this tyranny of course this system along with countless others. Gone are
is very simple. The arrival of the daughter-in- the days when grown-up sons lived in the family
law usually signifies the adoption of someone-not household and helped on the father's farm or ham-
exactly a servant or a maid-but somebody who mered in the family smithy or found jobs in the
will be the uncomplaining drudge of the family. vicinity. Today many are compelled to go far
How easily does the domineering mother-in-law afield in search of work and, when they suceed, they
forget that she, too, was once a meek daughter- naturally set up homes of their own. And they
in-law! Perhaps the mother-in-law's very recol- find it difficult and distasteful to pool their meager
lection and recognition of her sad days as a resources, as before, by way of contributions to
daughter-in-law urges her to wreak a kind of the distant joint family. The modem wife not
vicarious vengeance on the young and innocent only protests against such contributions to the
daughter-in-law. The joint family is so consti- husband's joint family, but also resents the edicts
tuted that the sympathy and understanding, of do's and don't's that emanate from there. All
affection and love of the husband are denied to these, if developed on sound lines should be wel-
the young bride across the artificial wall of the come but revolutions in altering family traditions
female group. Its effect on the sensibility of a and ideals are not wrought overnight and reform
young bride tom from the familiar moorings of has been slow. The pernicious influence of the
her own home in a new family and amidst strange joint family still persists in parts of India with a
surroundings, to say the least, is deadening. tenacity that is alarming. Its abolition must be
Nothing will better the deplorable lot of Indian hastened to develop our social mind and civic
womanhood unless and until the family units are consciousness along sound lines to doubly justify
so reconstructed that every wife becomes a mis- our legitimate claim of India as a Nation.
2008-2009] 27
COPARCENARY UNDER HINDU LAW :

BOUNDARIES REDEFINED
Vijender Kumar*
Introduction
In Hindu social system, Dharmasastras do not separate the spiritual
from the secular, therefore, in the grasthasrama a person is given
the training to lead a complete and meaningful life for the benefit
and welfare of those who left and those who are present and
those who will be born. It is a unique phenomenon of Hindu
philosophy that the Hindu family has been thought of as one of the
most important institutions because all other institutions like
brahmacharya, vanaprastha and sanyasha depend on it. Hence,
the importance of the family is advocated in the Dharmasastras.
The coparcenary as understood in Hindu law has its origin in the concept
of Daya as explained by Vijnaneshwara while commenting on Yajnavalkyasmriti
in the Daya vibhaga prakranam vayavahara adhaya. Here, Vijnaneshwara
discussed that Daya is only that property which becomes the property of another
person, solely by reason of relation to the owner. The words solely by reason of
relation exclude any other cause, such as purchase or the like.1
Narada also approves the meaning of the Daya which is a coparcenary
property because according to him, sons can divide only father’s property which
has been approved by the learned (Svatvanimitasambandhopalashanam).
* Professor of Law, Head-Centre for Family Law, NALSAR University of Law, Justice City,
Shameerpet, Hyderabad.
1 Solely by reason of relation: “solely” excludes any other cause, such as purchase or the like.
“Relation”, or the relative condition of parent and offspring and so forth, must be understood of
that other person, a son or kinsman, with reference to the owner of the wealth. (Balam Bhatta).
The meaning is this: wealth, which becomes the property of another, (as a son or other person
bearing relation,) in right of the relation of offspring and parent or the like, which he bears to his
father or other relative who is owner of that wealth, is signified by the term heritage. (Subodhini).
In right of their being his sons or grandsons: a son and a grandson have property in the wealth of
a father and of a paternal grandfather, without supposition of any other cause but themselves.
Theirs consequently is inheritance not subject to obstruction. (Subodhini). Property devolves on
parents: Visweswara Bhatta reads “parents, “brothers, and the rest”, (pitri-bhratradinam), and
expounds it ‘both parents, as well as brothers and so forth’. Balam Bhatta writes and interprets
an ‘uncle and a brother or the like’, (pitrivya-bhratradinam), but notices the other reading. Both
are countenanced by different copies of the text. The same holds good in respect of their sons:
here the sons or other descendants of the son and grandson are intended. The meaning is this: if
relatives of the owner be forthcoming, the succession of one, whose relation to the owner was
immediate, is inheritance not liable to obstruction, but the succession of one, whose relation to
the owner was mediate or remote, is inheritance subject to obstruction, if immediate relatives
exist. (Subodhini). In respect of their sons: meaning sons and other descendants of sons and
grandsons, as well as of uncles and the rest. If relatives of the owner be forthcoming, the
succession of one, whose relation was immediate, comes under the first sort; or mediate, under
the second. (Balam Bhatta); H.T.Colebrooke, Daya-Bhaga and Mitaksara, 1984, pp. 242-243.
28 NALSAR Law Review [Vol.4 : No.1
Therefore, the unique concept of coparcenary is the product of ancient Hindu

jurisprudence which later on became the essential feature of Hindu law in general
and Mitakshara School of Hindu law in particular.
The concept of coparcenary as understood in the general sense under
English law has different meaning in India or Hindu legal system. In English
law, coparcenary is the creation of act of parties or creation of law. In Hindu
law, coparcenary cannot be created by acts of parties, however, it can be
terminated by acts of parties. The coparcenary in Hindu law was limited only to
male members who descended from the same male ancestors within three
degrees. These coparceners have important rights as regards to property of the
coparcenary but so long the coparcenary remains intact no member can claim
any specific interest in any part of the property of the coparcenary because of
the specific nature of coparcenary in the Mitakshara School of Hindu law.
However, under Hindu law, the coparcenary in the Mitakshara and the
Dayabhaga Schools of Hindu law have different meanings with the result that
this difference in the concepts of coparcenary of the Mitakshara and the
Dayabhaga Schools of Hindu Law resulted in the difference of definition of
partition and the duty of the son to pay the debt of his father. Therefore, the
deviation in the original concept of coparcenary is the result of social and
proprietary influence. Hence, when females are made entitled to become
coparceners it does not militate against the nature and concept of coparcenary
because it is the social and proprietary aspect which prominently make it
necessary that females should be included in the concept of coparcenary.
However, the term Apatya (child) is a coparcener because according to Nirukta,
Apatya means child which includes both son and daughter. Therefore, when a
female is made a coparcener, it is only the recognition of the meaning of child in
its true sense without making any distinction between a son and a daughter.
Now, a question which may arise in the case of a daughter is how the
coparcenary interest will be determined at the time of her marriage. In fact, it
would pose no problem because the male members of a coparcenary can
determine the coparcenary interest any time at their will so why should there be
any difficulty in the case of daughters. In fact, the main emphasis is on granting
the proprietary rights to female children equal to the proprietary rights of male
children. Therefore, the marriage of a daughter may or may not have any impact
on the proprietary interest rather it will depend upon the will of the female
herself. The division of property of a coparcenary will depend on the nature of
the property whether the property which is in the hands of the coparceners is
ancestral property or it is the self acquired property of the coparceners. This
problem has already been in existence both in the Mitakshara and the Dayabhaga
Schools of Hindu law and the solution of the problem of division or partition of
2008-2009] Coparcenary under Hindu Law : Boundaries redefined 29
coparcenary property may follow either the pattern followed in Hindu law or
statutory provisions may be made in this behalf. But, in any case inclusion of a
female child in coparcenary is not against the letter and spirit of Hindu law.
Concept of Coparcenary: Historical Perspective
Coparcenary is “unity of title, possession and interest”. To clarify the
term further, a Hindu Coparcenary is a much narrower body than a Hindu joint
family, it includes only those persons who acquire by birth an interest in the
coparcenary property, they being the sons, grandsons, and great-grandsons of
the holders of the property for the time being.
The Black’s law dictionary gives a more comprehensive explanation of
the term coparcenary. It says, “such estate arises where several take by descent
from same ancestor as one heir, all coparceners constituting but one heir and
having but one estate and being connected by unity of interest and of title. A
species of estate, or tenancy, which exists where lands of inheritance descend
from the ancestor to two or more persons. It arose in England either by common
law or particular custom. By common law, as where a person, seised in fee-
simple or fee-tail, dies, and his next heirs are two or more females, his daughters,
sisters, aunts, cousins, or their representatives; in this case they all inherit, and
these coheirs, are then called “coparceners”, or, for brevity “parceners” only.
By particular custom, as where lands descend, as in gavelkind, to all the mates
in equal degree, as sons, brothers, uncles etc…An estate which several persons
hold as one heir, whether male or female. This estate has the three unities of
time, title and possession; but the interests of the coparceners may be unequal.”2
In Dharmasastra coparceners are referred to as Sahadaee. The term
coparceners came to be used as a result of influence of Western Jurisprudence.
Therefore, the present concept is not very difficult from the earlier one. The
justification of coparcenary according to the Mitakshara School is that those
who can offer funeral oblations (Pindh-daan) are entitled to the property. The
concept of Pindh-daan is that the person who offers funeral oblations share
the same blood with the person to whom he is offering a Pindh.
A coparcenary is purely a creation of law; it cannot be created by act of
parties, except by adoption. In order to be able to claim a partition, it does not
matter how remote from the common ancestor a person may be, provided he is
not more than four degrees removed from the last male owner who has himself
taken an interest by birth.3
2 Joseph R. Nolan et al., Black’s Law Dictionary, 6th ed. 1990, p. 335.
3 P.V.Kane, History of Dharmasastra, Vol. III, 3rd ed. 1993, p. 591. Vide Moro v. Ganesh, 10 Bm.
HCR, p. 444, pp. 461-468 where Mr. Justice Nanbhai Haridas very lucidly explains by several
diagrams the limits of a coparcenary and what persons are entitled to demand a partition and
from whom.
In Hindu law of succession the coparcenary is still not codified. There

are two Schools, viz., the Mitakshara and the Dayabhaga. According to the
Mitakshara School, there is unity of ownership - the whole body of coparceners
is the owner and no individual can say, while the family is undivided that he has
a definite share as his interest is always fluctuating being liable to be enlarged
by deaths and diminished by birth in the family. There is also unity of possession
and enjoyment. Further, while the family is joint and some coparceners have
children and others have few or none or some are absent, they cannot complain
at the time of partition about some coparceners having exhausted the whole
income and cannot ask for an account of past income and expenditure. Katyayana
expressly states that the joint family property devolves by survivorship that is
on the death of a coparcener his interest lapses and goes to the other
coparceners. The conception of coparcenary under the Dayabhaga School is
entirely different from that of the Mitakshara School. Under the Dayabhaga
School, sons do not acquire any interest by birth in ancestral property, but the
son’s right arises only on the father’s death and the sons take property as heirs
and not as survivors.
However, the coparcenary in Hindu law is not identical to the coparcenary
as understood in English law. Thus, in the case of death of a member of
coparcenary under the Mitakshara law, his interest devolves on the other
members by survivorship while under English law, if one of the co-heirs jointly
inheriting properties dies, his or her right goes to his or her legal heirs.
Mitakshara School of Hindu Law
It is important to note the distinction between ancestral property and
separate property. Property inherited by a Hindu from his father, father’s father,
or father’s father’s father, is ancestral property. Property inherited by him from
other relations is his separate property. The essential feature of ancestral property
is that if the person inheriting it has sons, grandsons, or great grandsons, they
become coparceners with him and become entitled to it by reason of their birth.
Thus, if A, who has a son B, inherits property from his father, it becomes ancestral
in his hands, and though A, the head of the family, is entitled to hold and manage
the property, B is entitled to an equal interest in the property with his father, A
and to enjoy it in common with him, B can, therefore, restrain his father from
alienating it except in the exceptional circumstances, viz., apatkale,
kutumbharte, dharmarte or legal necessity. Such alienation is allowed by law
and he can enforce partition of it against his father. On his father’s death, he
takes the property by survivorship and not by succession.4 However, as to
4 Section 6 of the Hindu Succession Act, 1956: When a male Hindu dies after the commencement
of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his
interest in the property shall devolve by survivorship upon the surviving members of the
coparcenary and not in accordance with this Act:
separate property, a man is the absolute owner of the property inherited by him
from his brother, uncle, etc. His son does not acquire an interest in it by birth
and on his death, it passes to the son not by survivorship but by succession5.
Thus, if A inherits from his brother, it is his separate property and it is absolutely
at his disposal. His son B acquires no interest in it by birth and he cannot claim
partition of it nor can he restrain A from alienating it. The same rule applies to
the self acquired property of a male Hindu. But it is of the utmost importance to
remember that separate or self-acquired property, once it descends to the male
issue of the owner becomes ancestral property in the hands of the male issue
who inherits it. Thus, if A owns separate or self-acquired property it will pass
on his death to his son B as his heir. But in the hands of B it is ancestral property
as regards his sons. The result is that if B has a son C, C takes an interest in it
by reason of his birth and he can restrain B from alienating it, and can enforce
a partition of it as against B.
Ancestral property is species of coparcenary property. As stated before,
if a Hindu inherits property from his father, it becomes ancestral in his hands as
regards his son. In such a case, it is said that the son becomes a coparcener
with his father as regards the property so inherited and the coparcenary consists
of the father and the son. But this does not mean that a coparcenary can consist
only of a father and his sons. It is not only the sons but also the grandsons and
great grandsons who acquire an interest by birth in the coparcenary property.
Thus, if A inherits property from his father and he has two sons B and C, they
both become coparceners with him as regards the ancestral property. A, as the
head of the family, is entitled to hold the property and to manage it and hence is
called the manager of the property. If B has a son D and C has a son E, the
coparcenary will consist of the father, sons and grandsons, namely, A,B,C,D,
and E. Further, if D has a son F, and E has a son G, the coparcenary will consist
of the father, sons, grandsons, and great grandsons, in all, it will consist of seven
members. But if F has a son H, H does not become a coparcener, for a
coparcenary which is limited to the head of each stock and his sons, grandsons,
and great grandsons. H being the great great-grandson of A cannot be a member
of the coparcenary so long A is alive.
Genesis of Coparcenary
A coparcenary is created when, for example, a Hindu male A, who has
5 Section 8 of the Hindu Succession Act, 1956: The property of a male Hindu dying intestate shall
devolve according to the provisions of this Chapter -
(a) Firstly, upon the heirs, being the relatives specified in Class I of the Schedule;
(b) Secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in
Class II of the Schedule;
(c) Thirdly, if there is no heir of any of the two Classes, then upon the agnates of the deceased;
and
(d) Lastly, if there is no agnate, then upon the cognates of the deceased.
inherited no property at all from his father, grandfather or great grandfather,

acquires property by his own exertion. A has a son B, B does not take any
vested interest in self-acquired property of A during A’s life time, but on A’s
death he inherits the self-acquired property of A. If B has a son C, C takes a
vested interest in the property by reason of his birth and the property inherited
by B from his father A becomes ancestral property in B’s hands, and B and C
are coparceners as regards this property. If B and C continue joint and a son D
is born to C, he enters into the coparcenary by the mere fact of his birth. And if
a son E is subsequently born to D, he too becomes a coparcener with his father
and grandfather.
Though a coparcenary must have a common ancestor to start with, it is
not to be supposed that at every extent coparcenary is limited to four degrees
from the common ancestor. A member of a joint family may be removed more
than four degrees from the common ancestor (original holder of coparcenary
property) and yet he may be a coparcener. Whether he is so or not depends on
the answer to the question whether he can demand partition of the coparcenary
property. If he can, he is a coparcener but not otherwise. The rule is that partition
can be demanded by any member of a joint family who is not removed more
than four degrees from the last holder, however, remote he may be from the
common ancestor or original holder of the property.
When a member of a joint family is removed more than four degrees
from the last holder he cannot demand partition, and therefore, he is not a
coparcener. On the death, however, of the last holder, he would be entitled to a
share on partition, unless his father, grandfather and great grandfather had all
predeceased last holder. The reason is that whenever a break of more than
three degree occurs between the holders of property the coparcenary comes to
an end.
Another important element of a coparcenary under the Mitakshara law
is unity of ownership. The ownership of the coparcenary property is in the
whole body of coparceners. According to the rule, the notion of an undivided
family governed by the Mitakshara law, no individual member of that family
whilst it remains undivided can predicate of the joint and undivided property
that he, that particular member has a definite share, one third or one fourth. His
interest is a fluctuating interest, capable of being enlarged by deaths in the
family and liable to be diminished by births in the family. It is only on partition
that he becomes entitled to a definite share. The most appropriate term to
describe the interest of a coparcener in coparcenary property is “undivided
coparcenary interest”. The rights of each coparcener until a partition takes
place consist in a common possession and common enjoyment of the coparcenary
property. As observed by the Privy Council in Katama Natchiar v. The Rajah
of Shivaganga,6 there is community of interest and unity of possession between

all the members of coparcenary, and upon the death of any one of them, the
others will take by survivorship in which they had during the deceased’s life
time a common interest and a common possession.
The Supreme Court has summarised the position and has observed that
the coparcenary property is held in collective ownership by all the coparceners
in a quasi corporate capacity. The incidents of coparcenary are: first, the lineal
male descendants of a person up to the third generation, acquire on birth
ownership in the ancestral properties of such person; secondly, that such
descendants can at any time work out their rights by asking for partition; thirdly,
till partition each member has ownership extending over the entire property
jointly with the rest; fourthly, as a result of such co-ownership, the possession
and enjoyment of the properties is common; fifthly, no alienation of the property
is possible unless it is for necessity, without the concurrence of the coparceners;
and lastly, the interest of a deceased member passes on his death to the surviving
coparceners.
Dayabhaga School of Hindu Law
The conception of coparcenary and coparcenary property according to
the Dayabhaga School is entirely distinct from that of the Mitakshara School.
According to Mitakshara School, a son acquires at birth an interest with his
father in ancestral property held by the father and on the death of the father the
son takes the property, not as his heir, but by survivorship. According to
Dayabhaga School, the son does not acquire an interest by birth in ancestral
property. Son’s right arises only on the death of his father. On the death of the
father he takes such property as is left by him whether separate or ancestral, as
heir and not by survivorship.
According to the Mitakshara School, the foundation of coparcenary is
first laid on the birth of a son. The son’s birth is the starting point of a coparcenary
according to Mitakshara School. Thus, if a Hindu governed by the Mitakshara
School has a son born to him, the father and the son at once become coparceners.
According to Dayabhaga School, the foundation of a coparcenary is laid
on the death of the father. So long as the father is alive, there is no coparcenary
in its strict sense of the word between him and his male issue. It is only on his
death leaving two or more male issues that a coparcenary is first formed. Thus,
it would be correct to say that the formation of a coparcenary does not depend
upon any act of the parties. It is a creation of the law. It is formed spontaneously
on the death of the ancestor. It may be dissolved immediately afterwards by
6 (1863) 9 MIA 539.

partition but until then the heirs hold the property as coparceners. These
observations must obviously be read in the context of a father dying leaving two
or more male issues who would constitute a coparcenary, though of course, in
their case, there would be only unity of possession and not unity of ownership.
Thus, till a partition by metes and bounds, that is, actual and final distribution of
properties takes place, each coparcener can say what his share will be. In
other words, none of them can say such and such property will fall to his share.
Each coparcener is in possession of the entire property, even if he has no actual
possession, as possession of one is possession of all. No one can claim any
exclusive possession of property unless agreed upon by coparceners.
In Sudarsana Maistri v. Narasimhulu,7 it was held that a joint family
and its coparcenary with all its incidents are purely a creature of Hindu law and
cannot be created by act of parties, as the fundamental principle of the joint
family is the tie of sapindaship arising by birth, marriage and adoption.
Andhra Pradesh Module: Step towards Proprietary Equality
The Hindu Succession Act, 1956 has conferred rights of succession on
Hindu females as provided in Section 6 of the Act, relating to succession to an
undivided interest in a joint family property when a coparcener dies intestate.
But a male was free to dispose of inter vivos or by will, his interest in the joint
family property which meant the female could still be deprived of proprietary
right. Considering it unfair to exclude a daughter from participation in the
ownership of coparcenary property, and in order to confer the right to property
by birth on a Hindu female and assimilate her to the position of a male member
of a coparcenary, a Bill, L.A. Bill 12 of 1983 was introduced in the Andhra
Pradesh Legislative Assembly. The Bill was enacted by the Andhra Pradesh
State Assembly on September 25, 1985 and received the assent of the President
and came into force on September 5, 1985.
The Hindu Succession Act, 1956 was amended by introducing a new
Chapter, Chapter II-A consisting of Sections 29-A, 29-B and 29-C. Section 29-
A provides that the daughter becomes a coparcener by birth along with other
male members and has a right to obtain partition having the equal share with
son. Section 29-B provides that a daughter’s interest in the joint family property
would devolve by survivorship upon the surviving members of the coparcenary
and not in accordance with the Hindu Succession Act. The Hindu Succession
(Andhra Pradesh Amendment) Act, 1986 was extended to the whole of the
State of Andhra Pradesh.
7 (1902) 25 Mad. 149.

This was a very progressive measure and removed to a large extent the
inequality between males and females among Hindus with regard to property
under Hindu law. The example set by Andhra Pradesh has been followed by
other States, viz., the Hindu Succession (Tamil Nadu Amendment) Act, 1989, the
Hindu Succession (Maharashtra Amendment) Act, 1994, and the Hindu Succession
(Karnataka Amendment) Act, 1994. In order to have a uniform law for the whole
of India it was hoped that all other States would follow this example or the Union
Legislature would amend the Principle Act of 1956 on the above lines.
In Narayan Reddy v. Sai Reddi,8 where in a suit for partition of joint
family properties, a preliminary decree was passed ascertaining the share of
the parties, it was held that it was open to the unmarried daughter to claim
share in those properties under Section 29A as amended by A.P. Amendment
Act, 1986 before the passing of the final decree.
In Ashok Kumar Ratanchand v. CIT,9 the A.P. High Court held that
where a coparcener who obtains property on partition and marries subsequently,
the status of unit of assessment after marriage is necessarily that of a Hindu
undivided family and the income from such property is assessable in that status
and not in the status of the individual. After discussing the entire case law on
the subject, the Court observed that the property which a coparcener obtains
on partition does not become for all times his individual and separate property.
If he has a wife or a daughter, depending on him the property will be charged by
the obligation to maintain them. If he marries later, his property, ancestral or
self-acquired, will be burdened by an obligation to maintain his wife. If he begets
a son, that son becomes entitled to a share in the property which thereby revives
the character of joint family property. If he begets only daughters, the obligation
to maintain them will be fastened on the property. An unmarried Hindu male,
obtaining a share of ancestral property on partition retains the property as his
absolute property. But after marriage the property becomes encumbered by an
obligation to maintain his wife or other dependents. It sheds the character of
separate property and revives its character as joint property of the smaller unit
consisting of himself and his wife. In that limited sense, the income therefrom
may be the income of the Hindu undivided family consisting of himself and his
wife.10
The main points for consideration and elucidation of the consequences
of the result of statutory inclusion of a daughter in the category of Mitakshara
Coparcenary were that the anomalies and inconsistencies must be eliminated.
As for the anomaly, it is to be made clear that at the time of marriage, the
8 AIR 1990 AP 263.

9 (1990) 186 ITR 475.
1 0 Ibid, p. 488.
daughter must for all purposes cease to be a member of the coparcenary in the
family of her birth. The anomaly is that by virtue of marriage she has become
the member of the family of her husband and the member of her husband’s
family cannot be the member of coparcenary of her family of birth. However,
for the purpose of succession under Section 6 of the Hindu Succession Act,
1956, she will remain an heir in the Class I of the Schedule and as for the
inconsistency, it would be inconsistent to regard her children to be the members
of the coparcenary of their mother’s family, because in the case of male
coparceners, the children of the coparceners become the member by virtue of
their birth in the family. But the daughter’s children, in lieu of the coparcenary
membership of their mother’s family, get the membership of coparcenary of
the family in which their mother is married, so there is no denial of any equality
to the daughter of a daughter by denying her the coparcenary membership in
the family of her mother’s birth.
It was felt that not many cases on the Hindu Succession (Andhra Pradesh
Amendment) Act, 1986 for claiming coparcenary interest were coming up in
Courts. There might be two reasons for this. First, it might be that they were
satisfied with the newly created statutory right in their favour. The second
reason might be that the females did not want to disturb the existing usages,
customs and practices of their family of birth. This reason seems to be the most
plausible reason. Granting of coparcenary interest to females not only brings
them proprietary interest but at the same time the females are also liable to the
same duties to pay the debt of their father as the males are and after satisfying
the debt their interest can be taken. Therefore, whether they do not claim the
interest they would still be liable to pay the debt of their father. Further, the
coparcenary interest will also be affected when a Karta alienates the joint
property of the coparcenary. If the alienation is for legal necessity or for the
benefit of the estate or for the welfare of the family, the female coparcener will
be bound by the alienation unless she proves that the alienation was not for
legal necessity or for the benefit of the estate or for the welfare of the family or
that it was immoral or illegal. The aforesaid implications are not imaginary but
they are natural and practical problems which the law must take into account.
Evaluation
The ownership and transfer of ownership is crucial to an understanding
of the economic and social functioning of the institution of the family. It is
impossible to study the relevance of the Hindu joint family, without examining
the provisions of law relating to property. In other words, it is imperative that
there exists an identification of the members of a family, who are entitled to
inherit and pass on the property. It is the members of the family who hold and
manage the joint family property.
In ancient times, everywhere, property could be owned by the patriarch

of the family, who had an absolute control over persons and property of the
family. The patriarch was held to be responsible for all the matters relating to
household, ultimately earning him the title of the “Grahapati” or master of the
household. In Roman law, he was known as Patria Potestas. The patriarchal
system also laid the foundations for the system of primogeniture, whereby, the
eldest male member of the family was deemed worthy of inheriting the family’s
property. Briefly speaking, this was the mindset of the Vedic Scholars, who
spoke of property distribution, ownership and transfer. The concept of the
coparcenary finds its origins against this very socio-economic backdrop. The
coparcenary consisted of all those members within a family, who were identified
as those capable of managing, and deserving of holding property. The members
of the coparcenary were in better financial position than others, as they held
within their hands, the reigns to the family’s property and consequently, were at
the helm of the family’s economic affairs.
The constitution of the coparcenary differed depending on the customs
and practices of the region. The multiplicity of customs led to the broad
classification of customs related to property in two Schools, viz., the Mitakshara
and the Dayabhaga. The coparcenary in Mitakshara law can be defined as a
group consisting of all those males who take by birth an interest in the joint or
coparcenary property. These include father, his son, son’s son, and son’s son’s
son.11 The same was envisaged by Section 6 of the Hindu Succession Act,
1956. Some eminent scholars are of the opinion that discriminatory treatment
has always been meted out to women. The coparcenary has always been
considered a narrower body within the joint family. In other words, these scholars
are of the opinion that the control of the ancestral property continued to rest in
a patrilineal regime.
The Amendment made to the Hindu Succession Act, 1956 in 2005 has
attempted to make the daughter of coparcener a ‘coparcener’. This amendment
was made under the pretext of allowing for gender friendly succession laws.
However, there are many ambiguities surrounding an understanding the Hindu
Succession (Amendment) Act, 2005. There are several implications of the
amendment, the most significant being a possible reconstitution of the Mitakshara
Coparcenary. By introducing the daughter as a coparcener, the traditional
patriarchal nature of the coparcenary has experienced a dramatic change. There
is a confusion surrounding the definition of the Mitakshara Coparcenary, in the
light of the Hindu Succession (Amendment) Act, 2005 - the position of the
“daughter of a coparcener” is one which needs to be examined better.
11 P.V. Kane, History of Dharmasastra, Vol. III, 3rd ed. 1993, p. 591.
Section 6 of the Hindu Succession (Amendment) Act, 2005 clearly states

that the daughter of a coparcener shall by birth become a coparcener in her
own right in the same manner as the son. It also states that she shall have the
same rights in the coparcenary property as she would have had she been a son,
and that she would be subject to the same liabilities. The daughter is thus, an
acceptable member of the Hindu coparcenary, by virtue of the Section 6 of the
Hindu Succession (Amendment) Act, 2005. However, the matter is not so simple.
The first problem encountered on examining Section 6 entails the lack of
an explicit distinction between married and unmarried daughters. This fact must
be emphasized as the married and the unmarried daughter do differ in respects
such as membership of family; something which is crucial to the notion of the
coparcenary. However, working under the assumption that the term daughter,
as used in the Act, is inclusive of both married and unmarried daughters, it is
necessary to understand that the attempt to distinguish between a married and
unmarried daughter might prove futile, with respect to defining the coparcenary.
Another interesting problem while defining the coparcenary concern the
inclusion or exclusion of the adopted daughter is concerned. The text of the
Section 6 of the Hindu Succession (Amendment) Act, 2005 nowhere mentions
any reference to an adopted daughter, but maintains the inclusion of only a
daughter by birth, as a part of the coparcenary. Thus, for all practical purposes,
it is impossible to include the adopted daughter in the new definition of the
coparcenary - a matter which needs to be re-examined.
The crux of the problems lies in the confusion which surrounds the phrase,
“the daughter of a coparcener”. It is clear from a reading of Section 6 that the
daughter of the propositus is most definitely a coparcener, entitled to a share in
the coparcenary property, equal to that of her brother’s. However, it is necessary
to understand that the applicability of this phrase is restricted to this interpretation
alone. In other words, it is incorrect to include the daughter’s children as
coparceners in their mother’s family. The text of Section 6 clearly makes no
mention of the daughter’s son, and hence, it may be safely assumed that he is to
be excluded from his mother’s coparcenary. However, while there is ambiguity
surrounding the position of the daughter’s daughter, it is impractical to suggest
that the daughter of the daughter may be considered a member of her mother’s
coparcenary. On marriage the daughter ceases to be a member of her family of
birth. Thus, she is a coparcener in her natal family, but no longer a member of
it. Her daughter will receive a share in her father’s coparcenary. If the daughter’s
daughter is allowed a share in the mother’s coparcenary, she would be the
recipient of a double share that is, a share from each of her parent’s coparcenary.
Thus, the daughter’s children cannot be made coparceners.
This emphasises the unfair advantage attributable to the daughter’s

children that stems from problems linked to membership of a family. In essence,
the married daughter’s share in her father’s coparcenary will only serve to help
her husband’s family. Thus, there is a crucial problem surrounding the membership
of a family, and the coparcenary itself.
It is necessary to note that the system of the Mitakshara coparcenary
loses its meaning, as membership of joint family is no longer a pre-requisite.
The amended Section 6 of the Hindu Succession Act, 1956 has made a daughter
who is not a member of the family, a coparcener. The system of the coparcenary
proves itself futile as no matter how the property passed onto the married
daughter, it will only benefit the family of her marriage. In essence, it is perhaps
time to reconsider the notion of the coparcener, and in effect re-look the
constituents of the Hindu joint family. However, based on the analysis of the
sources mentioned above it is suggested that the Mitakshara coparcenary shall
now consist of “the common ancestor, the son, son’s son, son’ son’ son, the
daughter of common ancestor, son’s daughter and son’s son’s daughter”.
The Hindu Succession (Amendment) Act presumes the married female’s
continuance in the family of her birth. This presumption is neither logical nor
workable. Therefore, the Act must provide that a daughter on marriage ceases
to be the coparcener in the family of her birth … that the coparcenary interest
of a daughter in the family of her birth would be determined at the time of
marriage. Her interest will be ascertained on the date of the marriage presuming
that it was the date on which the severance of her status has affected and it
must follow actual division of coparcenary property (partition)…otherwise the
Act will create more problems than it solves. The net result would be social and
family feuds and tensions. Therefore, it is suggested that the aforesaid provision
regarding continuance of a daughter as coparcener even after marriage be
removed.
Further, it is submitted that the Hindu Succession (Amendment) Act makes
discrimination between a daughter born in the family and a daughter adopted in
the family of her adoption. Therefore, this anomaly must be removed by making
an amendment in the existing Act to absorb adopted daughter in the family of
her adoption as a coparcener as is done in the case of an adopted son.
Finally it is submitted that if there is a real desire to help the female in
general and the Hindu female in particular in the light of the Hindu Succession
(Amendment) Act, 2005, the provisions to make the wife a sharer in the property
at the moment of her entry into the family of her marriage must be made. Since
her entry in the family of her marriage is not temporary but is permanent for
life, the female should be made a sharer in the property of the relations of her
husband. Where the husband is a sharer, she should be an equal sharer with her
husband. If the Parliament is serious to improve financial position of Hindu

female, the wife, who is the other half of her husband, it should make a law that
should give her equal economic rights in the property of her husband and equal
right of heirship with her husband in the property of relatives of her husband as
she is the inseparable half of her husband. It will be in total conformity with the
spirit of Hindu view of life as she is Sapinda Gotraja. On the analogy and
rationale of Dattaka, all her rights must cease in the family of her birth after
marriage and consequent replacement must take place in the family of her
marriage. Further, every marriage must be registered.12 If these provisions
are made, divorce will become only an exception, and on divorce a Hindu female
should be divested of all her properties which she had got by virtue of her
marriage.
1 2 Seema v. Ashwani Kumar, AIR 2006 SC 1158: the Supreme Court held that marriages of all
persons, citizens of India, belonging to various religions should be made compulsorily registrable
in their respective States, where marriage is solemnized.
BASIS AND NATURE OF PIOUS OBLIGATION OF SON TO PAY FATHER’S
DEBT VIS-À-VIS STATUTORY MODIFICATIONS IN HINDU LAW
Vijender Kumar
Introduction
Moral and legal obligations have common origin but the technology of their enforcement
differs. Twentieth century jurisprudence concerned itself with legal obligations only. Because,
generally, all legal obligations have their origin in moral obligations since, law has been
defined as “minimum morality”. When an act affects the interests, rights and obligations of
persons other than that of the doers the basis for law making, i.e., placing restrictions on the
acts of persons whose acts affect other‟s interests, is justified. It is the duty of the state to
prevent harm to third persons by the acts of others. The justification for making law is
prevention of harm to others.
The liberty of the person to act as one‟s wishes is protected so long as it is not harmful to
others. The approach of the ancient Indian thinkers as to the concept of liberty was different.
They will not permit an individual to do as one pleases, if his action is injurious to his own
interest only and the third party is not affected. The ancient Indian codes embody norms
prescribing conduct for individuals, and these norms have a priori basis, for example, if a
person does not perform prescribed daily duties he is punished in the next world and incurs sin.
It is this type of belief which is at the root of the doctrine of pious obligation of the son to pay
the debt of his father.
Bases of Pious Obligation in Ancient Indian Literature
Ancient Indian legal literature is unique in its approach as to the authority of morals
which was recognised even by the judiciary during the British Indian period, when precedence
to moral obligations was given over legal rights. Pious obligation of the son is one such moral
obligation where precedence to moral obligation was given over legal rights. A perusal of
Vedic literature, the most ancient written record, makes one feel astonished as to how
conscientious and serious thought has been given to the concept of debt and its payment. “The
idea of the liability to pay off one‟s debts was developed in India in the most ancient times”.1
It has been said, “let us drive away the evil effects of bad dreams as we pay off debts”.2 The
evolution and development of the concept of runa and the importance attached to its paying
back is the basis of the modern doctrine of pious obligation of the son to pay the debt of his
father; P. V. Kane observes :
It appears to me that this theory of spiritual debts being already in the air, the
same sanctity came gradually to be transferred to one‟s promises to repay
monetary debts and carry out other secular engagements. The word runa had been
applied both to spiritual and secular debts. It is on account of this that the son was
not only desired for repaying the spiritual debt owed to one‟s ancestors, but he
Original research paper was published in the Journal of Indian Law Institute, New Delhi at 36 (1994)
JILI 339-355.
Professor of Law, Head, Centre for Family Law, NALSAR University of Law, Justice City,
Shameerpet, Hyderabad- 500 078.
1 P.V. Kane, HISTORY OF DHARMASASTRA, vol. III, 2 nd ed. 1972, p. 414.
2 Rg. VIII, 47, 17 ; vide P.V. Kane, HISTORY OF DHARMASASTRA, vol. III, 2 nd ed. 1972.
1
was also expected to free his father (if the father could not himself repay the
monetary debt) from the liability he incurred to his creditor.1
P.V. Kane‟s view is perfectly in consonance with the philosophy of ancient Indian law
codes, popularly known as Dharmasastras.2 The ancient Indian literature is full of evidence of
the importance given to the discharge of liability to pay off debt from ancient times.
According to ancient Indian thought one is born indebted; and is under an obligation to
discharge the liability.3
Liability of Son to pay father’s Debt according to Dharmasastras
First of all it would be proper to examine the texts occurring in the code of Manu dealing
with the son‟s pious obligation. Manu states that when a son has paid the three debts, let him
apply his mind to (the attainment of) final liberation; he who seeks it without having paid (his
debts) sinks downwards.4 Having studied the Vedas in accordance with the rules, having
begotten sons according to the sacred law, and having offered sacrifices according to his
ability, he may direct his mind to (the attainment of) final liberation. 5 A twice-born man, who
seeks final liberation, without having studied the Vedas, without having begotten sons, and
without having offered sacrifices, sinks downwards.6 Because a son delivers (trayate) his
father from the hell called put, he was therefore called put-tra (a deliverer from put) by the
self-existent (svayambhu) himself.7 Between a son‟s son and the son of a daughter there exists
in this world no difference, for even the son of a daughter saves him (who has no sons) in the
next world, like the son‟s son.8
These texts state that the son was desired not for the sake of spiritual reasons alone but
one of the most important reasons was the desire of the father to secure guarantee through the
birth of a son for the discharge of his secular liability also, most important of the liabilities
being the liability to pay off one‟s debt. The non-payment of debt not only affected the next
life of the debtor but it also made the life of the debtor miserable in this world itself. A very
detailed account of the liability of the son to pay off his father‟s debt has been given by
Narada.
Which debts must be paid, which other debts must not be paid; by whom, and in what
form (they must be paid); and the rules of gift and receipt, (all that) is comprised under the title
1 P.V. Kane, HISTORY OF DHARMASASTRA, vol. III, 2 nd ed. 1972, p. 416.

2 Narada IV, 5, 9; Katyayana, 551, VI, IX; Manu, 35, 37; Vasishtha, 17.5; Vishnu Dharmasastra, 15, 46.
3 From very ancient times one of the articles of faith was that a man was born with debts that he owed three
debts to Sages, Gods, and Pitras and that by brahmacharya (studenthood), by performing yajnas and by
procreating sons he freed himself from those three debts respectively. Vide. VI Tai. S., 3 10.5; Sat. Br.,
1.7.2.11; Att. Br., 33.1. The last very succinctly states the purposes served by a son, viz., payment of the debt
to ancestors, the securing of immortality and heaven, Rigveda, 4, 10 (Prajabhiragne amrtatvam-asyam) prays
(„may I obtain immortality through progeny‟, Vas. Dh. S., 17, 1, 4 quotes these passages of the Tai. S.; Ait.
Br.; and Rg. The X Rg. 85, 45, invokes the blessing of ten sons on the newly married bride and the Rg. is full
of the yearning for a son at every step, vide Rigveda, 1, 91, 20, 1, 92, 13. III. 1, 23 and C. Jaimini (VI.2.31)
discusses the passage of Tai, and arrives at the conclusion that the duties laid down in it are obligatory and not
left to choice and Sabara adds another explanation that these duties are obligatory on all dvijatis and the word
„brahmana‟ is used in Tai. S., as illustrative only. Vide P.V. Kane, HISTORY OF DHARMASASTRA, vol.
III, 2nd ed. 1972, pp. 560-561.
4 Manu, VI, SBE, vol. 25, p. 35.
5 Ibid, p. 36.
6 Id., p. 37.
7 Manu, IX, SBE, vol. 25, p. 138.
8 Ibid, p. 139.
2
of “recovery of a debt”. The father being dead, it is incumbent on the sons to pay his debt, each
according to his share (of the inheritance), in case they are divided in interest. Or, if they are
not divided in interests, the debt must be discharged by that son who becomes manager of the
family estate. If a debt has been legitimately inherited by the sons, and left unpaid by them,
such debt of the grandfather must be discharged by his grandsons. The liability for it does not
include the fourth in descent. Father‟s wish to have sons on their own account, thinking in their
minds, that “he will release me from all obligations towards superior and inferior beings”.1
As regards the liability of the ancestors Narada states :
Three deceased (ancestors) must be worshipped; three must be reverenced before
the rest. These three ancestors of a man may claim the discharge of their twofold
debt from the fourth in descent.2
On this text Jolly refers to litigation from Ashaya‟s commentary on the Naradasmriti
which throws light on the nature of the liability of the son, grandson, and great-grandson to pay
the debt of their ancestors. He observes:
Three deceased ancestors, i.e., the father, grand-father, and the great-grandfather,
may claim the discharge of their terrestrial and celestial liabilities from the fourth
in descent. This rule is illustrated by the history of an action which was brought
before a court in Patna. A merchant of the Brahman caste, by the name of
Sridhara, had lent the whole of his wealth, consisting of 10,000 drammas
(drachmas), which he had gained through great labour, to a trader, by the name of
Devadhara, on condition that interest amounting to two per cent, per mensem of
the principal stock should be paid to him. The interest was duly paid to Sridhara at
the end of the first month. In the second month, however, Devadhara met his
death through an accident. His son died of an attack of choleral. Devadhara‟s
great-grandson alone was left. His name was Mahidhara. As he was addicted to
licentious courses, the management of the estate was undertaken by his sons, and
maternal uncles. They got into the hands of a cunning Brahman called
Smartadurdhara, who advised them not to pay a single rupee to Sridhara, as he
was able to prove from the law-books that he had no claim to the money. The
uncles of Mahidhara, much pleased with this piece of advice, promised to give
1,000 drammas to the Brahman if they need not pay the money to Sridhara. Thus,
when at the close of the second month, the uncles and guardians of Devadhara‟s
great-grandson, Mahidhara were asked by Sridhara to pay 200 drammas, being the
amount of interest due on the sum lent to Devadhara, they refused payment. They
said : „we do not owe you the principal, much less any amount of interest. The
Brahman Smartadurdhara has pointed out to us that the obligation to pay stops
with the fourth in descent‟. Sridhara was struck dumb with grief and terror on
hearing this announcement made to him. When he had regained his senses, he
repaired to the court of justice, attended by his family, friends, and servants, and
impeached Mahidhara, together with his uncles, for their dishonesty. Both parties
took sureties. The uncles of Mahidhara engaged Smartadurdhara to plead for
them. After pretending his clients to be connected with his family by a friendship
of long standing, he went on to refer to a text of Narada as proving that the
obligation to pay the debts of ancestors stops with the fourth in descent. All his
1 Narada, 1, 2, 4, 5, SBE, vol. 33, pp. 41-42

2 Ibid, pp. 43-44.
3
arguments, however, were refuted, and held out to derision by a learned Brahman,
by the name of Smartasekhara, who, at the end of his address, charged him openly
with having taken a bribe from his clients. The consequence was that Mahidhara
and his uncles lost their cause.1
This case is quoted in full, because it presents a vivid picture of the way in which actual
judicial proceedings used to be transacted in ancient India before the advent of the Muslim and
the British influence. The case of Sridhar v. Mahidhar2 illustrates that the obligation of the son
was an independent obligation based on religious texts. It was actually acted upon irrespective
of the fact whether the son acquired the property of the father or not. The obligation was
independent of receipt of property.
Narada states the consequences for non-payment of debt. The liability does not die with
the death of the debtor; therefore, the son has to pay the debt. If a man fails to pay on demand
what had been borrowed or promised by him, that sum (together with the interest) goes on
growing till it amounts to a hundred crores (one milliard).3 A hundred crores having been
completed, he is born again, in every successive existence, in his (creditor‟s) house as his
slave, in order to repay the debt (by his labour).4
Brihaspati says that the father‟s debt must be paid first of all, and after that, a man‟s own
debt; but a debt contracted by the paternal grandfather must always be paid before these two
even.5 The father‟s debt, on being proved, must be paid (by his son‟s sons) without interest; but
the son of a grandson need not pay it at all.6
We find that Brihaspati has made a distinction in the liabilities of son, and grandson, and
has absolved the great grandson from the liability to pay the debt of his great grandfather. The
views of Brihaspati are not in conformity with the texts of Narada and Manu, who are of the
opinion that debts of three ancestors are to be paid, three ancestors are to be worshiped and the
consequential liabilities of the three ancestors must be discharged. It is the considered opinion
of the ancient Indian jurists that the liability of son arises from religious injunctions, the non-
fulfillment of which is also a sin. From this theory it follows that the son is not liable to pay off
the debt of his father if the nature of debt is irreligious.
According to Katyayana a debt contracted by the grandfather which is known to the
father and is not paid by him the grandson‟s liability is to the extent of paying the principal
only without interest.7 He further says that a debt incurred by the father should be cleared at the
time of partition and Narada says that the son should try his best to absolve his father from
debt.8 Brihaspati says that a loan shall be restored on demand, if no time has been fixed (for its
restoration); or on the expiration of the time (if a definite period has been fixed); or when
1 Narada, 1, 2, 4, 5, SBE vol. 33, pp. 43-44.

2 Ibid.
3 Narada, 7, p. 44.
4 Narada, 8, p. 44.
5 Brihaspati, XI, 48, SBE, vol. 33.
6 Brihaspati, XI, 49, SBE, vol. 33, pp. 328-329.
7 If a debt that had been contracted by the grandfather and was known to the father as valid and as not
discharged by the sons of the original debtor, it should be paid without interest by the grandsons-(Katyayana in
Smrtichandrika, 397), and Apararka. 651. Vide G.N. Jha, HINDU LAW IN ITS SOURCES, vol. I, 1930, p.
208.
8 Narada quoted in Vivadaratnakara, p. 54. Vide G.N. Jha, HINDU LAW IN ITS SOURCES, vol. I, 1930, p.
203.
4
interest ceases (on becoming equal to the principal). If the father is no longer alive, the debt
must be paid by his sons.1
Yajnavalkya says that if the father is dead or gone abroad or smitten with trouble, his
debt should be paid by his sons and grandsons; if on denial, it is proved by witnesses.2
Commenting on this text Mitakshara says that the sons and grandsons have to pay even
though they may not have inherited any property from the father. The order of the liability is
that in the absence of the father, the son has to pay, and in the absence of the son, the grandson
has to pay.3 So far the liability of the sons to pay the debt of his father during the lifetime of the
the father is concerned the Hindu jurists have imposed a duty on the son to pay the debt of the
father even during his lifetime if the father has become unable to pay the debt because of his
old age and disease.4
There are texts which make the son and the grandson liable to pay the debt of their father
and grandfather irrespective of the fact whether they have acquired the property from them or
not; their duty is of religious nature. The duty to pay the debt was independent of receipt of any
property, grandson‟s liability according to some writers is only to pay the principal amount on
their attaining the majority.5
The original texts contained in the legal literature right from the time of Rigveda down to
the Dharmasastra period in unequivocal terms declare the liability of the son to pay the debt of
his father. This liability extends to the grandson and is not dependent on the fact whether the
father or the grandfather has left property or not. The consequences for non-payment of debt
are not only temporal but the indebtedness of a debtor follows him in the next life according to
the Hindu jurists. There are innumerable texts to this effect. Brihaspati says that “he who,
having received a sum lent or the like, does not repay it to the owner, will be born hereafter in
his creditor‟s house, a slave, a servant, a woman, or a quadruped”.6 And Narada says that
“when a devotee, or a man who maintained a sacrificial fire, dies without having discharged his
debt, the whole merit of his devotions, or of his perpetual fire belongs to his creditors”. The
duty of relieving the debtor from these evil consequences falls on his male descendants, to the
second generation, and was originally quite independent of the receipt of assets.7
According to Indian legal literature the son is desired because of the reasons that he
would pay the debts spiritual and worldly of his father. Because of the reasons that the pious
1 Brihaspati, XI, 47, SBE, vol. 33, p. 328.

2 Yajnavalkaya, 2, 50. Vide G.N. Jha, HINDU LAW IN ITS SOURCES, vol. I, 1930, p. 209.
3 G.N. Jha, HINDU LAW IN ITS SOURCES, vol. I, 1930, p. 204.
4 Even when the father is alive if he is stricken by disease, or has gone away from the country, his sons shall pay
his debt after twenty years. (Katyayana in Smrtichandra, 394).
5 If, on repudiation, it has been proved by witnesses and other proofs, the debt shall be paid by the sons and
grandsons (Yajna 2.50).
The grandsons shall pay the grandfather‟s debts only after attaining their majority, (Smrtichandrika, 398). If he
who contracted the debt should die or become a renunciate, or remain abroad for twenty years, that debt shall
be discharged by his sons and grandsons; but not by remoter descendants; against their will, (Visnu 6.27-28)
(quoted in Smrtichandrika, 398); G.N. Jha, HINDU LAW IN ITS SOURCES, vol. I, 1930, p. 209.
6 S. Srinivasa Iyengar (rev.), John. D. Mayne, TREATISE ON HINDU LAW AND USAGE, 10 th ed. 1938, p.
395; dig. I. 228. The text is not found in Brihaspati, SBE, vol. 33. Nilakantha attributes the text to Katyayana
in Vyav. Mayakha, V, IV, II Narada, SBE, vol. 33, 1.7.8 p. 44 says. If a man fails to pay on demand what had
been borrowed or promised by him, that sum (together with the interest) goes on growing till it amounts to a
hundred krores (one milliard). A hundred krores having been completed, he is born again, in every successive
existence, in his (creditor‟s) house as his slave, in order to repay the debt (by his labour).
7 S. Srinivasa Iyengar (rev.), John. D. Mayne, TREATISE ON HINDU LAW AND USAGE, 10 th ed. 1938, pp.
395-396.
5
obligation of the son is based on the authority of the religion, therefore, as a logical corollary it
follows that the son is not to pay the debt of his father which are irreligious in character, the
reasons for this are: First, there are religious authorities absolving the son from the liability to
pay debts of the father which are irreligious in nature in the same way as there are religious
authorities which impose liability on sons to pay off the debt of their fathers. Second, to make
the son liable to pay irreligious debt would amount to the contribution and augmentation of
irreligious acts of the father.
Debts Son not Liable to Pay
Manu enumerates certain types of the debts which a son is not liable to pay. They are :
The man who becomes a surety in this (world) for the appearance of a (debtor)
and produces him not, shall pay the debt out of his own property. 1 But money due
by a surety, or idly promised, or lost at play, or due for spirituous liquor, or what
remains unpaid of a fine and a tax or duty, the son (of the part owing it) shall not
be obliged to pay.2 The just mentioned rule shall apply to the case of a surety for
appearance (only); if a surety for payment should die the (judge) may compel
even his heirs to discharge the debt.3 On what account then is it that after the death
death of a surety other than for payment, whose affairs are fully known, the
creditor may (in some cases) afterwards demand the debt (of the heirs). 4 (If the
surety had received money (from him for whom he stood bail) and had money
enough (to pay), then (the heir of him) who received it; shall pay (the debt) out of
his property; that is the settled rule.5 A contract made by a person intoxicated, or
insane, or grievously disordered (by disease and so forth), or wholly dependent,
by an infant or very aged man, or by an unauthorised (party) is invalid. 6 That
agreement which has been made contrary to the law or to the settled usage (of the
virtuous) can have no legal force, though it be established (by proofs).7 There are
texts of Gautama who also absolves the sons to pay certain debts contracted by the
father. The sons shall not be made to pay surety money, trade duties, debts due to
gambling or drinking or fines.8 Brihaspati says, debts due to liquor, gambling,
futile gifts, gifts promised in love or anger, surety, money balance of fines and
taxes, these debts of the father the son shall not be made to pay.9
“Gifts promised in love” and “taxes” have been commented differently by Apararka,
Haradatta and Balambhatti.10 There are certain types of gifts which a son is not liable to pay.
1 Manu, VIII, 158, SBE, vol. 25, p. 282.

8 Gautama, 12, 41, quoted in Vivadartnakara, 58.
9 Brihaspati, XI, 51; also Yajna 2, 47, where however “anger” has been omitted.
10 Gifts promised in love, i.e., in adulterous love-making, „gifts promised in anger‟ in a fit of anger a man
damages the property of another person, and then in order to placate him, promises a present, this is what is
meant-(Apararka, 649). „Shukla’ has been explained by Haradatta on Gautama as „bride-price‟, Balambhatti
explains it as „taxes‟; vide G.N. Jha, HINDU LAW IN ITS SOURCES, vol. I, 1930.
6
Fine or balance of fine, tax or balance of tax, or what is not proper, such debts of the father, the
son shall not pay.1
John D. Mayne has enumerated from these taxes certain categories of debts which a son
is not required to pay.2 Debts which are not to be paid by sons and grandsons according to
Dharmasastra are termed avyavaharika debt. Vyas and Usanas have used the term
avyavaharika. The term avyavaharika has been used to devote the debts similar in nature to
debts which a son is expressly absolved from paying. Various scholars have understood the
term avyavaharika differently. According to Colebrooke the term means “any debt for a cause
repugnant to good morals”.3 Jagannatha understands it in the sense of unlawful, unusual and
not customary, since the word vyavaharika means „lawful, usual or customary‟.4
The expression in the text of Vyasa (na vyavaharikam) is explained by Misra, as
“excluded from usual causes”. Consequently the debt which is contracted for some civil
purpose consistent with the prescriptive usage of good men must be paid by sons and the rest;
but if it be the reverse, it need not be discharged.5 The interpretation of the term vyavaharika
by V.N. Mandlik and Jogendranath Bhattacharya as „proper‟ is in accordance with the opinion
of Apararka and there is no material difference between the three renderings. The last category
of avyavaharika debts is not an independent category but only a residuary one comprising
debts which are ejusdem generis with those that have been enumerated.6
John D. Mayne says :
The term commonly used in decisions and text books to describe those debts of
the father for which the son is not liable is “illegal or immoral”. The expression
was doubtless originally meant to render „avyavaharika’ but it has come to be
used as a compendious term to cover all the cases enumerated in the Smrities.7
1 Vyasa in Vivadaratnakara, 58, but Ushanas in Apararka, 648 and in Mitakshara, 47. That is not proper. This is
the meaning of „na viyavaharikam‟, as explained by, Apararka: Smrtichandraka and Viramitrodaya explain it
as „due to wine‟: Balambhatti as „what was not used for the family; Vivadachinitamani as „what is not
admissible under normal conditions, or „what is not admissible in law‟. P. V. Kane remarks that the Bombay
High Court (ILR 32 Bom 348) has accepted the meaning to be a debt which no decent or responsible man
would incur‟: Allahabad (33 All 472). Madras (37 Mad 48) and Calcutta High Courts (39 Cal 862) have
dissented from the above: Calcutta High Court explaining it as „what is not lawful, usual or customary or
which is for a cause repugnant to good morals‟: vide G.N. Jha, HINDU LAW IN ITS SOURCES, vol. I,1930.
2 (i) debts due for spirituous liquor;
(ii) debts due for lust;
(iii) debts due for gambling;
(iv) unpaid fines;
(v) unpaid tolls;
(vi) debts due for anything idly promised or promises without consideration or anything promised under the
influence or wrath;
(vii) suretyship debts due as surety for appearance, or for confidence or honesty of another: (viii) commercial
debts; and
(ix) debts that are not “vyavaharika”; vide S. Srinivasa Iyengar (rev.), John. D. Mayne, TREATISE ON
HINDU LAW AND USAGE, 10th ed. 1938.
3 Dig., I, 211; vide S. Srinivasa Iyengar (rev.), John. D. Mayne, TREATISE ON HINDU LAW AND USAGE,
10th ed. 1938, p. 398.
4 S. Srinivasa Iyengar (rev.), John. D. Mayne, TREATISE ON HINDU LAW AND USAGE, 10th ed. 1938, p.
398.
5 Supra n. 3, pp. 398-399.
6 Supra n. 4, p. 399.
7 Supra n. 4, p. 399.
7
When Gautama says :
Pratibhavyavaniksulkamadyadyutadanda na putranadhyabhaveuh.1
He does not refer to debts which are incurred in due course of business. He refers to such
debts. (i) which are speculative and hazardous ventures; and (ii) the son is not liable to pay
because he recognises trading as an occupation of Vaisya community.2 Such debts incurred for
ordinary trade activities cannot be placed in the category of debts which a son will not be liable
to pay.
Son’s Liability : Judicial Approach
Immoral, illegal and avyavaharika debts fall in the category of debts which are not
payable by the son under the pious obligations doctrine. Avyavaharika debts do not form a
separate category of debts from those known as immoral or illegal debts, they comprise only
residuary ones which are ejusdem generis with illegal and immoral debts. Mahabir Prasad v.
Basdeo Singh,3 is a case in which the question of avyavaharika debt arose before the court. The
The facts of the case were that a decree was made against a Hindu, governed by Mitakshara,
for money which he had criminally misappropriated. The transferee by sale of the decree
brought to sale in execution thereof the judgment debtor‟s right of occupancy in certain land as
a tenant at fixed rates. The judgment debtor‟s two sons brought a suit against the purchaser to
recover two third of the holdings.
It was held that the right of occupancy at fixed rates in such land was ancestral property,
that is, property in which under Hindu law the sons took vested interest by birth. There was no
doubt that the debt for which the decree was obtained was one not binding on the sons, the
decree being obtained for money which Laljit had embezzled. The respondent was not entitled
to be protected as a purchaser at an execution-sale without notice, on the principle laid down
by the Privy Council in Girdharee Lall v. Kantoo Lal,4 and Suraj Bunsi Koer v. Sheo Prasad
Singh.5 The decree was a mere money-decree against the father of the plaintiffs personally, and
and the family property was not liable to be taken in execution of the decree, and the
respondent was to satisfy himself on these points by examining the decree. This point was
elaborated in Suraj Bunsi Koer’s case.6
The other important case is Durbar v. Khachar,7 in which the plaintiff obtained a decree
against the defendant‟s father for damage to the plaintiff‟s property caused by a dam erected by
the latter which obstructed the passage of water thereto. On the latter‟s death the decree was
sought to be enforced against his son with respect to the ancestral estate in the hands of the son.
The court referred to the text of Usanas which reads :
A fine, or the balance of a fine, likewise a bribe or a toll or the balance of it, are
not to be paid by the son, neither shall he discharge improper debts.8
The court observed that applying these maxims to the case before us, we must conclude
that the son is not liable under the decree. His father‟s act in obstructing the passage of water to
the decree holder‟s lands may not have been illegal in the usual sense of the term that is to say,
1 Gautama, 12, 41; G.N. Jha, HINDU LAW IN ITS SOURCES, Vol. I, 1930, p. 207.
2 Gautama, 10, 49; G.N. Jha, HINDU LAW IN ITS SOURCES, Vol. I, 1930, p. 207.
3 (1884) ILR 6 All 234
4 (1874) 1 IA 321.
5 (1879) 6 IA 88.
6 Ibid.
7 (1908) 32 Bom 348.
8 Mitakshara, II, 48. Vide Bhattacharya, HINDU LAW, 2 nd ed., p. 247.
8
it may not have been committed in contravention of any express provision of the law; but the
result of the suit shows that it was wrongful, and for a liability so incurred the son cannot be
held answerable when the estate that has come to his hands has derived no benefit from the
act.1
In Chhakauri Mahton v. Ganga Prasad,2 the Calcutta High Court examined the question
of the son‟s pious liability in case of avyavaharika debt, and observed that there has been a
well marked divergence of judicial opinion upon the question, how far a Hindu son is under a
pious obligation to discharge a debt of his father when such debt consists of money
misappropriated by the latter. Mahabir Prasad v. Basdeo Singh,3 Pareman Dass v. Bhattu
Mohton,4 and McDowell v. Ragava Chetty5 seem to negative the liability of the son under such
such circumstances, while Natasayyan v. Ponnusami,6 Kanemar v. Krishna,7 and Erasala
Chetty v. Addepally Chetty,8 apparently support his liability for such debts. These cases,
however, may possibly be reconciled if we recognise the distinction between a criminal
offence and a breach of civil duty. In the first three cases, the father was guilty of criminal
misappropriation as regards sums of money for which he was accountable; while in the second
set of three cases, the father merely failed to account for the money received by him, and his
failure to do so constituted nothing more than a breach of civil duty. The distinction is real
though refined, and was recognised in Medai Tirumalayappa Mudaliar v. Veerabadra.9
In this case it was ruled that if a debt was incurred by a person as an agent, his son was
liable to pay the debt and the liability of the son was not affected by the circumstance that the
father subsequently misappropriated the sum or made himself criminally liable. Consequently,
the proper position is that, where the taking of the money itself is not a criminal offence a
subsequent misappropriation by the father cannot absolve the son from his liability to satisfy
the debt; but the position is different if the money has been taken by the father and
misappropriated under circumstances which render the taking itself a criminal offence.10
The other important case is Toshanpal Singh v. District Judge of Agra,11 where the father
was a secretary of a school committee. He was in charge of a fund deposited with a bank. He
was authorised to draw upon it only for specific purpose connected with the school. After his
death the committee sued his sons to recover from them out of property left to them by their
father, or out of the property of their joint Hindu family, an alleged deficiency in the fund. The
deficiency amounted to Rs. 42,993/- and according to the father‟s own admission Rs. 30,016/-,
of it was due to drawings by him for purposes other than those authorised. Hence, the court
held that the drawings in question were criminal breaches of trust within Section 405 of the
Indian Penal Code 1860 and that under Hindu law the sons to that extent were not liable.
A perusal of the ancient texts which exempt the son to pay certain type of debts and the
decisions thereon indicate that the judiciary has gradually developed the law with great
1 Mitakshara, II, 48. Vide Bhattacharya, HINDU LAW, 2 nd ed., pp. 348, 351-352.
2 (1912) ILR 39 Cal 802.
3 (1884) ILR 6 All 234.
4 (1897) ILR 24 Cal 672.
5 (1903) ILR 27 Mad 71.
6 (1893) ILR 16 Mad 99.
7 (1908) ILR 31 Mad 161.
8 (1908) ILR 31 Mad 472.
9 (1909) 19 Mad LT 759.
10 Ibid, pp. 871-872.
11 (1934) ILR 56 All 548.
9
caution. While toll taxes and sulka are mentioned among the categories of the taxes which a
son is not liable to pay, the judiciary had always been aware of the taxes which in the modern
time are considered necessary and legal, the arrears of which a son is liable to pay. The
interpretation of the text containing the term avyavaharika has been made by the Supreme
Court in S.M. Jakati v. S.M. Borkar,1 in the modern context. This term has been translated as
being that which is not (i) lawful just; or (ii) what is not admissible under the law; or (iii)
normal conditions.2 Colebrooke translated it as “a debt for a cause repugnant to good morals”.
There is another track of decisions wherein it has been translated as meaning “a debt which is
not supported as valid by legal arguments.”
In Pannalal v. Mt. Naraini,3 the Supreme Court observed that there is no discrepancy of
judicial opinion as to the pious duty of Hindu sons, and approved the dictum of Suleman A.C.J.
in Bankeylal v. Durga Prasad.4 In Toshanpal Singh v. District Judge of Agra5 it was held that
Hindu law texts based the liability of the son on the pious obligation principle itself and not on
the father‟s power to sell the son‟s share.6
The Supreme Court attached great importance to the payment of debts which is regarded
by Dharmasastra as a very heinous sin if remained unpaid.7 The pious obligation theory
received the approval of the Supreme Court in Sidheshwar Mukherjee v. Bhubneshwar Prasad
Narain Singh.8 There are quite a good number of judicial dicta regarding exemption from
payment of immoral or illegal and avyavaharika debts. A son is not liable to pay such debts
because the transactions have been of an irreligious nature.
Antecedent Debt and Liability of Son’s Estate
The son‟s liability to pay the antecedent debt of his father has been discussed by the
Privy Council in Brij Narain v. Mangal Prasad9 in which the facts were that on the 4th of
March 1908, Sita Ram granted a mortgage for Rs. 11,000 in favour of Raja Narain Brij Rai and
Jagdish Narain Rai. The mortgage was secured on ancestral and joint property of which Sita
Ram was at that time manager, the other members of the joint family being his two sons,
minors. In 1912 the mortgagees brought a suit on the mortgage and obtained a decree ex parte.
In 1913 the present suit was raised by the mother on behalf of her two minor sons (the elder
has since become major) to have it declared that the mortgage was not binding on them and
that the decree granted was, so far as they were concerned, null and void.
The mortgage in suit bears to have been executed in order to pay off two prior mortgages
on the same property of date 12 December 1905, and 19 June 1907, respectively.10
The Privy Council examined the long line of cases and laid down the following
propositions of law on the basis of the existing authorities :
(i) The managing coparcener of a joint undivided estate cannot alienate or burden the
estate qua manager except for purposes of necessity.
1 AIR 1959 SC 282 : (1959) SCR 1384.

2 Ibid, p. 286.
3 1952 SCR 544 : AIR 1952 SC 170, 174-176.
4 AIR 1931 All 512 (FB).
5 61 IA 350.
6 Ibid, p. 519.
7 Id. p. 527.
8 1954 SCR 177, 183-184; AIR 1952 SC 487, 90.
9 (1923) ILR 46 All 95.
10 (1923) ILR 46 All 95, 98.
10
(ii) If he is the father and the reversionaries are the sons he may, be incurring debt, so long
as it is not for an immoral purpose, lay the estate open to be taken in execution
proceeding upon a decree for payment of that debt.
(iii) If he purports to burden the estate by mortgage, then unless that mortgage is to
discharge and antecedent debt, it would not bind the estate.
(iv) Antecedent debt means antecedent in fact as well as in time, that is to say, the debt must
be truly independent and not part of the transaction impeached.
(v) There is no rule that this result is affected by the question whether the father, who
contracted the debt or burdens the estate, is alive or dead.1
Pious Obligation Doctrine and the Hindu Succession Act 1956
The passing of the Hindu Succession Act 1956 has very far reaching impact on the nature
and constitution of the joint Hindu family. Though the Act does not propose to make changes
in the joint family, its provisions have introduced radical changes in the nature of the Hindu
joint family governed by the Mitakshara law. Muttayan Chetti and Nanomi Babuasin have
limited the liability of the son to the extent of joint estate of the father and the son. It is the
property in which the son acquires right of ownership by birth. In Nanomi Babuasin the
Judicial Committee said that the pious obligation is destructive of birthright of the son in
ancestral property. The liability to pay the debt is not destructive of the right of ownership, if it
would have been destructive the liability would have existed even in the event of the debt
being tainted with immorality or illegality. It is based also on the equitable principle that if one
takes benefit under a rule the burden has also to be accepted under the rule. There is little or no
difference between the piousness of the doctrine and its equitable aspect.
The Act has an impact on the joint family property which has very far reaching
implications. The rule of survivorship and doctrine of ownership by birth have been affected by
provisions of the Act mainly by Sections 6, 8 and 30 which have made serious inroads in the
two doctrines. These two doctrines are the basis of the doctrine of pious obligation. As
observed by the Judicial Committee :
Destructive as it may be of the principle of independent coparcenary rights in the
sons, the decisions have, for some time, established the principle that the sons
cannot set up their rights against their father‟s alienation for an antecedent debt, or
against his creditor‟s remedies for their debts, if not tainted with immorality. On
this important question of the liability of the joint estate, their Lordships think that
there is now no conflict of authority.2
The birthright of the son in ancestral property which developed absolutely and
uninterruptedly on the son by survivorship is curtailed, rather drastically curtailed, by virtue of
the provisions of Section 6 of the Hindu Succession Act 1956.3
Hindu Succession Act abolishes Avyavaharika Debt Concept
What is important in the light of the impact of Section 6 of the Hindu Succession Act
1956 is that the interest of the coparcener dying intestate shall devolve not by survivorship but
under the provisions of the Act. The joint family stands partitioned immediately before the
death of the coparcener. Now in the case of a father who dies intestate and indebted his interest
which shall devolve by succession on the heirs enumerated in Class-I of the Schedule shall be
1 (1923) ILR 46 All 95, 104.

2 Manomi Babuasin v. Modun Mohun (1885) 13 IA 1, 17-18.
3 Section 6, the Hindu Succession Act 1956 deals with devolution of interest in coparcenary property.
11
liable for the payment of the debt of the deceased and the liability of the heirs will be absolute
including that of the son with respect of the share which he gets as an heir of Class-I of the
Schedule. Neither the son nor any other heir can claim exemption from the liability to pay the
debt of the deceased on the ground that the debt was immoral, illegal, or avyavaharika. Thus
the pious obligation being based on religious sanction has become converted into legal
obligation. The nature of the joint estate stands destroyed.
The approach of judiciary in interpreting the nature of property inherited under the
scheme of Section 8 of the Hindu Succession Act 1956 has been destructive of pious obligation
doctrine. However, the construction of the principles underlying the scheme is both logical and
rational. The Madras High Court decision delivered by its full bench is perfectly in line with
the Dayabhaga doctrine where it was held that property inherited by son from his divided
father even assuming that it was ancestral property in the hands of the father would be his
separate and individual property and not of the joint family consisting of his wife, sons and
daughters.1
This decision of the Madras High Court has a far reaching consequence; it obliterates the
very concept of ancestral property in the Mitakshara school of Hindu law which is the
foundation of judicially modified doctrine of pious obligation of the son to pay his father‟s
debt.
Again in Shrivallabi v. Modani,2 the Madhya Pradesh High Court while interpreting the
principles underlying Section 8 of the Hindu Succession Act 1956 observed, “it would be taken
as a self-contained provision laying down the scheme of devolution of the property of a Hindu”
and pointed out that in constructing the section the law in force earlier should be ignored and
the court should confine itself to the language used in the new codifying Act.3 This approach of
the Madhya Pradesh High Court cannot be supportive of pious obligation doctrine since it has
the effect of converting the ancestral property into self-acquired property.
This has been the consistent trend in other High Courts also. In Commissioner of Income
-Tax v. Mukund Girji,4 the Andhra Pradesh High Court held that the properties which devolved
upon a son in 1958, by inheritance, after the Act came into force, were properties of the son in
his individual capacity and not of the joint family of the son. His sons have no right by birth in
such properties and cannot therefore, claim any share or sue for partition of such properties.5
On perusal of the provisions of the Hindu Succession Act 1956, the High Court observed :
A perusal of the Hindu Succession Act 1956 would reveal that Parliament wanted
to make a clean break from the old Hindu law in certain respects consistent with
modern and egalitarian concepts. For the sake of removal of any doubts, therefore,
Section 4 (1) (a) declared that, in so far as a matter is provided for by the Act, one
should look only to the Act and not to the pre-existing Hindu law. It would,
therefore, not be consistent with the spirit and object of the enactment to strain the
provisions of the Act to accord with the prior notions and concepts of Hindu law.
That such a course is not possible is made clear by the inclusion of females in
class I of the Schedule. To hold today that the property which devolves upon a
Hindu under Section 8 of the Act would be Hindu Undivided Family property in
1 Additional Commissioner of Income-Tax v. P.L.Karuppan Chettiar AIR 1979 Mad 1; vide Sunderlal T. Desai
(rev.), D. F. Mulla, HINDU LAW, 16th ed. 1990, p. 784.
2 (1983) 138 ITR 637 (MP).
3 Sunderlal T. Desai (rev.), D. F. Mulla, HINDU LAW, 16th ed. 1990, p.76.
4 (1983) 144 ITR 18 (AP).
5 Ibid, pp. 784-785.
12
his hands vis-à-vis his own sons would amount to creating two classes among the
heirs mentioned in Class-I, viz., the male heirs in whose hands it would be joint
family property vis-à-vis their sons; and female heirs with respect to whom no
such concept can be applied or contemplated. The intention to depart from the
pre-existing Hindu law is again made clear by Section 19 which states that two or
more heirs succeeding together to the property of an intestate shall take the
property as tenants-in-common and not as joint tenants. According to Hindu law,
as it obtained prior to the Hindu Succession Act 1956 two or more sons
succeeding to their father‟s property took it as joint tenants-in-common. The Act
has, however, chosen to provide expressly that they shall take as tenants-in-
common. Accordingly, properties which devolve upon an heir mentioned in
Class-I of the Schedule under Section 8 constitute his absolute properties, and his
sons have no right by birth in such properties and cannot, therefore, claim any
share or sue for partition of such properties.1
This decision of the Andhra Pradesh High Court like the decisions of the Madras High
Court2 and Madhya Pradesh High Court3 has a destructive impact on ancestral property and
makes the situation much more like the proprietary jurisprudence under the Dayabhaga school.
The seal of finality has been placed on this approach by the Supreme Court in
Commissioner of Wealth-Tax, Kanpur v. Chandersen.4
Now, the share which a son obtains in the capacity as an heir of Class-I of the Schedule
will become his separate property in which the son‟s son will not take an interest by birth.5
Thus, the basis of the liability of the son by virtue of the right of ownership by birth in
ancestral property has been eroded; consequently the very basis of the pious obligation to pay
the father‟s debt has become anfractuous. Naturally, the very basis of the pious obligation has
been destroyed.
The question as to the nature of the property in the hands of the son has been finally
decided by the apex court in Chandersen.6 In this case the Supreme Court has very elaborately
discussed and examined the views of the Allahabad High Court,7 Madras High Court,8 Madhya
Madhya Pradesh High Court9 and Andhra Pradesh High Court10 on the one hand and that of the
the Gujarat High Court11 on the other hand.
In this case the important question involved was whether a son as heir of Class-I of the
Schedule inherits the property of his father who dies intestate in his individual capacity or as
Karta of his own undivided family in which his son shall take interest by birth.
In Chandersen, the view of the Gujarat High Court was overruled and the views of the
Allahabad High Court, the Madras High Court, the Madhya Pradesh High Court and the
Andhra Pradesh High Court were approved. In brief the facts were: There was a partition of
1 (1983) 144 ITR 18 (AP).

2 Additional Commissioner of Income-Tax AIR 1979 Mad 1.
3 Commissioner of Income-Tax v. Mukundgirji (1983) 138 ITR 673 (MP).
4 AIR 1986 SC 1753 : (1986) 3 SCC 567.
5 (1983) 144 ITR 18 (AP).
6 AIR 1986 SC 1753: (1986) 3 SCC 567.
7 Commissioner of Income-Tax, U.P. v. Ram Rakshpal, Ashok Kumar (1968) 67 ITR 164(All).
8 Additional commissioner of Income-Tax AIR 1979 Mad 1.
9 Shavallabhdas Modani v. Commr. of Income-Tax MP (1982) 138 ITR 673.
10 Commr. of Income Tax (1983) 144 ITR 18 (AP).
11 Commr. of Income-Tax, Gujarat-I v. Babubhai Mansukhbhai (1977) 108 ITR 417 (Guj).
13
joint family business between the father and his only son. Thereafter, they continued the
business in the name of the partnership firm. The son formed a joint family with his own sons.
The father died and amount standing to the credit of the deceased father in the account of the
firm devolved on his son. The wealth tax authorities while assessing the wealth tax in respect
of the family of the son, i.e., the assessee, included the amount in computing wealth. Held, that
the son inherited the property as an individual and not as Karta of his own family. Hence, it
could not be included in computing the assessee‟s wealth.1 The Supreme Court observed :
In view of the Preamble to the Act, i.e., to modify where necessary and to codify
the law, in our opinion it is not possible when Schedule indicates heirs in Class-I
and only includes son and does not include son‟s son but does include son of a
predeceased son, to say that when son inherits the property in the situation
contemplated by Section 8 he takes it as Karta of his own undivided family. If the
Gujarat High Court‟s view noted above, if accepted, would mean that though the
son of a predeceased son and not the son of a son who is intended to be excluded
under Section 8 to inherit, the latter would by applying the old Hindu law get a
right by birth, in the said property contrary to the scheme outlined in Section 8.
Furthermore as noted by the Andhra Pradesh High Court the Act makes it clear by
Section 4 that one should look to the Act in case of doubt and not to the pre-
existing Hindu law. It would be difficult to hold today the property which
devolved on a Hindu under Section 8 of the Hindu Succession Act 1956 would be
HUF property in his hand vis-à-vis his own son, that would amount to creating
two classes among the heirs mentioned in Class-I, the male heirs in whose hands
it will be joint Hindu family property and vis-à-vis son and female heirs with
respect to whom no such concept could be applied or contemplated. It may be
mentioned that heirs in Class-I of Schedule under Section 8 of the Act included
widow, mother, daughter of predeceased son etc.2
This interpretation of the Supreme Court of the scheme of Sections 8 and 6 of the Act is
both logical with the philosophy of the Hindu Succession Act and also in conformity with the
social and legal demands of the society and law. Why a person should acquire property of
another person without being obliged to pay his debts and seek exemption on the ground of
such other person‟s borrowing for illegal and immoral ends. It is unsocial and illegal. Again,
why a creditor should lose his legal right to recover his debt merely because the debtor was
involved in illegal and immoral acts?
The approach of the Supreme Court is also in conformity with the doctrine of equality
enshrined in the Constitution. Since in the Dayabhaga school and in society in general no
debtor can escape the liability from paying off his debts on the ground that the debt was
incurred for illegal or immoral purposes, the Supreme Court decision is sound on social and
legal grounds. The son cannot use the defence of illegal and immoral debts of his father to
protect the property inherited under the Act.
Impact of Section 16 of the Hindu Marriage Act 1955 on Pious Obligation
The provision of Section 16 of the Hindu Marriage Act 1955 makes it a law which is not
based on logic but on social requirement. The illegitimacy of a child is a social stigma on the
child and on the society itself. The Hindu Marriage Act 1955 by this section has tried to wipe
out the stigma of illegitimacy on the child born of a void or voidable marriage. That is
1 AIR 1986 SC 1753 : (1986) 3 SCC 567.

2 (1986) 3 SCC 567 : AIR 1986 SC 1753, 1760.
14
undoubtedly a progressive step but at the same time the child is only partially given the status
of a legitimate child and if this legitimate child born of a void or voidable marriage happens to
be a son then he will not be liable to pay the debt of his father and his grandfather because he
does not acquire any right in the property of his father and his grandfather by birth as that of a
son born to a valid marriage of his parents. Therefore, the pious obligation in this case cannot
be enforced.
The changes mentioned above by the two Acts have affected the very basis of the pious
obligation doctrine. Therefore, now, there is nothing left in this doctrine and the old adherence
to this doctrine may be abandoned as sub-section (4) of Section 6 of the Hindu Succession
(Amendment) Act 2005 has abolished the doctrine of pious obligation finally.
Inequitability of Pious Obligation Doctrine
What is left of the pious obligation doctrine after the amendments in Hindu law is the
inequitability of the doctrine of pious obligation of the son to pay his father‟s debt, namely,
even now the father during his lifetime can alienate the joint family property of himself and of
his son for the payment of his personal debts incurred by him which were neither necessary nor
beneficial for the family. This is the residue, which is neither justifiable nor reasonable.
However, it is the logical and equitable consequence of the birthright of the son in the joint
estate.
Social-Legal Impact and Conclusions
As examined the socio-legal impact of the pious obligation doctrine is not consistent with
the modern jurisprudencial trends in the field of proprietary jurisprudence. The Hindu law as
stands amended by the various Acts1 favours the absolute right of ownership with regards to
Hindu females; it cannot stand to logic and reason that where the woman‟s limited estate has
been abolished the son‟s right in the joint family property should be allowed to be taken away
under the doctrine of pious obligation. What is important in this respect is to convert the pious
obligation doctrine into the absolute obligation and bring it in conformity with the Dayabhaga
school of Hindu law because that has already been the impact of Chandersen’s decision of the
Supreme Court.
----------------------
1 The Hindu Marriage Act 1955, the Hindu Succession Act 1956 (2005), the Hindu Minority and
Guardianship Act 1956 and the Hindu Adoptions and Maintenance Act 1956.
15
DOCTRINE OF RELATION BACK UNDER HINDU LAW :
A CASE LAW STUDY
Vijender Kumar
Introduction
There has been a fierce controversy pertaining to the principles governing adoption of a son
made by a Hindu widow to her deceased husband under the Sastric law. The controversy is equally
alive even after the emergence of the statutory law of adoption in 1956.1 The concept of sonship in
Hindu law cannot be properly understood without examining the most ancient written records
depicting the civilization and cultural history of India which can be traced from the time of Rigveda.
Vedic literature is the mirror of the Aryan culture in India. From the study of Aryan culture it becomes
amply clear that the doctrine of paternity was well known and understood by the Aryans during
Rigvedic times; the conspicuous absence of secondary sons fortifies this view further, and it explains
the absence of any term for artificial sons in Aryan languages.2 However, the idea of adoption appears
in the Sanskrit literature at a later date. But in Aryan culture evidence of recognition for secondary
sons is not available during the Vedic period.
Concept of Sonship in Rigveda
A study of the Rigveda reveals that in the pre-Rigvedic period there might have existed,
probably, a practice of owning sons of others but the Rigvedic seers clearly had the preference for an
Aurasa son. Rigvedic verses clearly contain this idea.
Parisdyam hyaranasya rekno nityasya rayah patayah syama na
seso agne anyajatamastyacetanasya ma patho vi dukush.
Nahi grabhayaranah susevoanyodaryo manasa mantava vadha
cidokh punaritsa etya ano vajyabhisaletu navyah.3
As the wealth (son) of another (who is unconnected) is to be avoided, so may we be masters
of wealth of our own (i.e. son of our body); O! Agni, the child of another cannot be one's offspring; it
may be so in the case of the fool; do not spoil our path. A stranger, born of another's loins, though
very pleasing, should not be taken, should not be even thought of in the mind (as one's son). Then he
goes back to the same house (from which he came); may a vigorous, victorious, newly born son
come to us.4
The Rigvedic seers did not approve of any other type of sons except the Aurasa son, but they
were aware of the practice of owning sons procreated by others which the Vedic seers denounced.
Commenting on the Rigvedic texts, Sen Gupta says : "At the same time this text of Rigveda discloses
an awareness of the existence of the practice of recognising at least one kind of secondary son, the
Kshetraja of later law, sons begotten on one's wife by somebody else, a practice which the Veda
strongly condemns as the "path of fools". It seems that the "path of fools" referred to here refers to
practices of other communities round about Aryan settlements among whom Levirate was a
recognised institution. The firmness of the repudiation of it may also indicate that this loose practice
The original research paper was published in Andhra University Law Journal, Vol. 4, 2001, pp. 73-103.
Professor of Law, Commonwealth Fellow and Head, Centre for Family Law, NALSAR University of Law,
Justice City, Shameerpet, R.R.Dist., Hyderabad - 500078.
1. The Hindu Adoptions and Maintenance Act 1956
2. N.C. Sen Gupta, THE EVOLUTION OF LAW, 3rd ed., p.56.
3. Rigveda, VII 4, 7-8.
4. P.V. Kane, HISTORY OF DHARMASASTRA, 2nd ed. Vol. III, pp. 656 - 657. Also see Vedic Index 1, 486,
487, Rigveda, VII, 3, 10; However, Vedic seers were aware of the practice of sons as Kanin, Putrikaputra,
Kshetrajna and Dattaka; See Rigveda VIII, 46, 21; Vedic Index II, 17; J.C. Ghose, THE PRINCIPLES OF
HINDU LAW, Vol. 1, p. 639.
1
may have been creeping into Vedic society to some extent so as to call for this vigorous
denunciation."5
The importance attached to Aurasa son and denouncement of the practice making other's son
ones own establishes beyond doubt that during the Rigvedic period Aryans did not recognise
secondary sons. It is at the later stage of the development of society that secondary sons were
recognised. The Vedic society, pure and simple, did not recognise secondary sons. In the Grihyasutras
there is no mention of rituals pertaining to raising son on other's wife.6 Manu also refers to the
absence of any ritual on Niyoga. "In the sacred texts which refer to marriage the appointment (of
widows) is nowhere mentioned, nor is the re-marriage of widows prescribed in the rules concerning
marriage."7
Aurasa Son under Hindu Law
Aurasa son in ancient Indian law and culture occupies a very high status. It was the Aurasa
son who was desired and through whom the Vedic seers and ancient Indian thinkers considered
themselves to be immortal. Hence, the Aurasa son was desired. It is from the Rigvedic8 period down
to this day that the prayer for Aurasa son is being made. The Sutrakaras and the Dharmasastrakaras
have defined the Aurasa son in an unambiguous way. Apastamba defines an Aurasa son as sons
begotten by a man who approaches in the proper season a woman of equal caste, who has not
belonged to another man, and who has been married legally, (sastravihita) have a right to (follow) the
occupations (of their castes) and to inherit the estate.9
Baudhayana like Apastamba defines the Aurasa son in the same way. He states that one must
know a son begotten by (the husband) himself on a wedded wife of equal caste (to be) a legitimate son
of the body (Aurasa). Now they quote also (the following verse); 'From the several limbs (of my
body) art thou produced, from my heart art thou born; thou art "self" called a son; mayest thou live a
hundred autumns.'10
Apastamba and Baudhayana both insist that the Aurasa son is only one who is born of a wife
of the same Varna. This view has not been followed by the later Dharmasutrakaras and the
Dharmasastrakaras. Vasishtha defines the Aurasa son who is assigned the first place among the
twelve kinds of sons, who is begotten by the husband himself on his lawfully wedded wife. Vasishtha
does not insist that the married wife should be of the same Varna as that of the husband.11 Vishnu
Dharmasutra defines the Aurasa son as the son of the body, viz, he who is begotten (by the husband)
himself on his own lawfully wedded wife.12 Unlike Baudhayana and Apastamba, Vishnu Dharmasutra
does not speak of the same Varna of the wife as that of the husband.
Manu defines an Aurasa son as one whom a man begets on his own wedded wife, let him
know to be a legitimate son of the body (Aurasa), the first in rank.13 Manu speaks only of the wedded
5. N.C. Sen Gupta, EVOLUTION OF ANCIENT INDIAN LAW, TLL 1950 (1953), p. 138 There was
emphasis on Aurasa son and the disapproval for Niyoga is indicated by the insistence on the need for
morality. Manu clearly says : many thousands of Brahmanas who were chaste from their youth, have gone
to heaven without continuing their race. A virtuous wife who after the death of her husband constantly
remains chaste, reaches heaven, though she have [sic]no son, just like those chaste men. Manu, V, 159 -160
SBE Vol. 25, pp. 196-197.
6. None of the Grihyasutras which are complete codes of domestic rituals of Vedic society, covering the life of
every man, from conception to cremation, has any ritual for making a secondary son. It is hardly conceivable
that an important social institution like son-making, if it existed, should not have had an appropriate ritual. In
the Grihyasutras in which rituals, connected with marriage and marital relations, as well as with the
conception birth and Samskaras of sons, apply only to the wedded wife and Aurasa son, there is no ritual
connected with the making of a son in any way but by begetting him on one's wife. Ibid, p. 139.
7. Manu, IX, 65 SBE Vol. 25. p. 339.
8. Rig., VII, 4, 7-8.
9. Savarnapurvasastraihitayam yathartw gachtah putrastesam karmablih sambandhah. Ap D. II, 6, 13, 1;
Apastamba, II, 6,13,1, Vol. 2, pp. 130-131. According to Shastric law conception as well as birth in lawful
wedlock was essential to constitute the son as an Aurasa son is in the real sense of the term. See Mit., on
Yajn., 1, 52; G.N. Jha, HINDU LAW IN ITS SOURCES, Vol. II, pp. 175-176.
10. Savarnayam sanskar yamupadetamaurasam putram vidyat, Baudhayana, II, 2,3,14, SBE Vol. 14, p. 226.
11. Vasishtha, XVII, 13 SBE Vol. 14, p. 85.
12. Vishnu, XV, 2, SBE Vol.7, p. 61.
13. Manu, IX, 166, SBE Vol. 25, p. 361.
2
wife and does not require that the wife should be of the same Varna. Kautilaya says that an Aurasa
son is one who has been procreated by a man himself on his wedded wife according to the rules of
Sastra.14 The Aurasa son is in fact a son born in a lawful wedlock. Gradually the Varna of the wife
became irrelevant, at least in the case of an Anuloma marriage.15
The definition of the Aurasa son was subjected to judicial scrutiny in Pedda Amani v.
Zemindar of Marungpuri.16 The Privy Council following the English law did not approve of the
Indian definition of Aurasa son. The council made modifications in this definition and held that
procreation after marriage was not distinctly necessary for legitimacy as a son even according to the
ancient texts, that to hold so would be an inconvenient doctrine and that the Hindu law is the same in
that respect as the English law. This decision of the Privy Council being the law of the land is based
on the English conception of legitimacy and on the Section 112 of the Indian Evidence Act 1872.17
This decision has been criticised and rightly so by Gooroodass Banergee in his Tagore Law
Lectures 1878 entitled the Hindu Law of Marriage and Stridhan. He says that the Hindu law of
legitimacy is even stricter than the English law. Manu defines the Aurasa son or son of the body, thus:
"Him whom a man has begotten on his own wedded wife, let him know to be the first in rank,
as the son of his body." (IX.166.). And to the same effect are the texts of Vasistha, Devala,
Baudhayana, Apastamba, and Yajnavalkya. According to the Hindu sages, therefore, in order to
constitute legitimacy, there must be not only birth but also procreation in lawful wedlock; and some of
the leading commentators, such as Kulluka, Vijnaneswar, and Nilkantha, confirm this view of their
texts. The Privy Council have however, taken a different view. Sir Barnes Peacock in delivering the
judgment of the Judicial Committee in the case of Pedda Amani v. Zemindar of Marungpuri,18
observed : "The point of illegitimacy being established by proof that the procreation was before
marriage, had never suggested itself to the learned Counsel for the Appellant at the time of the trial,
nor does it appear from the authorities cited to have been distinctly laid down that, according to Hindu
law, in order to render a child legitimate, the procreation as well as the birth must take place after
marriage. That would be a most inconvenient doctrine. If it is the law that law must be administered.
Their Lordships, however, do not think that it is the Hindu law. They are of opinion that the Hindu
law is the same in that respect as the English law." This decision, so long as the Privy Council do not
think it fit to re-consider the point, must be received as the law on the subject. But with every respect
that is due to the decision of the highest tribunal for India, I may be permitted to say that the doctrine
that procreation in lawful wedlock is necessary to constitute legitimacy, is not only supported by the
language of the texts cited above, but is also in accordance with the general spirit of the Hindu law, by
which the nuptial rites are primarily meant only for virgins; while the necessity of marrying girls
before puberty, reduces the practical inconvenience of the doctrine within the narrowest possible
limits.19
Various types of Sons : Under Old Hindu Law
The practice of secondary sons was well established during Dharmasutra period. It is
certainly after a pretty long course of evolution that different conceptions of sonship came into
existence. There is an elaborate discussion on different types of son, in different Dharmasutras. It is
interesting to note that various Dharmasutras give different types of secondary son, some of them are
placed in the category of heirs while others are considered as kinsmen. There are twelve or thirteen
kinds of son enumerated in different Dharmasutras. Of course, fifteen types of son have also been
14. Svayamjatah Kritkriyamaurasah, Arth, III, 7.

15. P.V. Kane, says that "such medieval works as the Mit. (on Yaj. II, 133), the Parijata and Apararka hold that
even the son procreated on a wife married in the anuloma order (e.g., the son of a Brahmana from a
Ksatriya wife or of a Ksatriya from a Vaisya caste wife) was also Aurasa. The exception was the son of a
Brahmana from a Sudra wife, who was called Saudra or Parasava and distinguished from the technical
Aurasa. From the definition of Aurasa given by all Smriti writers (and the dicta of such commentaries as the
Mit.) it follows that in order to be an Aurasa the procreation and the birth of the son must both be after the
marriage"., P.V. Kane, HISTORY OF DHARMASASTRA, 2nd ed. Vol. III, p. 656.
16. 1 IA 282, 293.
17. P.V. Kane, op. cit. n. 15, p. 656.
18. Supra n. 16.
19. Gooroodass Banerjee, THE HINDU LAW OF MARRIAGE AND STRIDHAN, TLL 1878, pp. 161-162.
3
mentioned by some writers. The doctrine of relation back concerns only with the adopted son,
therefore, detailed discussion on various types of son will not be relevant in the context.
Adopted Son : Under Old Hindu Law
The whole law of adoption before statutory amendments was rightly said to have been based
on a few texts of ancient Indian legal literature and a metaphor of Saunaka. The metaphor of Saunaka,
is that the boy to be adopted must bear "The reflection of a son." The texts are those of Manu,
Vasishtha, Baudhayana, Saunaka and Sakala.20 Generally, in the text of Manu which has influenced
the development of the law of adoption in Hindu law is contained in chapter IX of the code of Manu.
The other text deals with the problem of inheritance and allows the adopted son to take the inheritance
after the Aurasa son and the appointed daughter's son.21 There is another text of Manu which states
the secular and religious consequences of the adoption.22
Various types of Son : Under Modern Hindu Law
(i) The Aurasa son as defined under the doctrine of Pedda Amani v. Zemindar of Marungpuri.23
(ii) An adopted son made under Section 7, by the husband and the wife together.
(iii) An adopted son made by a widow or a wife whose husband has renounced the world or has
ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of
unsound mind. Such son adopted by a married Hindu female relates to the husband under
the law laid down by the Supreme Court in Sawan Ram's24 case.
(iv) An adopted son made by a single woman who is either unmarried or if married, her marriage
has been dissolved by a decree of divorce.
(v) An adoption made by a single male under Section 7, of the Act.
(vi) A son partially legitimate under Section1 16 of the Hindu Marriage Act 1955.
(vii) The son born of a marriage that has been repudiated under Section 13(2) (iv) of the Hindu
Marriage Act 1955.
(viii) A son born of a putative marriage, i.e., the marriage of whose parents is incomplete because
of the non observance of certain ceremonies or formalities as declared by the Supreme Court
in Bhau Rao Shanker Lokhande25 line of cases. Such a child is the offspring of a union
which must be treated as a putative marriage, consisting of the parties who treat themselves
as wife and husband, though certain formalities regarding marriage remains to be done.
(ix) The son born of a woman who was pregnant at the time of marriage.
(x) Illegitimate son.
Thus these various types of son are neither equal in status nor in rights. Hence, the Act has
not made any definite improvement in the concept of sonship, rather the Act has introduced various
type of children having unequal social status and rights. There is always a possibility of emerging the
20. John D. Mayne, TREATISE ON HINDU LAW AND USAGE, 11th ed. 1950, p. 188.
21. Of the man who has an adopted (Datrima) son possessing all good qualities, that same (son) shall take the
inheritance, though brought from another family. Vas. XV, 9-10; Baudh, Parisishta 16, Medh., Kull, and
Ragh, refer this rule to the case where a man has a legitimate son and an adopted son, and think that in such
a case the latter, being eminently virtuous, shall receive, like a Kshetraga (see verse 146), a fifth or sixth
part of the estate. Medh. remarks that some think he is to have half, but that their opinion is improper, and
finally that Upadhyaya, i.e., his teacher, allots to the adopted son less than to the Kshetraga. Kull. and Ragh.
state that Gov. took the verse to mean that an eminently virtuous adopted son shall inherit on failure of a
legitimate son and of the son of the wife, but that this explanation is inadmissible on account of verse 165.
Nevertheless Ragh. reproduces Gov.'s opinion; Nar. says, ‘It has been declared that an adopted son receives
a share like the chief son, when he is eminently virtuous'. Nand. reads at the end of the second line,
samprapto ‘sya na putrakah', shall take the inheritance, (provided) the (adoptive father ) has no son'. Manu,
IX, 141, SBE Vol. 25, p. 355.
22. An adopted son shall never take the family (name) and the estate of his natural father; the funeral cake
follows the family (name) and the estate, the funeral offerings of him who gives (his son in adoption) cease
(as far as that son is concerned). Medh, mentions another 'improper' explanation, according to which haret,
'shall take', is to mean harayet, 'shall allow to be taken', and the purport of the verse is that 'he is to benefit
both (fathers) like a Dvyamushyayana'. Manu, IX, 142, SBEVol. 25, p. 355.
23. (1874) 1 IA 282, 293.
24. Sawan Ram v. Kalawanti AIR 1967 SC 1761.
25. Bhau Rao Shanker Lokhande v. State of Maharashtra AIR 1965 SC 1564.
4
other types of son under the Act. Sonship as a concept in the modern scientific age, is the simplest one
which in the case of doubt may be ascertained with as much certainty as the maternity. The only thing
is the lack of desire on the part of the law makers not to streamline the progeny on scientific grounds.
In the modern age the definition of the child needs to be changed. Old definition of the child should
be discarded in the social interest of the child.26
Gradual social reform is being introduced to legitimise the children who are otherwise
illegitimate. Section 2 of the Legitimacy Act 1976 of England provides that where the parents of an
illegitimate person marry, the marriage shall, render the child legitimate. Section 3 of the same Act
goes still further. It reads :
Where the parents of an illegitimate person marry one another and the father of the
illegitimate person is not at the time of the marriage domiciled in England and Wales
but is domiciled in a country by the law of which the illegitimate person became
legitimated by virtue of such subsequent marriage, that person, if living, shall in
England and Wales be recognized as having been so legitimated from the date of the
marriage notwithstanding that, at the time of his birth, his father was domiciled in a
country the law of which did not permit legitimation by subsequent marriage.27
Such steps, gradually, may eliminate the concept of illegitimate child; when successful, the
sonship conception will wear its real form and the types of secondary son phrase will become
redundant.
Relation Back Doctrine in Old Hindu Law
There has been a controversy as to the actual date of operation of adoption with regard to the
rights of heirship of the adopted son to the property of his adoptive father and his collaterals. So far
the heirship to the property of his adoptive father is concerned the adopted son's rights of heirship
were clearly defined. The adopted son was considered to have been in existence at the time of the
death of his adoptive father, and he was consequently the heir to his pre-deceased adoptive father's
property. The doctrine of relation back which originally meant the relating of the fact of adoption with
the date of death of the adoptive father, the widow's deceased husband, was on logical grounds
considered to relate back to the death of a collateral also who had inherited the property of the
adoptive father, and the consequence of such relation back was to divest a person who had not only
inherited the property of the adoptive father but also the property of a collateral which got vested in
other heirs who would not have inherited the property had the adopted son been adopted before the
death of the collateral. The controversy as to the divesting of a collateral's property had engaged the
attention of the judiciary for quite a very long time. It was understandable that for the purpose of
divesting the estate of adoptive father, the adoption related back to the date of the adoptive father's
death. It was in 1886 that Judicial Committee of the Privy Council in Bhubaneswari Debi v.
Nilkomul28 held that the right of the adopted son relates back to succeed the property of the adoptive
father but it does not extend to the property of a collateral. But the Privy Council in Anant v.
Shankar29 stretched the fiction of relation back to its logical consequences and held that a valid
adoption by a widow would divest not only the property of his adoptive father but even the property
of a collateral which got vested in other heir because the adoption was not made at that time when the
collateral died. This case completed the full circle in the sphere of relation back jurisprudence.
The Privy Council reviewed in detail the case law relating to adoption by the widow and the
question of vesting and divesting of property.30 The Privy Council observed that "the adoption being
26. Shaw v. Gould (1868) LR 3, HL 55.

27. G.C. Cheshire, PRIVATE INTERNATIONAL LAW, 10 th ed. Ch. XIII, p. 453.
28. (1886) 12 IA 137-141.
29. (1943) 70 IA 232.
30. Chandra v. Gojarabai (1890) ILR 14 B. 463; Bhimabai v. Gurunathgouda Khandappagouda (1932) LR 60
IA 25-40; Madana Mohana v. Purushothama Ananga (1914) ILR 38 M. 1105-1118; Panyam v.
Ramalakshmamma (1931) ILR 55 . M. 581-590; Balu Sakharam v. Lahoo Sambhaji ILR (1937) B. 508;
(1937) 170 IC Bom., 393; Amarendra Mansingh v. Sanatan Singh (1933), LR 642; Vijaysingji
Chhattrasingji v. Shivasangji Bhimsangji (1935) LR 62; IA 161, 165; Bajirao v. Ramakrishna ILR (1941)
Nag, 707; K.R. Sankaralingam Pillai v. Veluchami Pillai AIR 1943 Mad 43; Raghunadha v. Brozo Kishoro
5
valid cannot be refused effect. That the property had vested in the meantime in the heir of Keshav is
not of itself a reason, on the principles laid down in Amarendra's31case why it should not divest and
pass to the appellant.”32
After reviewing the case law the Judicial Committee of the Privy Council held :
If the effect of an adoption by the mother of the last male owner is to take his estate
out of the hands of a collateral of his who is more remote than a natural brother would
have been, and to constitute the adopted person the next heir of the last male owner,
no distinction can in this respect be drawn between property which had come to the
last male owner from his father and any other property which he may have acquired.
Keshav's separate watan property devolves not on his mother who would be his heir
at the general law, but on the nearest male in the line of heirs; and if the appellant's
adoption as son to Bhikappa puts him in that position, his right to succeed cannot be
limited to such watan property as Keshav derived from Bhikappa. On this ground the
appellant's suit succeeds as regards the two parcels of land which Keshav inherited
from Narayan.33
The decision of the Judicial Committee of the Privy Council thus overruled the decision in
Bhubaneswari Debi v. Nilkomul.34 The decision in Bhubaneswari Debi was that the adopted son's
right emerging from the doctrine of relation back did not extend to divest the property of a collateral.
The implications of Anant's35 case was that a valid adoption by a widow is given complete logical
effect which resulted in divesting not the property of the adoptive father but also the property which
never came into the hands of the adoptive father. In Anant's36 case the property which was divested
was not the joint family property of the adoptive father, but the separate property of Keshav which
came in the hands of Keshav from Narayan to which Anant would definitely have been the
preferential heir if he would have been adopted prior to the death of his adoptive father, i.e., in 1905,
then naturally he (Anant) would have succeeded to Narayan in preference to Shankar. The course of
events is thus stated. "In 1908 Narayan died, leaving a widow but no issue, and the widow having in
or about that year remarried, the two plots which were his separate property devolved by inheritance
on Keshav as being his nearest reversioner at the date of the remarriage. Keshav lived till 1917, when
he died unmarried. At that date his nearest heir was the respondent Shankar, a somewhat remote
collateral, who obtained possession of the suit properties from the collector in 1928 despite
Gangabai's opposition. Thereupon, in 1930, Gangabai adopted the appellant Anant as a son to her
deceased husband Bhikappa, and in 1932, as next friend of her adopted son, brought the suit which
was now before the Board."37
The decision as to the divesting of property from Shankar inherited in 1908 from Narayan, a
remote collateral, has the effect that the adopted son is considered to be in existence in the family of
his adoption from the date of the death of his adoptive father which made him entitled to the property
not only of his adoptive father but also to claim as an heir of any relative to whom he would have
been entitled to inherit, if he would have been adopted in fact in 1905. The fiction that related back to
the date of the death of the adoptive father gave rise to another fiction that the adoption also related
back to the date of the death of a collateral. A fiction over a fiction has been created by the ruling of
Anant v. Shankar.38 Again, Anant's case ruling unsettled the law already settled since 1886 by the
Privy Council in Bhubaneswari's39 case. In order to avoid the hardship of divesting the collateral's
estate by the adopted son, the courts in India took resort to the practice of either side away the
(1876) LR 3 IA 154; Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 MIA 279 - 307;
Veeranna v. Sayamma (1928) ILR 52 M. 398.
31. LR 60 IA 242.
32. Supra n. 28, p. 238.
33. Supra n. 28, p. 243.
34. Supra n. 27.
35. Supra n. 28.
36. Supra n. 28.
37. Supra n. 28, pp. 234-235.
38. Supra n. 28.
39. Supra n. 27.
6
Anant's40 decision or distinguished it. The Patna High Court in Shri Chandra Choor v. Bibhuti
Bhushan41 did not refer to the Anant's42 case which had the direct bearing on the case before the Patna
High Court. The Bombay High Court took to the practice of distinguishing in Dattatraya v. Vaman43
the facts in the case were that on the death of a sole surviving coparcener the non watan properties of
the deceased devolved by succession upon the widow of a collateral while the watan properties
devolved upon the deceased's remoter male heirs A,B. Thereafter A's widow made an adoption of S to
her deceased husband. S sued A,B for recovery of watan properties on the ground that his adoption
related back to the date of the death of his adoptive father as well as to the date of the death of the
collateral. The Bombay High Court on the basis of the technique of distinguishing the Anant's44 case
held that the adoption cannot divest watan properties which were already vested in the defendant.
In Jivaji Annaji v. Hanmant Ramchandra,45 the Bombay High Court adhered to the Hindu law
rule that the adopted son cannot divest the property of a collateral relying on Bhubaneshwari's46 case
as reaffirmed in Anant's47 case though the Privy Council did not apply Bhubaneshwari's48 case rule to
the facts of Anant's49 case. The Madras High Court reviewed the law regarding the divesting of the
collateral's estate and arrived at the decision that the doctrine of relation back to the adopted father's
death does not extend to the collateral's date of death. The adopted son, therefore, cannot divest the
estate of a collateral which already vested in the heir of the collateral before the adoption. This view
was affirmed again in Shammugavedivalu v. Kuppu Swami.50
Notwithstanding, the following of Bhubaneshwari's51 rule, the highest judicial authority in
52
Anant's case held that adopted son can divest the property vested in an heir of a collateral stared
hard. Therefore, the controversy needed to set at rest which the Supreme Court finally resolved by
expressly curtailing the scope of the doctrine of relation back by overruling Anant v. Shankar53
partially. In Srinivas v. Narayan54 the Supreme Court reviewed almost the entire relevant case law. In
this case the contention of the appellant based on the decision of the Privy Council in Anant's case
was that on adoption the adopted son acquired all the rights of an 'Aurasa' son, that these rights related
back to the date of the death of the adoptive father, and that in consequence his right to share in the
joint family properties and to inherit from the collaterals should both be worked out as from that date.
The contention of the respondents based on - Jivaji case was that the doctrine of relation back
did not extend to properties which were inherited from a collateral. The question thus raised was one
of considerable importance, and involved a decision as to the correctness of the law laid down in
Anant's case considering the question on principle, the ground on which an adopted son is held
entitled to take in defeasance of the rights acquired prior to his adoption is that in the eye of law his
adoption relates back, by a legal fiction to the date of death of his adoptive father, he being put in the
position of a posthumous son, as observed by Ameer Ali J., in Pratapsingh Shivsingh v. Agarsingh
ji.55
Again it is to be remembered that an adopted son is the continuator of his adoptive father's
line exactly as an Aurasa son, and that an adoption, so far as the continuity of the line is concerned,
has a retrospective effect; whenever the adoption may be made there, it is no hiatus in the continuity
of the line. In fact, as West and Buhler point out in their learned treatise on Hindu law, the Hindu
40. Supra n. 28.

41. (1944) 23 Pat 763.
42. Supra n. 28.
43. (1950) ILR Bom 358.
44. Supra n. 28.
45. (1950) ILR Bom 510 (FB).
46. Supra n. 27.
47. Supra n. 28.
48. Supra n. 27.
49. Supra n. 28.
50. AIR 1954 Mad 705.
51. Supra n. 27.
52. Supra n. 28.
53. Supra n. 28.
54. AIR 1954 SC 379.
55. AIR 1918 (PC) 192, 194: (1918) 43 ILR Bom 778.
7
lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the
death of the widow renders the continuation of the line by adoption impossible.
It is on this principle that when a widow succeeds her husband's estate as heir and then makes
an adoption, the adopted son is held entitled, as preferential heir, to divest her of the estate. It is on the
same principle that when a son dies unmarried and his mother succeeds his estate as his heir, and then
makes an adoption to her husband, that adopted son is held entitled to divest her of the estate, vide
Vellanki Venkata v. Venkatarama56 and Verabhai v. Bai Hiraba.57
The application of this principle when the adoption was made to a deceased coparcener raised
questions of some difficulty. If a joint family consisted of two brothers A and B, and A died leaving a
widow W and the properties were taken by survivorship by B, and then W took a boy X in adoption,
the question was whether the adopted son could claim one half share in the estate to which A was
entitled. It was answered in the affirmative on the ground that his adoption related back to the date of
the death of A. But suppose before W makes an adoption, B dies leaving no son but a widow C and
the estate devolves on her, can W thereafter make an adoption so as to confer any rights on X to the
estate in the hands of C? It was held in Chandra v. Gojarabai,58 that the power to make an adoption so
as to confer a right on the adopted son could be exercised only so long as the coparcenary of which
the adoptive father was a member subsisted, and that when the last of the coparceners died and the
properties thereafter devolved on his heir, the coparcenary had ceased to exist, and therefore W could
not adopt so as to divest the estate which had vested in the heir of the last coparcener.59
This observation, it is submitted was of doubtful authority, the adoption in Chandra v.
Gojarabai's60 case was analysed in right perspective by the Bombay High Court in Balu Sakharam v.
Lahoo Sambhaji.61
In Chandra's62 case, there was a joint family consisting of a father and two sons Bhau and
Nana. Bhau died first leaving a widow, then the father died and Nana succeeded the joint family
property. Nana afterwards died leaving a widow Gojarabai, who got possession of the property. After
Nana's death Bhau's widow adopted the plaintiff as son to her husband, and brought a suit against
Gojarabai to recover the property from her. The court held that Nana, as the last surviving coparcener,
became the absolute owner of the property, that on his death the coparcenary was at an end and the
property vested in his widow as his heir. The subsequent adoption by Bhau's widow did not divest the
estate of Gojarabai since the brother's son was a more remote heir, from the point of view of
inheritance, to the last survivor than the widow. The court did not in terms hold that the adoption by
Bhau's widow was invalid, though there is a dictum by the Privy Council in Bhimabai Jivangouda v.
Gurunath Gouda,63 that such was the effect of the decision. In view of Amarendra Mansingh v.
Sanatan Singh,64 the adoption in Chandra's65 case must be treated as valid, and if the decision was
otherwise, it must be treated to that extent as overruled, but the real question is whether the decision
stands in relation to its effect upon the vesting of property. In fact, the effect of adoption by the widow
of a deceased coparcener has the effect of reviving the coparcenary, if the adoption is otherwise valid,
i.e., widow's power to adopt has not come to an end and if that is so, there can be no doubt that the
adopted son of the deceased coparcener Bhau would take in preference to the widow of Nana.66
In Chandra v. Gojarabhai's67case the question of vesting and divesting of property was
considered. This decision became inconsistent with the decision of the Judicial Committee. The
Supreme Court referring to the Pratapsingh Shivsingh v. Agarsingji Rajasangji68 and Amarendra
56. 4 IA 1 (PC).
57. 30 IA 234 (P).
58. Supra n. 30.
59. Supra n. 30, pp. 384-385.
60. Supra n. 30.
61. (1937) 170 IC Bom 393: (1937) Bom 508 (FB).
62. Supra n. 30.
63. 60 IA 25: 141 IC 9: AIR 1933 (PC) 1: 57 B 157:35 Bom LR 200: (1933) ALJ 363 (PC).
64. 60 IA 242: 143 IC 441: AIR 1933 (PC) 155.
65. Supra n. 30.
66. Supra n. 30, p. 395.
67. Supra n. 30.
68. Supra n. 55.
8
Mansingh v. Sanatan Singh,69 cases agreed that the validity of the adoption has no relevance to the
vesting or divesting of property. The Supreme Court referring to Balu Sakharam's70 case observed
that in such cases the adoption would be valid but that the estate which had devolved upon the heir
could not be divested.
The Privy Council in Anant's 71 case had in unequivocal term held: "if, then, the appellants'
adoption was valid, can it be held that it does not take effect on the property which had belonged to
the joint family because there was no coparcenary in existence on the date of the adoption"? Their
Lordships differed from Balu Sakharam's72 case and gave absolute effect by holding that Anant is
entitled to divest the heir of Keshav. Before the Supreme Court the actual point for determination was
not the scope of relation back so far the claim of the adopted son relates to the estate of his father but
the actual question for determination was the point for determination whether this doctrine of relation
back can be applied when the claim made by the adopted son relates not to the estate of his adoptive
father but that of a collateral.73
In the Oxford Dictionary the world "Collateral" is defined as meaning "descended from the
same stock but not in the same line". The reason behind the rule that there should be continuity in line
does not warrant its extension to collaterals. Nor is there any authority until we come to the decision
in Anant's74 case, which applied the theory of relation back to the properties inherited from collaterals.
With reference to collateral, the governing principle was that inheritance can never be in abeyance,
and that once it devolves on a person who is the nearest heir under the law, it is thereafter, not liable
to be divested.75 The Supreme Court further referred to the authority of Mulla's HINDU LAW and
again discussed the relevant aspect of the principle of relation back.
On the death of a Hindu, the person who is then his nearest heir becomes entitled at
once to the property left by him. The right of succession vests in him immediately on
the death of the owner of the property. It cannot under any circumstances remain in
abeyance in expectation of the birth of a preferential heir, where such heir was not
conceived at the time of the owner's death". "Where the estate of a Hindu has vested
in a person who is his nearest heir at the time of his death, it cannot be divested
except either by the birth of a preferable heir such as a son or a daughter, who was
conceived at the time of his death, or by adoption in certain cases of a son to the
deceased.76
The Supreme Court found that the Privy Council had widened the scope of the doctrine of
relation back by allowing Anant entitled to the properties inherited by Keshav from Narayan. In the
opinion of the Supreme Court it was difficult to follow the Anant's77 case and, therefore, the Supreme
Court did not find it difficult to expressly curtail the scope of the relation back doctrine propounded in
Anant's78 case and, therefore, Anant v. Shankar79 was partially overruled by the Supreme Court.
The fact is, as frankly conceded by the learned Judges, they were puzzled by the decision in
Anant's 80 case and as it was an authority binding on the Indian Courts, they could not refuse to follow
it, and were obliged to discover a distinction. This court, however, is not hampered by any such
limitation, and is free to consider the question on its own merits. In deciding that an adopted son is
entitled to divest the estate of a collateral, which had devolved by inheritance prior to his adoption.
Anant's81 case went far beyond what had been previously understood to be the law. It is not in
69. Supra n. 31.

70. Supra n. 30.
71. Supra n. 28.
72. Supra n. 30.
73. AIR 1954 SC 379-385.
74. Supra n. 28.
75. AIR 1954 SC 379-385.
76. Supra n. 54, p. 385.
77. Supra n. 54.
78. Supra n. 54.
79. Supra n. 54.
80. Supra n. 54.
81. Supra n. 54.
9
consonance with the principle well - established in Indian jurisprudence that an inheritance could not
be in abeyance, and that the relation back of the right of an adopted son is only 'quoad' the estate of
the adoptive father. Moreover, the law as laid down therein leads to results which are highly
inconvenient. When an adoption is made by a widow of either a coparcener or a separated member,
then the right of the adopted son to claim properties as on the date of the death of the adoptive father
by reason of the theory of relation back is subject to the limitation that alienations made prior to the
date of adoption are binding on him, if they were for purposes binding on the estate. Thus, transferees
from limited owners, whether they be widows or coparceners in a joint family, are amply protected.
But no such safeguard exists in respect of property inherited from a collateral, because if the adopted
son is entitled on the theory of relation back to divest that property, the position of the mesne holder
would be that of an owner possessing a title defeasible on adoption, and the result of such adoption
must be to extinguish that title and that of all persons claiming under him. The alienees from him
would have no protection, as there could be no question of supporting the alienations on the ground of
necessity or benefit. And if the adoption takes place long after the succession to the collateral had
opened in this case it was 41 years, thereafter-and the property might have meanwhile changed hands
several times, the title of the purchasers would be liable to be disturbed quite a long time after the
alienations. We must hesitate to subscribe to a view of the law which leads to consequences so
inconvenient. The claim of the appellant to divest a vested estate rests on a legal fiction, and legal
fictions should not be extended so as to lead to unjust results. We are of opinion that the decision in
Anant's82 case in so far as it relates to properties inherited from collaterals is not sound, and that in
respect of such properties the adopted son can lay no claim on the ground of relation back.83
The controversy in the case law as to the doctrine of relation back thus was finally settled in
1954 by the Supreme Court. But there was much more in the womb of the future for the doctrine of
relation back. In 1956, whatever the doctrine of relation back was left was erased by the Act of the
Parliament.84
Relation Back Doctrine in Modern Hindu Law
The doctrine of relation back in the law of adoption has been abrogated by Section 12 of the
Hindu Adoptions and Maintenance Act 1956 which reads : An adopted child shall be deemed to be
the child of his or her adoptive father or mother for all purposes with effect from the date of the
adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to
be severed and replaced by those created by the adoption in the adoptive family:
Provided that:
(a) the child cannot marry any person whom he or she could not have married if he or she
had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall continue to vest
in such person subject to the obligations, if any, attaching to the ownership of such
property, including the obligation to maintain relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested in him or her
before the adoption.
A reading of Section 12 gives an idea of the culmination of the law of adoption as to its effect
on the status of the adoptive child and its result on proprietary rights. Section 12 recognises the
absolute substitution of the adopted child in the family of adoption like the child born in the family of
adoption and on the date of adoption all the natural ties of relationship of the child in the family of his
birth stand severed and replaced by those created by adoption in the adoptive family. However, life of
law, as Holmes observed, is not logic but has been experience. The severance of blood relationship
does not occur notwithstanding the adoption, because the adopted child is precluded to marry any
person, whom he or she could not have married, if he or she had continued in the family of his or her
birth. Again, in the family of adoption by fiction blood relationship is created in both, the lines,
paternal and maternal. The adopted child also cannot marry certain persons with whom a natural born
child of the family of adoption could not have married. Again, clause (b) of Section 12 protects the
82. Supra n. 54.

83. AIR 1954 SC 379, 387-88.
84. Section 12 (c), the Hindu Adoptions and Maintenance Act 1956.
10
adopted child to retain the property which such a child inherited or vested in the child, of course,
subject to the obligations if any attached to that property.
The clause (c) of Section 12 has expressly buried deep the doctrine of relation back which
involved the ticklish problem of vesting and divesting of property, involving the multitudinary
litigation. A reading of Section 12 makes it clear that the adopted child becomes a substitute of a
natural born child in the family of adoption. It is the date of adoption which is material for the
creation of filial relations in the family of adoption and extinction of relations in the family of birth.
All the relational ties which are snapped from the family of birth are replaced in the family of
adoption. The old Hindu law doctrine of relation back relating to vesting and divesting of property has
been abrogated. The relation back doctrine created the proprietary problem of vesting and divesting of
properties. It was in view of this fact that the Parliament has expressly done away with the doctrine of
relation back.
The Doctrine of Relation Back : Judicial Approach
Proviso (c) to Section 12 is limited to the abrogation of the doctrine of relation back relating
to proprietary interest of the adopted child. The language of proviso (c) makes this clear. It reads, "the
adopted child shall not divest any person of any estate which vested in him or her before the
adoption." But the creation of the filial relationship is severed and created from the date of adoption
and in the family of adoption relationship is replaced by those created by the adoption in the adoptive
family. This replacement is the same as the creation of ties by natural birth. Hence, all relations the
adopted child left in the family of his birth are created by virtue of the fiction of adoption in the
family of adoption which is a sort of birth in the adoptive family. Therefore, in the matter of creation
of filial relation the proprietary doctrine of relation back has no say. Rather, the Parliament has
expressly provided the substitution of family relationship from the family of birth into the family of
adoption in Section 12 of the Act. The doctrine of relation back is statutorily excluded for a very
limited purpose of vesting and divesting of property alone. The Hindu law of joint family has not been
codified and its doctrine of the survivorship and coparcenary interests in a Mitakshara joint family do
not fall into the category of the property to which the question of vesting or divesting may arise
because the adoption by a widow in a coparcenary brings into existence a new coparcener who is also
related to the deceased husband of the adopting widow. The widow's deceased husband is substituted
as father to the adoptive child. Therefore, this adopted child in the joint family is a new coparcener
whose entry entails the relationship of the adopted child with the deceased husband of the widow
under the statutory substitution rule contained in Section 12 of the Act by virtue of which the
deceased husband of the widow becomes the adoptive father of the child. Therefore, the doctrine of
relation back, so as far filial relationship is concerned has neither been abrogated nor can it be
abrogated because adoption like birth relates a person with his present and past relations. Hence, the
doctrine in this sense has been existing and, rightly so, as recognised by the judiciary. The
Parliament's intention was also not opposed to this partial existence of the doctrine of relation back. In
fact what the statutory abrogation of the doctrine of relation back has been done was the purging of
evils of the doctrine of relation back in the matter of vesting and divesting of property. S.V.Gupte has
criticised the Supreme Court decision for the revival of the doctrine of relation back but his criticism
of the decision seems hardly convincing. The study of case law will reveal the soundness and rational
approach of the Supreme Court. The first case on the subject widely discussed is Sawan Ram v.
Kalawanti.85 In order to appreciate the correct import of the case it would be appropriate to state the
facts as found in the case :
One Ramji Dass died leaving behind a widow, Smt. Bhagwani. At the time of his
death, he owned some land and a house. 4 bighas and 17 biswas of the land were
mortgaged by Smt. Bhagwani on 2nd May, 1948 in favour of respondent No.3, Babu
Ram. Later, on 22nd August 1949, she executed a deed of gift in respect of the house
and the land covering an area of 50 bighas and 14 biswas in favour of Smt. Kala
Wanti who was related to her as a grand-niece. Sawan Ram appellant instituted a suit
for a declaration that both these alienations were without legal necessity and were not
85. AIR 1967 SC 1761. For criticism see S.V. Gupte, HINDU LAW OF ADOPTION, MAINTENANCE,
MINORITY AND GUARDIANSHIP, 1st ed. 1970. The criticism of Gupte is off the mark.
11
binding on him, claiming that he was the nearest reversioner of Ramji Dass, being his
collateral. In that suit, Smt. Bhagwani, the donee, Smt. Kala Wanti, respondent No.1,
and the mortgagee, Babu Ram, respondent No.3, were impleaded as defendants. That
suit was decreed and Smt. Bhagwani went up in appeal to the High Court. During the
pendency of the appeal, Smt. Bhagwani adopted respondent No.2. Deep Chand, the
son of Brahmanand and his wife, respondent No.1, Smt. Kala Wanti. A deed of
adoption was executed by her in that respect on 24th August 1959. The appeal was
dismissed in spite of this adoption.
Smt. Bhagwani died on 31st October, 1959, and thereupon, the appellant brought a
suit for possession of the house and the land which had been gifted by Smt. Bhagwani
to respondent No.1 as well as for possession of the land which she had mortgaged
with respondent No.3. It was claimed that Smt. Bhagwani had only a life interest in
all these properties, because she had divested herself of all the rights in those
properties on 22nd August 1949, before the Hindu Succession Act 1956 (No.30 of
1956) came into force. The adoption of Deed Chand was also challenged as fictitious
and ineffective. It was further urged that, even if that adoption was valid Deep Chand
became the adopted son of Smt. Bhagwani and could not succeed to the properties of
Ramji Dass. The suit was dismissed by the trial Court, holding that the adoption of
Deep Chand was valid and that, though Smt. Bhagwani had not become the full
owner of the property under the Hindu Succession Act 1956, Deep Chand was
entitled to succeed to the property of Ramji Dass in preference to the appellant, so
that the appellant could not claim possession of these properties. That order was
upheld by the High Court of Punjab.86
It was against this order that the appellant went in appeal to the Supreme Court. In the appeal
two questions were involved, one question relevant for present discussion was that "under the Act, an
independent right of adoption is given to a Hindu female and if a widow adopts a son, he becomes the
adopted son of the widow only and is not to be deemed to be the son of her deceased husband."87
The Supreme Court on this point examined the approach of the Andhra Pradesh High Court in
N.Hanumantha Rao v. N.Hanumayya.88 In this case the Andhra Pradesh High Court rightly held that
the right of the adopted son which had been rested on the theory of relation back could no longer be
claimed by an adopted son by virtue of the provisions of Section 12(c), but the Supreme Court did not
agree to the extension of filial relationship of the widow's adopted son to the deceased husband. The
observation of Andhra Pradesh High Court as reproduced by the Supreme Court in its judgment reads
….
The Act has made a notable departure from the previous law in allowing a widow to
adopt a son or daughter to herself in her own right. Under the Act, there is no
question of the adopted child divesting of any property vested in any person or even
in herself. The provisions of Section 13 make this position clear, by providing that an
adoption does not deprive the adoptive father or mother of the power to dispose of his
or her property by transfer inter vivos or by will…. On a fair interpretation of the
provisions of Section 12 of the Act, we are of the opinion that the Section has the
effect of abrogating ordinary rule of Mitakshara law that, as a result of the adoption
made by the widow, the adoptee acquires rights to the share of his deceased adoptive
father which has passed by survivorship to his father's brothers.89
The Supreme Court negatived the interpretation of Section 12 taken by the Andhra Pradesh
High Court in Hanumantha Rao's90 case giving its reason the Supreme Court observed:
We are unable to accept this interpretation of the provisions of the Act as taken by the Andhra
Pradesh High Court as it appears to us that the High Court ignored two important provisions of the
86. Ibid, p. 1762.

87. Ibid, p. 1763.
88. 1964-1 Andh WR 156.
89. Supra n. 85, p. 1764.
90. Supra n. 88.
12
Act and did not consider their effect when arriving at its decision. The first provision, which is of
great significance, is contained in Section 5(1) if the Act which lays down :
No adoption shall be made after the commencement of this Act by or to a Hindu
except in accordance with the provisions contained in this chapter, and any adoption
made in contravention of the said provisions shall be void.
It is significant that, in this Section, the adoption to be made is mentioned as "by or to a
Hindu". Thus, adoption is envisaged as being of two kinds. One is adoption by a Hindu, and the other
is adoption to a Hindu. If the view canvassed on behalf of the appellant be accepted, the consequence
will be that there will be only adoptions by Hindus and not to Hindus. On the face of it, adoption to a
Hindu was intended to cover cases where an adoption is by one person, while the child adopted
becomes the adopted son of another person also. It is only in such a case that it can be said that the
adoption has been made to that other person. The most common instance will naturally be that of
adoption by a female Hindu who is married and whose husband is dead, or has completely and finally
renounced the world, or has been declared by a court of competent jurisdiction to be of unsound mind.
In such a case, the actual adoption would be by the female Hindu, while the adoption will be not only
to herself, but also to her husband who is dead, or has completely and finally renounced the world or
has been declared to be of unsound mind.
The second provision, which was ignored by the Andhra Pradesh High Court, is one
contained in Section 12 itself. The Section, in its principal clause, not only lays down that the adopted
child shall be deemed to be the child of his or her adoptive father or mother for all purposes with
effect from the date of the adoption, but, in addition, goes on to define the rights of such an adopted
child. It lays down that from such date all the ties of the child in the family of his or her birth shall be
deemed to be severed and replaced by those created by the adoption in the adoptive family. A
question naturally arises what is the adoptive family of a child, who is adopted by a widow, or by a
married woman whose husband has completely and finally renounced the world or has been declared
to be of unsound mind even though alive. It is well recognised that, after a female is married, she
belongs to the family of her husband. The child adopted by her must also, therefore, belongs to the
same family. On adoption by a widow, therefore, the adopted son is to be deemed to be a member of
the family of the deceased husband of the widow. Further still, he loses all his rights in the family of
his birth and those rights are replaced by the rights created by the adoption in the adoptive family. The
right, which the child had, to succeed property by virtue of being the son of his natural father, in the
family of his birth, is, thus, clearly to be replaced by similar rights in the adoptive family, and,
consequently, he would certainly obtain those rights in the capacity of a member of that family as an
adopted son of the deceased husband of the widow, or the married female, taking him in adoption.
This provision in Section 12 of the Act, thus itself makes it clear that, on adoption by a Hindu female
who has been married, the adopted son will, in effect, be the adopted son of her husband also. This
aspect was ignored by the Andhra Pradesh High Court when dealing with the effect of the language
used in other parts of this Section.91
The other very important case in which the Supreme Court gave effect to the doctrine of filial
relation back by filially relating the adopted son by a widow to her deceased husband is Sitabai v.
Ramchandra.92 In this case the facts were :
Dulichand and Bhagirath were brothers and the properties concerned are, according
to the written statement of the defendant himself, ancestral. Plaintiff Sitabai is the
widow of Bhagirath, who pre-deceased Dulichand, his elder brother sometime in
1930. It is the admitted case of both the parties that after Bhagirath died, the plaintiff
Sitabai was living with Dulichand as a result of which connection an illegitimate
child defendant Ramchandra was born in 1935. Dulichand died on March 13, 1958.
Sometime before his death Sitabai adopted plaintiff No.2 Suresh Chandra and an
adoption deed was executed on March 4, 1958. After the death of Dulichand,
Ramchandra took possession of the joint family properties. The plaintiff therefore
91. Supra n. 85, p. 1765.

92. AIR 1970 SC 343.
13
brought the present suit for ejectment of the defendant Ramchandra, the illegitimate
son of Dulichand from the disputed properties.93
The High Court held that plaintiff No.2 became the son of Plaintiff No.1 in 1958 from the
date of adoption and did not obtain any coparcenary interest in the joint family properties. The High
Court thought that on the date of adoption Dulichand was the sole coparcener and there was nobody
else to take a share of his property and plaintiff No.2 had no concern with the coparcenary property in
the hand of Dulichand.94
The Supreme Court considered first the question whether the High Court was right in holding
that plaintiff No.2 Suresh Chandra at the time of his adoption by Plaintiff No.1 did not become a
coparcener of Dulichand in the joint family properties. The Supreme Court negatived the High Court's
approach and referring to the Gowli Buddanna v. Commissioner of Income - Tax, Mysore,95 observed :
That under the Hindu system of law a joint family may consist of a single male
member and widows of deceased male members and that the property of a joint
family did not cease to belong to a joint family merely because the family is
represented by a single coparcener who possesses rights which an absolute owner of
property may possess. In that case, on Buddappa, his wife, his two unmarried
daughters and his unmarried son, Buddanna, were members of a Hindu undivided
family. Buddappa died and after his death the question arose whether the income of
the properties held by Buddanna as the sole surviving coparcener was assessable as
the individual income of Buddanna or as the income of the Hindu Undivided Family.
It was held by this Court that since the property which came into the hands of
Buddanna as the sole surviving coparcener was originally joint family property, it did
not cease to belong to the joint family and income from it was assessable in the hands
of Buddanna as income of the Hindu undivided family.96
The Supreme Court fortified its observation by referring to the decision of the Judicial
Committee of the Privy Council in Attorney General of Ceylong v. A.R.Arunachalam Chettiar.97
In that case one Arunachalam Chettiar and his son constituted a joint family governed by the
Mitakshara School of Hindu law. The father and son were domiciled in India and had trade and other
interests in India, Ceylon and far Eastern Countries. The undivided son died in 1934 and Arunachalam
became the sole surviving coparcener in the Hindu undivided family to which a number of female
members belonged. Arunachalam died in 1938, shortly after the Estate Ordinance No.1 of 1938 came
into operation in Ceylon. By Section 73 of the Ordinance it was provided that property passing on the
death of a member of the Hindu undivided family was exempted from payment of estate duty. On a
claim to estate duty in respect of Arunachalam's estate in Ceylon, the Judicial Committee held that
Arunachalam was at his death a member of the Hindu undivided family, the same undivided family of
which his son, when alive, was a member and of which the continuity was preserved after
Arunachalam's death by adoption made by the widows of the family and since the undivided family
continued to persist, the property in the hands of Arunachalam as a single coparcener was the property
of the Hindu undivided family. The Judicial Committee observed :
…….. though it may be correct to speak of him as the 'owner', yet it is still correct to
describe that which he owns as the joint family property. For his ownership is such
that upon the adoption of a son it assumes a different quality; it is such, too, that
female members of the family (whose members may increase) have a right to
maintenance out of it and in some circumstances to a charge for maintenance upon it.
And these are incidents which arise, notwithstanding his so-called ownership, just
because the property has been and has not ceased to be joint family property.
The basis of the decision was that the property which was the joint family property of
the Hindu undivided family did not cease to be so because of the temporary reduction
93. Ibid, p. 345.

94. Ibid, p. 345.
95. 60 ITR 293: AIR 1966 SC 1523.
96. Ibid, pp. 345-46.
97. (1957) AC 540.
14
of the coparcenary unit to a single individual. The character of the property, viz. that
it was the joint property of a Hindu undivided family, remained the same. Applying
the principle to the present case, after the death of Bhagirath the joint family property
continued to retain its character in the hands of Dulichand as the widow of Bhagirath
was still alive and continued to enjoy the right of maintenance out of the joint family
properties.98
On the second question whether Suresh Chandra, plaintiff No.2, when he was adopted by
Bhagirath's widow became a coparcener of Dulichand in the Hindu joint family properties. The
Supreme Court reversed the view of the High Court that Suresh Chandra could not become the
adopted son of Bhagirath in view of the provisions of HAMA 1956. The Supreme Court referring to
the implications of Sections 5, 6, 7, 8, 12 and 1499 held :
It is clear on a reading of the main part of Section 12 and sub Section (vi) of Section 11
that the effect of adoption under the Act is that it brings about severance of all ties of the
child given in adoption in the family of his or her birth. The child altogether ceases to
have any ties with the family of his birth. Correspondingly, these very ties are
automatically replaced by those created by the adoption in the adoptive family. The legal
effect of giving the child in adoption must therefore be to transfer the child from the
family of its birth to the family of its adoption. The result is, as mentioned in Section
14(1) namely, where a wife is living, adoption by the husband results in the adoption of
the child by both these spouses; the child is not only, the child of the adoptive father but
also of the adoptive mother. In case of there being two wives, the child becomes the
adoptive child of the senior-most wife in marriage, the junior wife becoming the step-
mother of the adopted child. Even when a widower or a bachelor adopts a child, and he
gets married subsequent to the adoption, his wife becomes the step-mother of the
adopted child. When a widow or an unmarried woman adopts a child, any husband she
marries subsequent to adoption becomes the step-father of the adopted child. The
scheme of Sections 11 and 12, therefore, is that in the case of adoption by a widow the
adopted child becomes absorbed in the adoptive family to which the widow belonged. In
other words, the child adopted is tied with the relation of sonship with the deceased
husband of the adoptive widow. The other collateral relations of the husband would be
connected with the child through that deceased husband of the widow. For instance, the
husband's brother would necessarily be the uncle of the adopted child. The daughter of
the adoptive mother (and father) would necessarily be the sister of the adopted son, and
in this way, the adopted son would become a member of the widow's family, with the
ties of relationship with the deceased husband of the widow as his adoptive father. It is
true that Section 14 of the Act does not expressly state that the child adopted by the
widow becomes the adopted son of the husband of the widow. But it is a necessary
implication of Sections 12 and 14 of the Act that a son adopted by the widow becomes a
son not only of the widow but also of the deceased husband. It is for this reason that we
find in sub-Section (4) of Section 14 a provision that where a widow adopts a child and
subsequently marries a husband, the husband becomes the "step-father" of the adopted
child. The true effect and interpretation of Sections 11 and 12 of Act No.78 of 1956
therefore is that when either of the spouses adopts a child, all the ties of the child in the
family of his or her birth become completely severed and these are all replaced by those
created by the adoption in the adoptive family. In other words the result of adoption by
either spouse is that the adoptive child becomes the child of both the spouses. This view
is borne out by the decision of the Bombay High Court in Ankush Narayan v. Janabai
Rama Sawat.100 It follows that in the present case plaintiff No.2 Suresh Chandra, when
he was adopted by Bhagirath's widow, became the adopted son of both, the widow and
that of her deceased husband Bhagirath and, therefore, became a coparcener with
98. Ibid, p. 346.

99. For detail see Sections 5, 6, 7, 8, 12 and 14, the Hindu Adoptions and Maintenance Act 1956.
100. 67 Bom LR 864: AIR 1966 Bom 174.
15
Dulichand in the joint family properties. After the death of Dulichand, Plaintiff No.2
became the sole surviving coparcener and was entitled to the possession of all joint
family properties.101
The Bombay High court in H.P.Veeresh v. Channabasamma102 distinguished the Sitabai v.
Ramchandra103 case on factual grounds and held that where a widow of a sole surviving coparcener
succeeded the property of her husband and later on if she adopted a son that son undoubtedly be the
adopted son of her husband but such a son cannot have joint ownership with his adoptive mother.
This decision is undoubtedly in line with the principle that a woman cannot be a coparcener
and therefore, the property which she inherited from her husband became the wife's property.
However, life of law is not logic but it is experience, as Justice Holmes has said.104 The Andhra
Pradesh High Court in Jupudi Venkata v. Jupudi Kesava Rao105 has rightly held that a sole surviving
coparcener so long he remains the sole surviving coparcener can dispose of his coparcenary property
like his separate property and any alienation made by him cannot be challenged by a son born to him
or adopted by him but he cannot make any alienation after the adoption in the family is made. The
Supreme Court decision in D.S.Agalawe v. P.M.Agalawe106 was followed.
The Supreme Court in the 1987 decision in Vasant v. Dattu107 very clearly spelt out the
operation of the doctrine of filial relation back.
The Supreme Court did not agree with the suggestion that on the death of a member of joint
family the property must be considered to have vested in the remaining members by survivorship. The
Supreme Court held "the property, no doubt, passes by survivorship, but there is no question of any
vesting or divesting in the sense contemplated by Section 12 of the Act. To interpret Section 12 to
include cases of devolution by survivorship on the death of a member of the joint family would be to
deny any practical effect to the adoption made by the widow of a member of the joint family. We do
not think that such a result was in the contemplation of Parliament at all."108 To steer clear a
distinction between vesting and divesting of property by succession on the one hand and acquiring an
interest in the property by survivorship on the other hand, the adopted son can acquire interest in the
property by survivorship on the basis of the fiction of the doctrine of filial relation back. The Supreme
Court explained the law on this point as follows :
We are concerned with proviso (c) to Section 12. The introduction of a member into a joint
family, by birth or adoption, may have the effect of decreasing the share of the rest of the members of
the joint family, but it certainly does not involve any question of divesting any person of any estate
vested in him. The joint family continues to hold the estate, but, with more members than before.
There is no fresh vesting or divesting of the estate in any one.109
The Supreme Court thus in this case has confirmed the view of the Bombay High Court in
Ankush Narayan v. Janabai110 and its own view in Sitabai's111 case that a son adopted by a widow will
also become the adopted son of her deceased husband who shall become coparcener in the joint
family. The Bombay High Court in Hirabai v. Babu Manika Ingale112 seems to have given full effect
to the adoption made by a widow of sole surviving coparcener by allowing the adopted son to take
interests in the joint family property. "It is not predicated of a Hindu joint family that there must be a
male member in existence. Even after the death of the sole male member, so long as the property
101. Ibid, pp. 347-48.

102. AIR 1992 Kant 95.
103. Supra n. 92.
104. Holmes, COMMON LAW, p.1.
105. AIR 1994 AP 134.
106. AIR 1988 SC 845.
107. AIR 1987 SC 398.
108. Ibid, p. 399.
109. Ibid, p. 399.
110. AIR 1966 Bom 174.
111. Supra n. 92.
112. AIR 1980 Bom 315.
16
which was originally of the joint Hindu family remains in the hands of the widows of the members of
the family and is not divided among them, the joint family continues."113
The Bombay High Court further held that notwithstanding the fact that the property comes in
the hands of the Hindu widow, it does not lose its character as the one that belongs to the Hindu joint
family. This is more so when the Hindu widow can be the prospective mother because of the legal
capacity to adopt a child to herself and to her deceased husband. That capacity involves, as we have
indicated earlier, to have an adoptive child to herself and to her husband and to confer him with the
similar status as one that of the natural born child, which event has the legal effect of creating interest
in the joint family property if such a property exists at the date when the adoption takes effect and it
begins to operate on the principles of prospective-furthering. The entire process is voluntary. Once the
event is achieved the effect follows. Only because a particular legal effect ensues, the initial character
of voluntary act does not cease to be so and has to be continued even for the purpose of the result
from that perspective.114
The Bombay High Court further stated its conclusion in unequivocal words : We have already
indicated the other decisions of the Supreme Court, being Sawan Ram v. Kalawanti,115 Sitabai v.
Ramchandra116 and Commr.of Income-Tax v. RM.AR.AR.Veerappa Chettiar,117 which was followed
by the Supreme Court in Krishna Prasad v. C.I.T.Bangalore.118 We have, therefore, come to the
conclusion, on the authority of these pronouncements coming from the highest court and interpreting
the terms of the enactment as we find that the character of coparcenary and its property is not affected,
that its inalienable attributes are retained notwithstanding the declaration by which a Hindu female is
placed in the same position as any other Hindu male would be with regard to such property. Such a
view does not run counter, nor does it conflict with the express statement of law available in Section
14(1) of the Succession Act.119
The Bombay High Court in Krishnabai Shivram v. Ananda Shivram120 held that Section 12 of
HAMA 1956 could not have the effect of divesting a person of his property which vested in a last
surviving coparcener. In this case the court distinguished its own judgment given by Division Bench
in Y.K.Nalavade v. Ananda G.Chavan121on the ground that the ratio of the judgment would have no
application to the facts of the Krishnabai's122 case. In Y.K.Nalavade123 case the Bombay High Court
had held that the incidents of joint family properties and interest of the incoming and outgoing
members therein have not been altered in the least by the recent enactments.
It is submitted that the decision of the Bombay High Court in Krishnabai's124 case is not in
conformity with the rule of survivorship as understood by the Bombay High Court in
Y.K.Nalavade's125 case. Further also the decision is not in line with the decision of the Supreme Court
in Sitabai v. Ramchandra126 wherein the Supreme Court had accepted the claim of Suresh as a
coparcener of Dulichand on his adoption. Diwan also criticised Krishnabai's127 decision. And his
opinion is not only correct but it also conforms to the decision of the Supreme Court in Vasant v.
Dattu.128
113. Commar. of Income-Tax v. Veerappa Chettiar (1970) 76 ITR 467, 470.

114. Supra n. 112, p. 329.
115. Supra n. 85.
116. Supra n. 92.
117. Supra n. 113.
118. AIR 1975 SC 498.
119. Supra n. 112, pp. 331-32.
120. AIR 1981 Bom 240.
121. AIR 1981 Bom 109.
122. Supra n. 120.
123. Supra n. 121.
124. Supra n. 120.
125. Supra n. 121.
126. Supra n. 92.
127. Supra n. 120.
128. AIR 1987 SC 398. See Paras Diwan, MODERN HINDU LAW, 8 th ed.1990, pp. 233- 234.
17
Further where the child adopted is a coparcener in joint Hindu family his coparcenary interest
will not migrate with him in the family of his adoption because coparcenary interest is not within the
perview of vesting and divesting of property, as held by the Supreme Court in Vasant v. Dattu.129
But the Andhra Pradesh High Court in Y.Nayudamma v. Govt.of A.P.130 held that the
coparcener has got every right under Section 30 of the Hindu Succession Act to will away his
property or to dispose of or alienate in whichever way he desired, which he is entitled by birth. It may
be, that at a time when he alienated or willed away, there may not have been a definite demarcation of
the sons; but certainly he would be entitled to a particular share along with other coparceners which
could be given effect to by various modes of disposition. That presupposes that he had got an
independent right by birth which might be dormant in certain cases and patent in other cases. From
the foregoing what becomes apparent is that notwithstanding the adoption, a person in Mitakshara
family has got a vested right even in the undivided property of his natural family which on adoption
he continues to have a right over it. This, in our judgment, is the undivided interpretation which has to
be placed upon the provisions enacted in the proviso (b) to Section 12 of the Act; and to construe
otherwise, would be causing violence to the explicit expression given in the language of the said
proviso.131
It is submitted that this decision of A.P. High Court is in conflict with the decision of the
Supreme Court in Vasant v. Dattu132 and in Dharma Shamrao Agalawe v. Pandurang Miragu
Agalawe133 in which the vesting and divesting of property is held not to be applicable to the
coparcenary interest in the joint Hindu family. Hence, the Y.Nayudamma134 decision of the A. P. High
Court is not the correct law now after the Supreme Court's decision in Vasant135 and Dharma cases.136
The Supreme Court has clarified the legal position as to the operation and scope of Section 12
clause (c) in D.S. Agalawe v. P.M Agalwe.137 In this case the Supreme Court has scanned the judicial
opinions expressed in various decisions of the High Courts and the Supreme Court. The Supreme
Court clarified that the Sawan Ram's138 case only decided the relevant question that the adopted son of
a Hindu Widow was in fact the adopted son of her deceased husband. As to the observation regarding
provisions of Section 12 (c) the Supreme Court said that these observations were not necessary for
deciding the case which was before the court they have to be held obiter dicta.
The Supreme Court overruled the A.P. High Court decision in N. Hanumantha Rao v. N.
Hanumayya139 in which the A.P. High Court had taken the view that the vesting and divesting aspect
contained in Section 12 (c) have to be taken to apply to the case of survivorship also. The Supreme
Court further approved the Bombay High Court decision given in Y.K. Nalavade's140 case, because
that case was in conformity with the opinion of the Supreme Court in Vasant's141 case, in which the
Supreme Court had observed as to the operation of proviso (c) of Section 12 that the vesting and
divesting of joint family property is not covered by proviso (c) of Section 12, because introduction in
the joint family of a coparcener either by birth or adoption does not involve fresh vesting and
divesting of estate. The joint family property in a family governed by Mitakshara is always in the state
of flux. Therein the interests of the coparceners increase by death of a coparcener and decrease by
birth or adoption in the family.
The Supreme Court also relied on the dictum in Sitabai v. Ramchandra142 that the property
which was the joint family property of the Hindu undivided family did not cease to be so because of
129. Supra n. 107.

130. AIR 1981 AP 19.
131. Ibid, pp. 21-22.
132. Supra n. 107.
133. Supra n. 106.
134. Supra n. 130.
135. Supra n. 107.
136. Supra n. 106.
137. Supra n. 106.
138. Supra n. 85.
139. Supra n. 88.
140. Supra n. 121.
141. Supra n. 107.
142. Supra n. 92.
18
the "temporary reduction of the coparcenary unit to a single individual". The character of the property,
viz., that it was the joint property of a Hindu undivided family, remained the same.143
The Karnataka High Court relying on Sitabai's144 case held that when on adoption the adopted
child becomes a member of the adoptive family and all ties of the child in the family of his birth
become completely severed and those are all replaced by those created by the adoption in the adoptive
family, necessarily it follows that the plaintiffs 1 and 2 would be entitled to the share which the
adoptive father, if he were to be alive would have been entitled to. The question of vesting and
divesting does not arise as the joint family has continued and the properties are also continued to be
joint family properties.145
Evaluation
The Hindu Adoptions and Maintenance Act 1956 has introduced a welcome reform in Hindu
law, but it contains, some anomalies and infirmities which have come to light after its operation. The
first, infirmity which was partially corrected by the Supreme Court while construing the effect of
adoption made by a widow in Sawan Ram v. Kalawanti146 and Sitabai v. Ram Chandra147 line of
cases. The Supreme Court rightly held that when a widow adopts a son, the son shall be related to her
deceased husband also. The main question which the Supreme Court had to decide was the
determination of the family of the adoptive child who is adopted by a widow, or by a married woman
whose husband has completely and finally renounced the world or has been declared to be of unsound
mind even though alive. The Supreme Court decided this question on well recognised social
principles and policies that a married woman belongs to the family of her husband, and naturally the
adopted child would also belong to the same family. The natural conclusion, therefore, was that the
adopted child shall become the adopted son of the deceased husband of the widow. The criticism of
this approach of the Supreme Court in the academic circles overlooks the essential principles of
interpretation. It is an elementary rule that construction is to be made of all the parts together and not
of one part only by itself.148 In reaching the conclusion that the adopted son by a widow or a married
female would be the son of the husband of the widow, the Supreme Court had examined the entire
provisions of the Act. The Supreme Court did not take out the Hindu 'widow' or 'married female' on a
pin point but considered the Hindu female, who was a widow or married as belonging to the family
she was married in. Therefore, when the adoption is made by a widow she brings in a member in the
family, who becomes the member of the family and all rights are replaced in the family of his
adoption which have been lost in the family of his birth by virtue of his adoption. Thus all the ties of
the child in the family of his or her birth shall be deemed severed and replaced by those created by
adoption in the adoptive family.
The adopted child becomes the child of the widow and that of her deceased husband from the
date of adoption and such child does not divest any person of property already vested in a person. This
interpretation does not revive the doctrine of relation back. The doctrine of relation back restricts the
rights of the adopted son and the restriction as placed by Section 12 (c) is not displaced by the
decisions of the Supreme Court. About clause (c) of Section 12 the Supreme Court observed :
It appears that, by making such a provision, the Act has narrowed down the rights of
an adopted child as compared with the rights of a child born posthumously. Under
the Shastric law, if a child was adopted by a widow he was treated as a natural-born
child and, consequently, he could divest other members of the family of rights vested
in them prior to his adoption. It was only with the limited object of avoiding any such
consequence on the adoption of a child by a Hindu widow that these provisions in
clause (c) of the proviso to Section 12, and Section 13 of the Act were incorporated.
In that respect, the rights of the adopted child were restricted. It is to be noted that this
restriction was placed on the rights of a child adopted by either a male Hindu or a
female Hindu and not merely in a case of adoption by a female Hindu. This
143. Supra n. 92, p. 346.

144. Supra n. 92.
145. Ramanna Gowda v. Shankarappa AIR 1988 Kant 248, 50-51.
146. Supra n. 85.
147. Supra n. 92.
148. Tusquand v. Board of Trade (1886) 11 App. Cas 286 per Lord Blockburn.
19
restriction on the rights of the adopted child cannot, therefore, in our opinion, lead to
any inference that a child adopted by a widow will not be deemed to be the adopted
son of her deceased husband.149
The critics even twisted the judgment in Sawan Ram's150 case just to emphasis that the
approach of the Supreme Court in Sawan Ram's151 case is in flagrant breach of Section 12 of the Act.
Gupte states that in Sawan Ram's152 case the Supreme Court has held that the adoption of a son by a
widow after HAMA 1956 is not only to herself but also to her deceased husband and that it relates
back to the death of the husband for the purpose of determining the rights of the adopted son to
succeed to the estate of the deceased husband whether vested in her or others : the Court so held
notwithstanding the express language of Section 12 which abolishes the doctrine of relation back. 153
In fact, the Supreme Court did not use the underlined words, rather the Supreme Court gave the
rational interpretation to clause (c) of Section 12 by recognising the restriction in respect of the rights
of adopted child which are equally applicable whether the adoption is by a male or a female. These
restrictions do not lead to any conclusion that a child adopted by a widow would not be deemed to be
the adopted child of her deceased husband. It should be remembered that the law relating to the joint
Hindu family has not been amended by the statutes.
A correct appreciation of the law laid down in Sawan Ram line of cases is not grasped
properly by the critics. In Akhay Kumar v. Sarada Dai,154 the High Court observed :
In spite of decision of Supreme Court reported in Sawan Ram v. Kalawanti155 which
holds the field, jurists have expressed that son adopted by a widow though member of
family of her husband, it may not be correct to say that he is son of her husband. This
view is expressed in view of language of Section 5 of the Hindu Adoptions and
Maintenance Act, 1956. However, till the decision of Supreme Court reported in
Sawan Ram v. Kalawanti156 holds the field, it is binding on me and son adopted by
widow after death of her husband is also son of her husband. As such he is entitled to
all the rights of a son.157
It is, therefore, suggested that a proviso should be added to Section 7 of the Act that when a
widow or a married female makes an adoption, the adoption will also be filially related to her
deceased husband or to the husband of the married female, whose husband either finally renounced
the world or has ceased to be a Hindu or has been declared by a competent court of jurisdiction to be
of unsound mind. These changes, if made, would ensure a safer home for the child to be adopted. A
female Hindu who is married and whose husband becomes incapacitated, if chooses, not to remarry,
she would remain a member of the family of her husband. If she desires to make an adoption the
adopted child must be ensured full relationship in the family of his/her adoption and such a child must
be related to the husband of the female making the adoption. This would be in consonance with the
words and spirit of the Act.
***************
149. Supra n. 85, p. 1765.

150. Supra n. 85.
151. Supra n. 85.
152. Supra n. 85.
153. S.V. Gupte, HINDU LAW OF ADOPTION, MAINTENANCE, MINORITY AND GUARDIANSHIP, 1 st
ed. 1970, p. 11.
154. AIR 1995 Ori. 212.
155. Supra n. 85.
156. Supra n. 85.
157. Supra n. 85, p. 213.
20
J. DUNCAN M. DERRETT
The Hindu Succession Act, 1956: An

Experiment in Social Legislation
The statute to be discussed here has not yet been amended by Parlia-
ment or by any of the States of India, which have legislative power
concurrently with Parliament' to amend the various personal laws,
which will govern the family relationships of Hindus, Muslims, Parsis,
and (to a very small extent) Jews and Christians until the promised
Indian Civil Code is enacted.2 This portion of the 'Hindu Code' came
into force on the 17th of June, 1956, and has thus had more than three
years of life, during which its embarrassing and (to some critics' eyes)
deleterious features have been amply exhibited, and might have been
expected to inspire effective criticism by now. Notwithstanding the
introduction of the abortive central Bills Nos. 42, 43, 45, and 54 of 1958,
which sought to amend or supplement our Act, the general public
who are affected by it seem at present neither overtly nor violently
dissatisfied.
The theme of this article is this apparent quiescence. From a prac-
tical point of view, what have Indian Hindus to be satisfied with?
From an academic point of view, ought they not rather to regret a
wasted opportunity? As the first stage on the road towards the suc-
cession part of the Indian Civil Code, does it inspire confidence? A
critical and comparative appraisal of this remarkable statute could be
founded on several distinct lines of investigation, but for the present
we may attempt to answer these questions with a double motive: let
Indian legislators see their efforts as others see them; and let them ap-
preciate that sympathetic assistance is ready to hand, and that the in-
difference which they showed towards the learning accumulated by
comparative lawyers before 1956 may not have been an acceptable
precedent.
It has already been pointed out that, however odd a modern statute
law of succession to deceased Hindus might turn out to be, the pre-
existing law was immeasurably worse.' There is no doubt but that
J. DUNCAN M. DERRETT is Reader in Oriental Laws in the University of London, M.A.
(Oxon.), Ph.D. (London), Barrister-at-law, a former Tagore Law Professor of the
University of Calcutta.
1 Constitution of India, Seventh Schedule, List III, no. 5.
2Id., Art. 44.
3J. D. M. Derrett, Hindu Law Past and Present, Calcutta, 1957, esp. chapters 1, 2.
The Anglo-Hindu law's background and many of its details are to be found in the
encyclopaedic P. V. Kane, History of Dharmagistra, Poona, 1930-58 (5 vols. in 6 pts.
have appeared) esp. vol. 3. See also J. D. Mayne, Hindu Law and Usage, l1th ed. N.
THE AMERICAN JOURNAL OF COMPARATIVE LAW
Parliament was alive to this, and felt that any codification and amend-
ment would be better than none. This spirit led them to refer the ulti-
mate draft Bill to a Select Committee which contained neither out-
standing Hindu lawyers nor comparative lawyers,' to consult an in-
adequate bibliography of published material on topics to be dealt with
in the Act,' to make passing references in debate to Russian and Chi-
nese family laws and to the English Inheritance (Family Provision)
Act, 1938, but to compile no comprehensive survey or parallel tables
for their guidance, and to amend the text of the Bill in both Houses of
Parliament6
upon the spur of the moment, as if speed were the main
concern.
The text of the Act as passed is so misleading to a newcomer to the
subject that an exceptional degree of explanation is needed merely to
depict its present effect. Yet even here commentators have reached
widely differing opinions,7 and the High Courts have yet to deal with
many patent as well as the anticipated latent ambiguities, so that we
are left to our own devices, even at this late stage, to a quite remarkable
extent. It will be necessary to depict, in outline, the pre-existing law,
Chandrasekhara Aiyar, Madras, 1951 (repr. 1953) and D. F. Mulla, Principles of Hindu
Law, 12th ed. S. T. Desai, Bombay, 1959.
1 For the earlier history of the Bill see Derrett, above, and the introd. to the Bibliog-
raphy (note 5 below). H. K. Shah, "History of the Hindu Code," 60 Born. L. R. (J.),
(1958) 81-4. The Hindu Succession Bill (no. 13 of 1954), publ. May 26th, 1954 in Gaz.
of India Extraord., Pt. II, Sec. 2, pp. 339-59; referred to Joint Committee of both Houses
(ref. to as "Select Committee") July 25th, 1955; Report of Joint Committee presented
Sept. 19th, 1955, publ. Gaz. of India Extraord., Pt. II, Sec. 2, pp. 365-409. The Chairman
was the Minister for Legal Affairs, Sri H. V. Pataskar, who had never held judicial
office and is not known to have written (at any rate in English) on Hindu law. There
were 45 members, and their report was subject to 11 long minutes of dissent. The
annexed Bill differed in places fundamentally from the Bill referred to the Committee.
' Bibliography on the Hindu Succession Bill, 1954 (Biblio. no. 28), Lok Sabha Secre-
tariat, New Delhi, July 1955. Numerous articles of comparative legal interest are
omitted. In February, 1955, a series of 12 lectures was given in the University of Cal-
cutta on testamentary and intestate succession with special reference to that topic as
under discussion in India. The lectures assembled comparative material in an effort to
explain the history of the Hindu law and criticize constructively the Hindu Succession
Bill. They were widely publicized and well attended, but no effort was made to bring
the material to the attention of Parliament or its Select Committee.
6 Parliamentary Debates. Rajya Sabha. Official Report, Vol. XI. See 24th Nov. 1955-
30th Nov. 1955. The Debates in the Lok Sabha, reported in its own Official Report (see
27th April 1956-8th May 1956), are also available in summary (Synopsis of Lok Sabha
Debates, Pt. II, xiith Session, New Delhi, 1956). It is to be noticed that, unlike the
United States, India follows the English rule that a statute must not be construed by
reference to the report of a Parliamentary committee or the debates of the legislature,
unless (in very rare instances) it is essential to resolve an ambiguity as to the legisla-
ture's intention, where this question is relevant and inescapable, and no other canon of
construction produces an answer.
I Mulla, ed. S. T. Desai (above); R. N. Sarkar, Hindu Code, Calcutta, 1957; R. B.
Sethi, The Hindu Succession Act, Allahabad, 1959 (2d ed.); D. H. Chaudhari, The
Hindu Succession Act, Calcutta, 1957 (2d. ed.); S. Venkataraman, "The Hindu Succes-
sion Act, 1956: a Study," (1956) 19 Sup. Ct. J. (J.), 195f.; Paras Diwan, "The Hindu
Succession Act," 19 Sup. Ct. J. (J) (1956) 251f.; J. D. M. Derrett, "Some Problems aris-
ing under the Hindu Succession Act, 1956," 59 Born. L. R. (J) (1957) 33, 49, 68f.
DERRETT: THE HINDU SUCCESSION ACT, 1956
so that we can judge how far the "improvement" may give cause for
satisfaction, and this may more conveniently be done as each topic
arises. Our guesses as to the statute's meaning may then be significant,
and the upheaval which it plainly promises for nine tenths of the
Hindu population of India can be apprehended. We may approach the
task under the following heads: the statute's applicability to persons
and to property; the general scheme of testamentary and intestate suc-
cession; disqualifications and limitations upon the right of heirship;
and miscellaneous matters. The general history of the project of codifi-
cation, and the disquiet to which it has given rise on several grounds,
have been outlined elsewhere.8
THE APPLICATION OF THE ACT TO PERSONS AND TO PROPERTY
To those who fear the application of the Act to the distribution of

the estates of intestate decedents, some commentators have announced
that the Act does not apply to agricultural land, which remains, on the
whole, the most significant item of wealth in private hands.' In sec-
tion 4(2) we are told, "For the removal of doubts (sic) . . . nothing
contained in this Act-shall be deemed to affect the provisions of any
law . . . providing . . . for the devolution of tenancy rights in respect
of such (agricultural) holdings." But this appears to mean that where
a State has a statute specially regulating the devolution of tenancies,
i.e., the holdings of land direct from the State as landowner and re-
ceiver of land-revenue, that type of property will devolve according to
the statute in force for the time being (which normally reflects general
customary laws rather than any particular personal law) and not ac-
cording to the Act itself. It is left for the States which have such statu-
tory provisions to bring their tenancy laws into step with the Act.
Many States are affected.' Another view, which at the time of writing
awaits judicial support, sees in this provision a further protection for
anti-fragmentation statutes, a motive already referred to in the subsec-
tion itself (words omitted above-see note 52 below).
To this quite substantial exemption from the Act must be added
estates descending to a single heir according to the terms of agreements
8 Derrett, Hindu Law Past and Present (above); see the same, "The Codification of
Personal Law in India . . . ," 6 I.Y.B.I.A. (1957) 189-211; "Statutory Amendments of
the Personal Law of Hindus since Indian Independence," 7 Am. J. Comp. L. (1958)
380-93, and the General Report on Topic I-E-1 (same title) for the Brussels Congress
of the International Academy of Comparative Law (1958) printed in British Legal
Papers . . . , London 1959, 325-44.
9 R. N. Sarkar and others, misled by statements in the Rajya Sabha.
10 Extraordinary confusion prevailed on this in Parliament. It was actually imagined
that the (excluded) females would retain their rights under the general law but would
be refused access to the actual tenancies in question: Rajya Sabha Report, col. 611
and following. Punjab Tenancy Act and Assam, U. P. Bihar, and Hyderabad statutes
were referred to. How the subsection works is illustrated in Sitabai v. Kothulal (1957)
60 Bom. L. R. 408.
THE AMERICAN JOURNAL :OF COMPARATIVE LAW
entered into between the Government of India and the (former) Rulers
of States whose status was affected by the amalgamations which pre-
ceded the consolidation of the Union of India, certain other small
classes of estates," and the very important class of property known
as interests in Mitakshara coparcenary property, under certain circum-
stances which require careful explanation.
It was the intention of the framers of the original project that all
property (saving-at that stage-that of matrilineal joint families in
Malabar) should be subject to the same law of succession. The driving
force was not so much to "tidy up" the disordered and inconsistent
mass that were the rules of the Anglo-Hindu law, though this academic
aim was present, as to place women upon an approximately equal
footing in respect of property rights with men. The greater part of
India was governed by the Mitdksara, a twelfth-century textbook," as
interpreted according to certain later authorities and the judicial deci-
sions of Anglo-Hindu law. This authority prescribed that ancestral
property and accretions thereto should not pass by succession to the
widow, the daughter, the daughter's son, and subsequent agnatic and
cognatic heirs unless the decedent died withoutson, son's son, or son's
son's son, and in a state' of "severance" from his co-owners (called in
current terminology "coparceners") and, of course, not 'having "re-
united" with them so as to form once again a "joint family." The his-
tory of this particular rule, which was an artful solution to intense
difficulties of reconciliation of ancient texts and current practice,' is
beyond the scope of this paper. But the result was that if severance had
not taken place the agnates who survived the decedent and were "joint"
with him took all that he had had, took, as is said nowadays somewhat
inaccurately, by survivorship, to the exclusion of the widow, who had
merely rights of maintenance against the joint family property, valu-
able as these no doubt were.
The right of a Mitakshara coparcener to merge his self-acquired
property with the joint family property being widely recognized," any
attempt to reform Hindu law could be frustrated if either (a) the
Mitakshara coparcenary were not abolished or (b) the coparcenary
interest were not made subject to the same reformed rules of distribu-
tion as the unmerged self-acquired property. The original solution pro-
posed by the first Hindu Law Committee was to abolish the Mitakshara
coparcenary, and to substitute for it another form of tenure native to
"Section 5 (ii) "any enactment"-the Minister for Legal Affairs confessed he did
not know which was being saved by the provision: Rajya Sabha Report, col. 655. Also
5 (iii), a particular estate in Cochin.
12 Translated by H. T. Colebrooke in Two Treatises on Inheritance, published Cal-
cutta 1810 and many times subsequently.
" For a compendious treatment, Derrett, "A Strange Rule of Smrti and a Suggested
Solution," J.R.A.S. (1958) 17-25.
14 Lal Bahadur v. Kanhaia Lal (1907) L.R. 34 I.A. 65, I.L.R. 29 All. 244.
DERRETr: THE HINDU SUCCESSION ACT, 1956
India, that named after the textbook, the Ddyabhiiga of Jimfitavdhana

(12th cent.), which expounded it, and having much in common with
Anglo-American tenancy in common. On the death of the coparcener,
then, his share would pass by succession like any other property. But
the actual decision taken was that the Mitakshara coparcenary should
continue, provided that no one of the favored females, or the daughter's
son, survived the decedent." Consequently, when any Hindu dies own-
ing an interest in Mitakshara coparcenary property this interest may
still occasionally pass by survivorship, and to the extent that old copar-
cenaries have not been broken up by deaths, and new coparcenaries
may still be formed," the old Anglo-Hindu law relating to the joint
family will continue.1 Close female relations will no longer, however,
be at the mercy of the decedent's agnates.
Hindus who have married either under the old Special Marriage Act,
or that of 1954 which replaced it, form a privileged class, in that their.
property and that of their children (however these latter may have
married), but not apparently of their grandchildren, pass not under
the Hindu Succession Act, s but under the Indian Succession Act, 1929,
which groans under accumulated oddities and anachronisms, and is
overdue for revision.'" It is fashionable to regard this as a system of law
to which all enlightened Hindus should wish to conform.2"
On the other hand, while in consequence there are some Hindus to
whom the Hindu Succession Act does not apply, there are some non-
Hindus to whom it does apply. For the Act cuts through the jungle of
judicial distinctions between Hindus who have abandoned many non-
Hindu usages and customs but are recognizably Hindu for the purposes
of the application of the personal law, and tribal peoples who have
adopted some Hindu usages and customs but have not yet become
"Hindus,"" and prescribes that all who are not Muslims, Christians,
Parsis, or Jews are governed by the Act, unless they would not have
been governed by the Hindu law or by any custom or usage as part of
that law 2' if the Act had not been passed-this may exclude Chinese
Confucianists, for example. Buddhists from the Himalaya region are
15 Section 6, proviso. See G. K. Dabke at 60 Bom. L. R. (J.) (1958) 8f.
16 Apparently by an oversight a son, for example, succeeding to his father will hold
as a Mitakshara coparcener with his own son, since the latter's birth-right has not been
abolished.
17 Its greatest strength lies in a fundamental "communistic" attitude to property, and
in the legal powers of the "manager" (on whom see Mulla, sections 236 and following).
In 1955-56 the intention to codify joint family law was apparent; it has now been
abandoned.
'Section 5 (i).
19 See sections 9, 10 (domicile), 33, 33A (spouse and issue), 42, 43 (father excludes
mother), 48 (no limit to the degrees of kindred who may take).
20 Rajya Sabha Report, cols. 643-6.
21 Fanindra v. Rajeswar (1885) L.R. 12 I.A. 72, I.L.R. 11 Cal. 463; Ganesh v. Shib
(1932) 11 Pat. 139.
22 A mistake: custom derogates from the personal law, it is not a part of it.
Hindus for this purpose, and so are children of mixed marriages and
illegitimate unions if they are "brought up" as Hindus. No religious
qualification as such is contemplated'." Scheduled Tribes are for the
present exempted from the Act, but it is fair to add that the provisions
of the Act would be no more strange to them than to many of the
Hindu castes to whom it does apply."
Quite the most extraordinary part of the Act is its attempt to
bring matrilineal and patrilineal peoples, formerly governed by vari-
ous schools of law and various customs, under what is virtually a single
system. Even in the Code Napoleon and the Civil Code of Imperial
Germany no task of equal magnitude was undertaken. The patrilineal
peoples have made some concession, for they have included the mother
within the relations in the first class of the Schedule, to be a simulta-
neous heir with the widow, the son, the daughter, and the rest.25 This
turned out to be unnecessary, since special provisions were inserted at
a later stage to enable matrilineal peoples to enjoy a slightly modified
scheme of succession both to males and to females. This was by far
the greatest concession made by the representatives of the matrilineal
castes.26 Their new scheme of succession, which is basically the general
scheme, does not correspond to any scheme in existence prior to the
Act, and fundamentally ignores the essence of matriliny.2 7 Moreover,
when any member dies his interest in the joint family will pass. by
testamentary or intestate succession in any circumstances,28 unlike the
Mitakshara coparcenary interest which only so passes in certain -(ad-
mittedly common) circumstances. Thus, the destruction of the legal
foundation of the characteristic tarwad and tavazhi of the Malabar
joint family is immediately threatened, and unless members are scrupu-
lous to make suitable testaments this institution will soon disappear.
THE GENERAL SCHEME OF SUCCESSION
Testamentary Succession. The Act gives no hint as to the power

of testamentary disposition which a Hindu male or female possesses,
though the Hindu Adoptions and Maintenance Act, passed a little over
six months after the Hindu Succession Act, throws an indirect and
23 Section 2 (3). The rule was foreshadowed in Anglo-Hindu law: Nalinaksha v.
Rajani (1931) 58 Cal. 1392.

24 Section 2 (2). Those formerly subject to the Cochin Makkathayam Thiyya Act,
Act XVII of 1115 M.E./1940 A.D. will have found our Act not merely strange but even
retrogressive.
21 Class I of the Schedule. Synopsis of Loka Sabha Debates (above), p. 192 (7th May,
1956).
26 Section 17 modifying the effects of sections 8 and 15.
27 Property should descend to females and to the descendants of females in the female
line only. Departures from this had begun to be made in Madras State, but they were
hardly representative. "The future of Malabar personal law within the Framework of the
Projected Hindu Code Bill," Kerala L.T. (J.) (1952) 9-20. Derrett, Hindu Law Past and
Present, 247-53.
28 Section 7.
DERREIT: THE HINDU SUCCESSION ACT, 1956
somewhat obscure light on the question. We are left with the impres-
sion that the power remains as it was before, subject, as regards its ex-
tension, to the necessary warning that the former hindrances to direct
testamentary disposition of the coparcenary interest at Mitakshara law
are no longer to serve as excuses for depriving legatees of benefits out
of property held jointly-for the interest is specifically stated -to be
alienable by will. 2 It is most noticeable that just as local statutes may
prevent the Act's application to agricultural tenancies of a particular
type, so the proportion of joint family property which may pass under
a will or by intestacy will vary according to the High Court which is
seized with the case. The Act is silent, once again, on this point of great
practical importance. The Anglo-Hindu law fell into a veritable morass
of distinctions here.
The share taken by a coparcener at a partition by metes and bounds,"9
which is in point here,"' depended not merely upon the extent to which
debts and claims for future maintenance, funeral expenses, and the like
might diminish the fund available for distribution, but also upon the
number of females who might claim a beneficial share. Where the par-
tition is between a father and his sons, his wives are each entitled to a
share; where between sons after the father's death, their mother is
entitled; where between a son and grandson by a predeceased son, the
grandmother and even step-grandmother is entitled. 2 Yet none of these
rights apply in Madras, Andhra, Kerala, and in Mysore with reference
to Hindus governed by the so-called Dravida sub-school of Mitakshara
law. " Even in the remaining jurisdictions it has been held, probably
wrongly, that where a woman has inherited under the Hindu Women's
Rights to Property Act, 1937 (so that her maintenance is prima facie
secured) her rights at Hindu law proper are abrogated, 4 and that
where she has inherited at Hindu law proper from one son she is not
29 Section 30 (1) Explanation. The Anglo-Hindu law is seen in Laksmi Chand v.
Mst. Anandi (1926) L.R. 53 I.A. 123, I.L.R. 48 All. 313; Radha v. Ganga A.I.R. 1935
Lah. 661; Venkoba v. Ranganayaki A.I.R. 1936 Mad. 967. Jumna v. Mangal A.I.R. 1922
Lah. 473 seems to be no longer good law, but it and its authorities have not been over-
ruled as yet.
'oPratapmull v. Dhanbati (1936) L.R. 63 I.A. 33, A.I.R. 1936 P. C. 20. Sm. Laltabai v.
Krishnarao A.I.R. 1959 Madh. P. 100.
"1Section 6 Explanation 1: "the share ... that would have been allotted to him if a
partition of the property had taken place immediately before his death . .."
32 Sheo v. Janki (1912) 34 All. 505 Full Bench; Vithal v. Prahlad (1915) 39 Born.
373; Kanhaiyalal v. Gaura (1925) 47 All. 127; Babuna v. Jagat (1928) 50 All. 532;
Sriram v. Haricharan (1930) 9 Pat. 338; Jotiram v. Ramchandra (1941) Born. 638;
Rambhau v. Bala (1946) Nag. 732 (a dubious authority); Krishnalal v. Nandeshwar
(1919) 44 I.C. 146, A.I.R. 1918 Pat. 91 (a special rule of the Mithila (Bihar) school).
3' Mulla, section 315. The (Mysore) Hindu Law Women's Rights Act, 1933, modifies
the Mitakshara law; it applies in pre-1956 "Mysore State," and was not repealed spe-
cifically by the Hindu Succession Act: thus two types of "Mitakshara" partition law are
in force in modern Mysore State.
'3 Bhiwra v. Renuka (1949) Nag. 400; Shyamu v. Vishwanath (1955) 57 Bom.L.R.
807, A.I.R. 1955 Born. 410. See (1956) 58 Born. L. R. (J.) 97 f. for a criticism. The Act
of 1937 was repealed by our Act.
entitled to a share at a partition between two surviving sons." 8 Numer-

ous High Courts may refuse to accept these limitations; but all admit
that where a woman has obtained what used to be called stridhanam
(woman's peculiar property) from her husband or her father-in-law
the amount of her share must be diminished to that extent, or adeemed
entirely, as the case may be, to the profit of the other sharers. 6 What
portion of joint family property must be deemed to pass under a will
may prove a delicate question to determine, involving matters appar-
ently unconnected with the decedent or facts within his knowledge or
control.
The Anglo-Hindu law developed, as an integral part of its slow and
reluctant admission of 'Hindu wills,' a cautious regard for the rights of
those who were entitled either (a) to be maintained by the decedent
personally during his lifetime out of (i) any property or (ii) property
he had inherited from another person or was enjoying by right of
survivorship from another person, or (b) to be maintained out of the
decedent's estate by virtue of a moral obligation which he was himself
entitled to ignore during his lifetime, but was legally incumbent on
his heirs after his death. The wife and the unmarried daughter were
examples of the first, and the widow (except where she was allowed
to inherit by the Hindu law, by custom, or by statute) and the widowed
daughter-in-law of the last category. The widow of a predeceased uncle
or brother might exemplify the middle categories. 7
Since maintainees had no interests in the estate, and since they could
not acquire an equity over it unless they applied for a charge to be
created over it in their favor for a stipulated sum,8" the owner of the
hypothetically burdened estate could alienate it free of their rights, and
could do so equally effectively by sale, mortgage, or gift. Statutory re-
lief was granted to maintainees in two stages, the ultimate result being
that whereas a gratuitous transfer (including a legacy) or a transfer
for value to a transferee who had notice of the right of maintenance
could not defeat the right, and the transferee was bound to provide the
maintenance in question, a transferee for value without notice was free
of all claims."
The situation is so unlike those known either to Civil-Law jurisdic-
8 Indu v. Mrtyunjoy (1946) Cal. 128.
36 See refs. in Baburao v. Savitribai (1952) Nag. 578.
87 Subbarayana v. Subbaka (1884) 8 Mad. 236 (mother); Gajapathi v. Susi A.I.R.
1940 Mad. 850; Muthalammal v. Veeraraghavalu (1952) 2 M.L.J. 344; D. Rangamma v.
D. Chinnatayi (1956) An.W.R. 202; Chandramma v. M. Venkatareddi A.I.R. 1958
An. P. 396 (wife and widow); Savitribai v. Luximibai (1878) 2 Born. 573 Full Bench;
Yamunabai v. Manubai (1899) 23 Born. 608; Jai Nand v. Parandai A.I.R. 1929 Oudh
251 Full Bench; Ambu Bai v. Soni Bai (1941) Mad. 13 Full Bench; Appavu v. Nallam-
mal (1948) 1 M.L.J. 110 (rights against property-the daughter-in-law).
88 Ramchandra v. Kamalabai (1944) 46 Born. L. R. 358; Earamma v. Nathegowda
A.I.R. 1954 Mys. 26; Satwati v. Kali Shanker (1955) 1 All. 523 Full Bench.
89 Dattatraya v. Tulsabai (1943) Bom. 646.
tions or to the various Anglo-American systems that it is worthwhile

to point out that the transferee is free even if he is not a bona fide
transferee for value; i.e., there is no burden of proof upon him to show
that he made sufficient enquiry as to the existence of such claims before
he purchased." This is because the maintainee has neither a legal nor
an equitable right in the estate. It would take too long to describe the
court's jurisdiction to assess future and arrears of maintenance, and to
review its past awards. The rights of maintainees were substantial, and
considerably reduced the apparent fortune of an heir: but they implied
dependence, and hence the agitation to increase the number of benefi-
cial heirs.
The whole scheme has been renovated in the Hindu Adoptions and
Maintenance Act, 1956, in which a class of "dependants" has been cre-
ated who have a right to be maintained by the "heirs," which word,
it is submitted, includes legatees. 1 These dependants must not have
taken "any share" under the will or by intestacy, but it is submitted
that this does not mean what it says, for in view of the terms of section
22(4) they should be excluded only where their "share" at least equals
what the court would award them for their maintenance. The depend-
ants include parents, widow (until remarriage), minor son or son's
son or son's son's son, unmarried daughter, or daughter of pre-deceased
son, etc., widowed daughter, widowed daughter-in-law, and minor ille-
gitimate son and -unmarried illegitimate daughter. Orders of priority
of application for maintenance out of the estates where there are sev-
eral deceased relatives are provided. The main changes are that the
concubine who used to be a life incumbrance on the joint family prop-
erty4" has gone, and the illegitimate daughter, who used to be excluded
at Hindu law,44 is included.
The right to be maintained is lost for change of religion by conver-
sion from Hinduism. 5 It is possible that by contracting, for value, to
leave his estate to X a Hindu can effectively prevent any claim by de-
pendants, for section 26 says that debts of every description contracted
or payable by the deceased shall have priority. It is unlikely that Parlia-
ment contemplated testamentary contracts, as they are rare in India, as
in the Anglo-American world generally," but the words seem clear
40 Contrast the position of a transferee of a minor's property or of a non-alienating
coparcener's property: Hunooman Persaud v. Mst. Babooee (1856) 6 M.I.A. 393.

41 Sections 21 and 22 (1). Section 22 (2) refers to the obligation of those "who take
the estate."
42 Section 21 (iv)-(vii).
48 The Act ignores her: cf. Akku v. Ganesh (1945) Born. 216 Full Bench.
44 Padmavati v. Ramchandra A.I.R. 1951 Orissa 248. Compare A.I.R. 1959 Ker. 319.
46 Hindu Adoptions and Maintenance Act, 1956 section 18 (3).
46 One may contract, not to make an heir (cf. Erbvertrag), but to leave a specific
sum -by will: cf. Narasayya v. Ramachandrayya A.I.R. 1956 Andhra P. 209 with
Thakurani v. Dwarkanath A.I.R. 1953 S.C. 205 where 18th cent. English cases are
relied upon. India need not adopt American expedients to circumvent the Statute of
enough. Finally, the rights of dependants may still be defeated by

speedy alienations by the heirs to a transferee for value without notice
of the rights in question. 7 Though other provisions of the Act are not
strikingly dissimilar from those of the English Act of 1938, this last is
a far cry from the inescapable liability of the executors or administra-
tors; the difference was inevitable, as judicial administration of dece-
dents' estates in India is still the exception rather than the rule. The
heir inherits immediately on the death and if the executor and legatees
join they can give a good title equally quickly.
The employment of wills is bound to increase as the public becomes
more and more aware of the effect of the intestate distribution laid
down by the Act.
Intestate Succession. When valid legacies have been paid, the balance,
if any, will (subject to the rights of dependants) pass by intestate suc-
cession. There are no forced sharers in the Civil-Law sense, nor persons
entitled to dower or courtesy. There are no "homestead" provisions in
force. A proportion of the estate will in any case be payable by way of
Estate Duty, provided that it is not very small.48 The order of distribu-
tion will differ if the decedent is a male from that applicable to a
female's estate. Unlike the Islamic law, the Jewish law, and a Malabar
statute, which provide for such cases, " the Hindu law does not provide
(it never did) for succession to a person of indeterminate sex. The
Hindu law contemplated a third order of distribution, namely of the
property acquired by a hermit, or ascetic, or perpetual student after his
change of status. Our statute does not in fact mention these persons,
and it might be thought that the general law would apply to them;
Parliament obviously thought them of little importance," but in fact
they are numerous and their properties are sometimes extensive. The
Anglo-Hindu law would seem to be preserved by the operation of sec-
tion 4, since the Act applies to succession on death, and the ascetic and
hermit have already "died" civilly on their entry into the order in
question; the physical death finds them with no natural relatives, but
only spiritual relatives-a situation plainly not contemplated by the
statute 1
Frauds [cf. Maddison v. Alderson (1882) 8 A.C. 467 and Corbin on Contracts (1950)
§§ 432, 436, also T. E. Atkinson in Ann. Surv. of Am. Law (1953) 689-90] since it was
never in force in the mujassil and was repealed in the Presidency Towns in 1872.
47 Sections 27-8.
48 Estate Duty Act, 1953, amended by Act 33 of 1958.
49 S. G. Vesey FitzGerald, Muhammadan Law: an Abridgement, London, 1931, 158;
Maimonides, Mishneh Torah, xiii, 5, 5, 1-2; Cochin Makkathayam Thiyya Act, sec-
tion 5 (ii).
50 Report of Joint Committee, p. 369; Rajya Sabha Report, cols. 1020-1 (Kane's warn-
ing ineffective).
51 Section 4 (1) (a) " . any text, rule, or interpretation . . . shall cease to have
effect with respect to any matter for which provision is made in this Act." On spiritual
relationship see Sital Das v. Sant Ram A.I.R. 1954 S.C. 606, 613.
To illustrate the confused history of succession to males we may take

a hypothetical family of eight persons. P dies leaving a son, the son of
a predeceased son, the daughter of another predeceased son, a daughter,
a predeceased daughter's son, a widow (or widows), a mother, and a
father. If his death occurred in 1936, the son and the son of the pre-
deceased son would have taken the property between them as Mitak-
shara coparceners (or in Bengal and Assam as co-tenants, if they were
governed by Dayabhaga law). If in 1938, these two would have been
obliged to give one third of P's separate and self-acquired property to
the widow or widows, while the latter would have taken all his interest
in a Mitakshara coparcenary (if any) subject to a limited estate (see
below). If after the 17th of June, 1956, all the persons mentioned
except the father take in equal shares. That all daughters should take,
whether married or unmarried, is a very striking novelty in itself."l*
Since only a son and his own son can now form a fresh Mitakshara
coparcenary, and since neither at Mitakshara nor at Dayabhaga law
can a coparcenary come into existence amongst a group such as this, no
powers exist at law to enable one person to manage this property and
generally represent all owners, and difficulties will already have been
felt in dealing with this new property situation. Fragmentation is
avoided in some States by local laws obliging heirs of small estates to
sell, or restrict themselves to portions of the movable property, and our
Act specifically preserves these laws.5"
Most systems of intestate succession make clear distinctions between
descendants, spouse, ascendants, and collaterals. It comes as an equal
shock to those accustomed to the Civil-Law types and to those familiar
with Anglo-American types of distribution to find that the Act mixes
the classes apparently without any rational arrangement, and without
precedent. The Anglo-Hindu law in general prescribed, after the "male
issue," the following order: widow, daughter, daughter's son, mother,
father, brother, brother's son, brother's son's son, father's mother,
father's father, father's brother, and so on. Agnates came in spurts of
three degrees at a time until fourteen degrees inclusive from the com-
mon ancestor had been exhausted, and then cognates to within (it is
believed) five degrees on both sides of the family tree except where
one side consists entirely of males. 3 Variants among the schools in-
serted some selected cognates amongst the agnates, and admitted the
widows of predeceased agnates in succession within a limited number
51* Since dowries and marriage expenses are very heavy, unmarried daughters have
always had a preference in succession to males and females alike. India has (it is not
known why) never adopted for Hindus the rule of collation or hotchpot in respect of
advancements [cf. the English Administration of Estates Act, 1925, section 47 (1) (iii),
also H. I. Elbert in 51 Mich. L.R. (1953) 665] and the want of this useful and equitable
rule may cause much hardship as advanced and unadvanced daughters compete on equal
terms. The point was raised in 56 Bom. L. R. (J.) (1954) 101.
5"Section 4 (2).
53 Ramchandra v. Vinayak (1914) L.R. 41 I.A. 290, I.L.R. 42 Cal. 384.
of degrees after the sub-class consisting of their own husbands." All

the schools showed signs of a pronounced bias in favor of agnatic heirs
and heirs through males and on the father's side. Some High Courts
would not admit female cognates, and the Dayabhaga school recog-
nized only five female heirs, of whom the sister was not one, nor the
daughter's daughter. In our Act the bias still survives, but it does not
seem to justify the following order:
Class I (taking simultaneously and equally, except that representa-
tives of a predeceased descendant share his or her hypothetical share);
son, daughter, widow, mother, son of a predeceased son, daughter of
a predeceased son, son of a predeceased daughter, daughter of a pre-
deceased daughter, widow of a predeceased son, son of a predeceased
son of a predeceased son, daughter of a predeceased son of a prede-
ceased son, widow of a predeceased son of a predeceased son.
Class II (each sub-class excluding the subsequent sub-classes):
I. father; II. son's daughter's son, son's daughter's daughter, brother,
sister; III. daughter's grandchildren; IV. brother's children and sister's
children; V. father's parents; VI. father's widow and brother's widow;
VII. father's brother and sister; VIII. mother's parents; IX. mother's
brother and sister.
Next': agnates without limit of degree; then cognates without limit
of degree; then (optimistically) the Government of India. 5
The characteristic serial order of distribution, allowing relations of
the same degree but differing relationship, such as the brother's son's
daughter and the sister's son's daughter or brother's daughter's daugh-
ter, to share the estate only in the remotest reaches of the order, is here
preserved;5" but the order itself makes no sense to any traditionalist,
though some anomalous elements can be explained in terms of the
compromises which the reformers were obliged to make during the
original Bill's progress through Parliament.
At the end of the Schedule there appears the following: "references
(here) to a brother or sister do not include references to a brother or
sister by uterine blood." The reason was that whereas consanguine half-
brothers were traditionally almost as near as full brothers, in patri-
lineal families the uterine relations were virtually strangers. The classi-
cal jurisprudence ignored the fact that many widows remarried (an
improper act from the orthodox standpoint), and thus cast hardly a
54 The last a view of the Mayukha sub-school: Mulla, section 72.
55 Sections 8 and 29. The wording of the latter section ("such property shall devolve
on the Government") was due to awareness of the difficulty that may arise in private
international law if the State claimant takes jure regali and not as an heir: State of
Spain v. Treasury Solicitor (1954) 2 W.L.R. 64 (C.A.). This is an instance of India's
profiting from English experience.
56 It should be observed that a nearly Western system of distribution was enacted in
the Cochin Makkattayam Thiyya Act (above) but its value as a precedent was totally
ignored.
DERRETr: THE HINDU SUCCESSION ACT, 1956
glance at uterine half-blood. Now that divorce and remarriage are

completely habilitated in the modern Hindu system the relegation of
uterine half-blood seems oddly traditional. But it will work strangely.
Because she is mentioned in the Schedule, the mother's sister does not
include a uterine half-sister of the mother, who takes (if at all) as a
cognate. On the other hand, the mother's uterine half-sister's son is not
mentioned in the Schedule, and in case he comes into competition with
a mother's full sister's son he will take equally with him in preference
to a mother's consanguine half-sister's son, for the Act lays down a
general rule that (consanguine) half-blood always takes immediately
after full blood." On the subject of half-blood a further remark will
be made below.
Both in succession to males and in succession to females, female heirs
are now at a great advantage compared with their position before the
Act. Formerly these took (in most schools) subject to a limited estate
which, although it was more valuable than a life estate, placed serious
restrictions on the female holder's dealings. Her transferees could have
quiet possession beyond her lifetime (or the time when she forfeited
for remarriage, or surrendered) only if the transfers were for necessity
or for the benefit of the estate itself or for the deceased husband's
or predecessor's spiritual advantage. 8 Since the purchaser normally
bought lawsuits into his bargain he was not prepared to pay the market
price for the land. Indian women viewed these restrictions (which were
intended originally for their advantage) as outdated handicaps, and the
Act makes it clear in section 14 that female heirs or legatees will always
take as absolute owners unless the testator provides otherwise. This
produces consternation because property of one family will now be
able to be transferred to another, and perhaps a competitor family by
a widow's remarriage. There is no way of stopping this unless the
decedent in his will subjects his female beneficiaries to the old limita-
tions. In some parts of India and in some castes women were excluded
by custom, and these customs have been removed at one blow. Ad-
justment to the new situation cannot be speedy, and in the meanwhile
some hardship is to be expected.
Succession to females has been remodelled." Section 15(1) gives the
property on intestacy to the children and children of predeceased chil-
dren (but not grandchildren whose parents and grandparents are dead,
a strange omission in a land where very aged female decedents are
common who have had their children when they were in their teens)
and also to the husband. This is an innovation, since he was always
postponed to issue in the past. Next come the heirs of the husband, i.e.,
those upon whom the property would have devolved if the decedent
5
7 Section 18.
58 Mulla, chapter XI, sections 166-211.
59 Section 15; cf. Mulla, chapter X, sections 145-164.
had been the husband; then the parents equally; then the father's heirs;
lastly the mother's heirs. Then come two unique provisions. Whatever
the female decedent "inherited" (it is submitted that this should not
include legacies) from her parents must go in the absence of the issue
mentioned above not to the husband or his heirs, but to the heirs of
the father. As a living person has no heirs we must (to avoid an absurd
result) give the property to the father when he in fact survives and it
was inherited from the mother. Similarly, when property is inherited
from the husband or father-in-law it must pass to the heirs of the hus-
band, i.e., (it is submitted) to the husband or his heirs. We need not
enlarge on the difficulty of deciding whether property from a first
father-in-law will go to the last husband. These provisions derive from
the traditional Hindu jealousy of allowing property to be transferred
indirectly from one family to another through the medium of a female
given in marriage from one to the other. This splitting of the estate and
multiplication of the number of heirs that may be liable to maintain
dependants should prove more inconvenient than it is worth. If the
"limited estate" could be abolished, this, one would think, was equally
fit for being excluded, and in fact it was intruded into the Bill at the
very last moment: it had not occurred to any of the Select Committees.
DISQUALIFICATIONS AND LIMITATIONS UPON THE RIGHT OF HEIRSHIP
If a father's widow has remarried before the death of the decedent

she is not thereby disenabled to inherit; but a son's widow and a
brother's widow are disqualified." ° This is an anomalous attempt to
represent a traditional rule. Where a son has separated from his father,
both being members of a Mitakshara coparcenary, and the father ac-
cumulates a large fortune and dies, the other sons who remained joint
with their father will share in it, if it has been merged with the joint
family estate, and so will the female relatives mentioned in Class I of
the Schedule (see above), but he will be excluded completely. This is
an antique (and mistaken) rule improperly embalmed.61 If a Hindu
relation becomes a Muslim or a Christian he may still inherit (for an
Act of 1850 dealing with loss of caste and change of religion is still
respected), but his descendants, being Christians, cannot inherit from
their Hindu relation. This goes contrary to the customs of castes in
Malabar which experienced this type of claim frequently, and has been
enacted 2 in spite of the rule that Hindus may succeed to their Christian
relations under the Indian Succession Act. The really important dis-
qualification in Hindu eyes, that a widow shall not inherit if she is
60 Section 24.
61 See (1956) 19 Supr. Ct. J. (J.), 103 f.
62 Section 26.
unchaste at the time the succession opens, is abolished."' The murderer

or abetter of a murder is disqualified from taking not only the property
of the murdered decedent but also any property in furtherance of the
succession to which the murder was committed. 4 This is a satisfactory
rule which deserves imitation. No effort has been made to deal with
the problem of the murder of a co-tenant, upon which much had been
written by the time the Act was passed." The ancient disqualifications
known to the Dayabhaga school (e.g., the blind, leprous, deaf-and-
dumb) are abolished, and also the last surviving disqualification of the
Mitakshara school (the congenital lunatic or idiot). It is no longer
believed, apparently, that such heirs are better served with a right to
maintenance than by a beneficial share, which, after all, someone has
to manage for them.
We have seen how heirs' benefits may be cut doWn in order to sat-
isfy dependants. In other respects also, the heirs may find their shares
hedged about with restrictions. These are all new, and have been
imposed as a sop to those who fundamentally disapproved of the
changes brought about by the general scheme of distribution. Hindus
do not like to face the possibility that a son-in-law or a brother-in-law
may be entitled to live with them in their own house. Where in India
one member of a family comes in other, sometimes quite remote, mem-
bers are soon to be found and are difficult or impossible to evict. Hence
when daughters and sisters were given intestate shares which might
include an interest in a dwelling-house Parliament provided that (a)
they should not have a right of partition of the house until the male
heirs (or heir?) consented to a partition, and (b) they should not
have a right of residence in it unless they were widowed, unmarried,
deserted by or separated from their husbands! 6 Splitting immovable
property, such as a block of flats or a farm, and carrying away a share
at the behest of her husband or (to be more practical) his parents, a
daughter-heiress (or for that matter even a son) could disrupt her (or
his) own family's affairs. The same applies if they are business people;
their capital, if it had to be called in in order to be partitioned or alien-
ated, might be very adversely disposed in the meanwhile. Thus no heir,
male or female, can now insist upon fransferring an interest in im-
movable property or a business. The co-heirs must be given an oppor-
63 Ramaiya v. Mottayya A.I.R. 1951 Mad. 954; Kisanji v. Lukshmi A.I.R. 1931 Born.
286; Deivanai Achi v. Kasi A.I.R. 1957 Mad. 766.
64 Section 25. It seems better than the Civil Code of Japan, 1946, Art. 891 (1) in that
it applies to more classes of property, but less good in that it does not apply to those
who attempt to murder. For a comparative study see Derrett, "The Slayer's Bounty,"
1 Univ. Ceylon L.R. (1958) 27-41.
65 See 49 Harv. L.R. (1936) 715-54; 39 A.L.R. 2d. 477-505; 37 Iowa L.R. (1952)
582-9; also Ashwood v. Paterson 49 S. 2d. 848 (1951) and Grose v. Holland 357 Mo. 834,
211 S.W. 2d. 464 (1948).
66 Section 23.
tunity to buy him or her out, and provisions for pre-emption are laid
down in the act."7 It seems that a skillful heiress could realise more
than the market value of her share if the property were much more
valuable in its undivided state, and if she could play one of her co-heirs
off against another, for the Act contemplates something very like an
auction amongst them.
MISCELLANEOUS MATTERS
The Act seeks to make the law "up to date," and, for example, in its
abolition of the limited estate, its contempt for the joint family, and its
abolition of the protective provisions of the law relating to "disquali-
fied" persons, tends towards the Western as well as the Modern. The
instance of the murderer's disqualification shows that attention to ad-
vances in academic work on technical succession problems was not
entirely absent. Another instance is the commorientes rule, which, by a
subtle change of wording, avoids an anomaly that appeared in Eng-
land. 8 Yet here, too, the lack of concentration and research is revealed.
The English commorientes rule is far from adequate, has been treated
with disdain in its country of origin,"8 and should give place to a more
complicated, but more logical rule."0 The rule that (consanguine) half-
blood must be postponed to full blood still attracts the unthinking:
plainly no one loses if all collaterals, whether of full or half-blood,
share equally, since the reciprocity of the rule avoids any apparent
injustice. 7 Likewise, our Act disenables collaterals to take by represen-
tation per stirpes: the antique preference for degree, which survives
from the Anglo-Hindu law, is out of tune with contemporary usage
and perhaps with common sense-however meritorious the surviving
brother's nearness may be, his predeceased brother's children's needs
impress the community favorably and will generally have impressed
the decedent himself."2
A most unfortunately missed opportunity is revealed in the treatment
of the highly controversial topic of illegitimates. Parliament believed
that it was enacting what had been consolidated by case-law previously,
merely abolishing the well-known and valuable right of the illegitimate
sons of the numerous caste known as Sudras by their kept concubines
67 Section 22.
68 Law of Property Act, 1925, section 184. In re Cohn [1945] Ch. 5; Hickman v.
Peacey [1945] A.C. 304 (H.L.) The Indian authorities before 1956 were very feeble:
Y. N. Kulkarni v. Laxmibai A.I.R. 1922 Born. 347; Manorama v. Rama A.I.R. 1957
Mad. 269, 278.
69 Intestates' Estates Act, 1952, section 1 (4).
70 The United States Uniform Simultaneous Death Act: 38 Iowa L.R. (1953) 750-62.
See also 30 Oregon L.R. (1951) 172-7; 16 Can. B.R. (1938) 43-51. A set of rules that
may meet most requirements is suggested in 56 Bom. L. R. (J.) (1954) 106.
71 See Atkinson in 20 Iowa L.R. (1935) 185, 197 f.
72 The Indian Succession Act allows representation: section 47.
to take a half of a legitimate son's share, or in some circumstances all

the estate. The abolition was intended to make the law more "up to
date." Lengthy discussions in Parliament failed to establish the need
for either the complete equating of illegitimates with legitimates (for
which precedents are not wanting outside India) or the abolition of the
distinction between the legitimate and illegitimate child of a woman
(for which sufficient precedent existed in India) 7" whether in succes-
sion to the woman, or, a somewhat harder cause to argue, in succession
to that woman's kindred. Yet the actual words of the provision"4 suggest
that the latter result was achieved, besides other unexpected novelties
which cannot be discussed here.
In conclusion, it may be suggested that this experiment in social
legislation will serve in two ways as a preparation for the Indian Civil
Code. The public's reactions to the Act and the most commonly utilized
devices to evade or supplement its provisions, whether by wills or
by settlements and contracts, may be watched and statistics may be
compiled after a period; the expense, which was taken for granted in
Britain when the various laws of succession were about to be over-
hauled,"6 would be amply justified. Secondly the anomalies and in-
sufficiencies, practically and academically, may be scrutinized in the
light of experience gathered from all parts of the world; for it is always
easier to criticize an existing provision than one which is still inchoate,
lying unborn between the committees which have been drafting and
the legislators who have still to enact.
73 "Inheritance by, from and through Illegitimates at Hindu Law," 57 Bom.L.R. (J.)
(1955) 1-22, 25-39.
74 Section 3(1) (j): "provided that illegitimate children shall be deemed to be related
to their mother and to one another, and their legitimate descendants shall be deemed
to be related to them and to one another; and any word expressing relationship or de-
noting a relative shall be construed accordingly."
75 See Report of the Committee on the Law of Intestate Succession in Northern Ire-
land (1951), Cmnd. 308; Law of Succession in Scotland, Report of the Committee of
Inquiry (1951), Cmnd. 8144; Report of the Committee on the Law of Intestate Suc-
cession (1951), Cmnd. 8310.
PROPERTY RIGHTS OF HINDU WOMEN:
A FEMINIST REVIEW OF SUCCESSION LAWS OF
ANCIENT, MEDIEVAL, AND MODERN INDIA
DebaratiHalder*andK. Jaishankar**
INTRODUCTION
Hindu women's legal right to inherit property has been restricted

from the earliest times in Indian culture. In the ancient text
Manusmriti,' Manu writes: "Her father protects her in childhood, her
husband protects her in youth and her sons protect her in old age; a
woman is never fit for independence." 2 However, women were not
always excluded from inheriting movable or immovable property from
ancestral and marital families. But their proportion of share in the
property was far less than that of their male counterparts.
* Advocate and Research Assistant, International Cyber Bullying Project, Department of

Criminology and Criminal Justice, Manonmaniam Sundaranar University, Tirunelveli, Tamil
Nadu, India. Email: [email protected]. URL: http://www.debaratihalder.co.nr.
** Assistant Professor (Senior), Department of Criminology and Criminal Justice,
Manonmaniam Sundaranar University, Tirunelveli, Tamil Nadu, India. Email:
[email protected]. URL: http://www.drjaishankar.co.nr.
1. This author has previously defined the Manusmriti:
The Manusmriti is the Hindu code of ancient India, which dealt with the relationships
between social and ethnic groups, between men and women, the organization of the state
and the judicial system, reincarnation, the workings of karma, and all aspects of the law.
This Hindu Code is important for its classic description of so many social institutions
that have come to be identified with the Indian society. Even after several centuries, it
still generates controversy, with Manu's verses being cited in support of the oppression
of women and members of the oppressed castes.
K. Jaishankar & Debarati Haldar, Manusmriti: A Critique of the Criminal Justice Tenets in the
Ancient Hindu Code, 1 ERCES Online Q. Rev. no. 3 (2004), www.erces.com/journalarticles/
archives/v03/v03 05.htm (accessed May 22, 2009).
Hindu orthodox families discriminate against female children, from the time of their birth,
in education, health and hygiene. Hence, girls remain ignorant of their basic rights.
2. Manu IX.3: Manusmriti: The Laws of Manu, in Sacred Books of the East 56 (G. Buhler
trans. 1886) (available at http://wwv.hinduwebsite.com/sacredscripts/laws of manu.htm) (last
updated 2007).
Even though laws are made to prevent child marriages, such acts still prevail in many
villages of India. Once a girl is married as a child, she never returns to ask for the share of her
ancestral property, nor are such demands entertained by her parental family. The main reason for
this is that, once married, she introduces a new member to the coparcenery property-her
husband.
JOURNAL OFLAW & RELIGION [Vol. XXIV
Throughout history, restrictions on Hindu women's property rights

have undergone change, and current laws governing these rights are
more liberal than those of ancient Hindu society. Patriarchal Hindu
society provided women with property known as stridhan (literally,
women's property or fortune),3 and it mainly came from marriage gifts
(clothes, jewelry, and in some rare cases, landed properties). However,
women were denied property rights to the ancestral or marital landed
property, and their right over succession of the landed family property
was limited. With the emergence of different schools of Hindu law, the
concept of stridhan started expanding its literal and legal meaning,
granting women more rights to certain forms of property. Later, the
nineteenth and twentieth centuries witnessed the passage of several
pieces of legislation that were intended to remove more of the barriers to
full and equal property rights for Hindu women. Most recently, sexual
discrimination in Hindu succession rules was mostly discontinued by the
recent Hindu Succession (Amendment) Act (2005). 4
This article critically examines the development of succession
rights of Hindu women from the ancient to the modem period, from a
feminist perspective. It also analyzes the present status of Hindu women
as property owners. The article is divided into three parts. The first part
examines the influence of the Hindu religion and socio-cultural factors
in the formation of succession laws for Hindu women and the concept of
stridhan in the ancient period. The second part discusses the plight of
Hindu female heirs in the medieval period. The third part analyzes the
colonial rules and laws protecting women's right over property and the
development of the concept of stridhanto modem inheritance laws.
I. THE ANCIENT PERIOD
A. Women and Property in Ancient Hindu Scripts

The Sanskrit saying "Na stri swatantramarhati-'SwatrantamNa
Kachit Striyah' '5 meant that women were unfit for any independent
3. Stridhan (stri, meaning women, and dhan, meaning fortune or property in Sanskrit)
literally means property of a woman. The Manusmriti first used the term stridhan to denote
portions of property that can be owned by women alone. Women are regarded as a means of
bringing more property to in-laws' families by way of dowry. The language of the Dowry
Prohibition Act (1961), India Code Act No. 28 of 1961, gives enough scope to convert stridhan
into dowry in camouflaged ways. The text of all Central Acts of the Indian Parliament are
available at indiacode.nic.in. The Acts can be searched by their popular names or Act numbers
presented in this article.
4. India Code Act No. 39 of 2005.
5. A.M. Bhattachajee, Hindu Law and the Constitution 120 (2 d ed., E.L. House 1994).
663] PROPERTY RIGHTS OF HINDU WOMEN
existence and was the rule of ancient Hindu society. A woman was
considered less than fully human, an object to be preserved by her male
guardians. Even though the Puranas,the mythological stories passed on
from the time of Krishna,6 described Goddesses as Shakti (Goddess of
universal power), Mahalakhshmi (Goddess of wealth), and
Mahasaraswati,(Goddess of knowledge), mortal women were placed
below the status of Sudra,7 the lowest varna s of Hindu society.
The ancient scriptures never mention any property for an unmarried
woman. However, when she married, a woman could possess a limited
range of property, called stridhan, which she received at the time of her
marriage and could include movable assets such as jewelry, clothes,
utensils or cattle. In some rare cases immovable assets, such as landed
property, were also given as stridhan. Nevertheless, a woman was never
the absolute owner of her stridhan, because, as mentioned before, the
Manusmriti taught that a wife along with her property belongs to her
husband.
These ancient texts never properly defined the term stridhan; its
characteristics were never specified and the succession rule was not
clear. This began to change, however, with the emergence of different
schools of Hindu law.
6. The Puranasare the richest collection of mythology in the world. Most of them attained
their final form around 500 A.D. but they were passed on as an oral tradition since the time of
Krishna (c. 1500 B.C.). There are eighteen major Puranas and a few minor ones. The most
important Puranasare the Vishnu, Siva and Markandaya Purana. They are believed to be written
by Vyasa. All the Puranas belong to the class of Suhrit-Sammitas, or the Friendly Treatises,
while the Vedas are called the Prabhu-Sammitas, or the Commanding Treatises with great
authority.
7. Sudras were the lowest class and mainly served the other three higher classes of the
Varna system, namely the Brahmins (priestly), Kshatriyas (princely) and the Vaisyas
(commercial). They had no particular profession but many historians described them as slaves.
8. The word Varna is derived from the root "NR" to screen, veil, covering, external
appearance-Varna also means color. Varna was used to denote groups having different skin
coloration. The Aryans were fair skinned and the Dravidians black skinned. Apart from the skin
color the four varna's applied specific color marks on their fore head (called chandan or kumkum)
to identity themselves differently (The color difference may also be in their dress.). The brahmin
applied a white chandan mark signifying purity, as his profession was of a priestly or academic
nature. The kshatriya applied a red kumkum mark signifying valor as he belonged to warrior
races. The vaishya wore a yellow kesar or turmeric mark signifying prosperity, as he was a
businessman or trader devoted to creation of wealth. The sudra applied a black bhasma, kasturi
or charcoal mark signifying service as he supported the work of the other three divisions.
But color is only one of the many aspects of the term. Varna also denotes species, kind,
character and nature. Racial, tribal and familial solidarity also had a part to play in the origin of
the Varna system. The divisions may have been made based on religious beliefs, cult practices,
and even eating habits. Above all, there is the theory that the Varnas derived their basis from the
Purushasukta (Rig Veda 10.90) in dividing mankind into four socially separate interdependent
categories and this was incorporated in the Manu Dharmasastra.
JOURNAL OF LAW & RELIGION [Vol. XXIV
B. The Emergence of Different Schools of Hindu Law

According to ancient Hindu mythologies, the earliest texts of
Hindu religion were created by Lord Brahma in the form of four Vedas
(the Rig Veda, Atharva Veda, Sama Veda and Yajur Veda). Ancient
Hindu sages added various Smritis and Srutis (respectively, non-
revealed and revealed texts) to the Vedic literature, 9 many dealing
explicitly with issues of property and women's rights regarding it.'0
While these commentaries on the Smriti and Sruti were being written,
different schools of thought arose in different parts of the Indian
subcontinent, and these schools laid down several rules and principles
for marriage and inheritance. The Mitakhshara and the Dayabhaga
were the most prominent schools, each of them based on a different
interpretation of Yagnavalkya Smriti, which was written by sage
Yagyavalkya and is one of the three main Smritis of ancient India and
the second most important source of Hindu code after Manusmriti. The
Mitakhshara School is based on Sage Vigneswara's interpretation of
Yagnavalkya's text, while the Dayabhaga School derives from Sage
Jimootvahana'scommentary. The rules made by these schools are still
followed as the basic principles for inheritance law in India.
The Mitakhshara School' was followed throughout India, except
the eastern part, and is divided into four sub schools on the basis of
geographic region, namely the Dravida, Maharashtra, Banaras, and
Mithila schools. The Mitakhshara School is distinguished by three
characteristics:
(1) the importance of blood relationship in matters of inheritance;
(2) the restrictions placed on coparceners' share in the joint family
property;' 2 and
(3) the distinction between male and female heirs.
Concerning the second point, the Mitakhshara School claimed that
a coparcener's share in joint family property is not absolute and
constantly fluctuates due to the birth or death of other coparceners.
Coparceners therefore do not have absolute right to transfer their shares.
9. Smriti ("that which is remembered") refers to a specific body of Hindu religious scripture.
Smriti also denotes non-Shruti texts generally, seen as secondary in authority to Shruti.
10. Sruti ("what is heard") is a canon of Hindu sacred texts. They do not date to a particular
period, but span the entire history of Hinduism, beginning with the earliest texts known, with
some late Upanishads reaching down into modem times.
11. One of the prominent commentaries of Smritis, and it is divided into four sub-schools on
the basis of geographic region, namely the Dravida,Maharshtra,Banarasand Mithila schools.
12. See Janaki Nair & Natl. L. Sch. of India U., Women and Law in Colonial India: A Social
History 196 (Kali for Women in collaboration with the Nati. L. Sch. of India U. 1996) (discussing
the Mitahksharagenerally).
663] PROPERTY RIGHTS OFHINDU WOMEN
As for the third point, the Mitakhshara School believed that a woman
could never become a coparcener and the widow of a deceased
coparcener could not enforce partition of her husband's share against his
brothers. Property rights for Hindu women were severely restricted,
then, by this school of interpretation.
The second most prominent school of law after the Mitakhashara,
the Dayabhaga School, was mainly followed in the eastern part of the
country, especially in the provinces of Bengal and Assam, and had no
sub schools. It differs from the Mitakhshara School on principles of
inheritance and the position of women as heirs. According to the
DayabhagaSchool:
(1) the right to inheritance arises from the spiritual offerings to the
deceased ancestors;
(2) the right over Hindu joint family property devolves to the heir
on the death of the father and not by birth, as was maintained by
the Mitakhshara School;
(3) for heirs of joint family property, each share is definite, and
each brother can sell his particular fraction of the share;
(4) if there are no male descendants, a widow has the right 13
to
succeed to her deceased husband's share and enforce partition.
The Dayabhaga School differed considerably; therefore, from the
Mitakhshara School on the question of a woman's standing as property
owner. Still, this more liberal policy had well-defined limits. For
instance, women were not absolute owners of the property inherited
from their male ancestors, because they could sell the property only for
limited legal necessities and not for other reasons. On the death of the
woman who had no sons, such property did not pass to her female heirs
but to the nearest male heir of the deceased male owner and not to the
heirs of the deceased. Another difference between the Mitakhshara and
Dayabhaga schools was the extent to which the Dayabhaga School
divided women into five categories that determined priority in
inheritance cases. These are wife, daughter, mother, father's mother and
father's father's mother.
C. The Developed Concept of Stridhan

The Mitakhshara School did not recognize women's right to inherit
property from her husband's family. Accordingly, a woman could
possess only stridhan, whose technical and legal meanings the
13. See id.

JOURNAL OF LA W & RELIGION [Vol. XXIV
MitakhsharaSchool expanded to include nine types:

(1) gifts and bequests from relations;
(2) gifts and bequests from strangers;
(3) property acquired by self exertion and mechanical arts;
(4) property purchased with stridhan;
(5) property acquired by compromise;
(6) property obtained by adverse possession;
(7) property obtained in lieu of maintenance;
(8) property obtained by inheritance; and
4
(9) share obtained by partition.
However, even though the first seven types were recognized and
established as different forms of stridhan,15 the last two remained
controversial until the early twentieth century.
D. Controversy over the Property Obtained by Inheritance by Woman

The Mitakhshara School considered all these nine types of
succession as Stridhan. But, the Privy Council differed from the ancient
school of thought regarding the characteristics of the inherited property.
It was decided that when the property is inherited by females from
males 6 and also by females from females, 7 it no longer retains the
characteristics of "Stridhan," but becomes women's estate. But the
Bombay school disagrees with the English judgment on the
characteristics of the Stridhan. This school divided inheritance of
property by women into three groups: (a) inheritance of property by
woman from female, (b) inheritance of property by a woman from a
male in whose family the woman in born, such as daughters, sisters,
brothers' daughter, etc., and (c) inheritance of property by a woman
from a male, where the woman in question is introduced to the father's
gotra or lineage by marriage, such as intestate's widow, mother, etc.
The Bombay School certifies that the first two groups of property
qualify the characteristics of Stridhan 8 whereas the third kind of
14. Paras Diwan, Modern Hindu Law Codified and Uncodified 346-347 (10 1h ed., Allahabad
L. Agency 1995).
15. Id.
16. Bhagwandeen v. Maya Baee, II M.I.A. 487 (1867).
17. Sheo Shankar v. Devi Saha, 25 All. 468 (1903).
18. Kaseerbai v. Hunsraj,30 Bom. 431 (1906).
property is not Stridhan but women's estate. 19
E. Controversy over Share Obtained on Partition

Even though the ancient schools differed about the characteristics
of stridhan when discussing property inherited by a woman, almost all
schools of Hindu law unanimously agreed that the share obtained by
partition is not Stridhan but women's estate.2 °
F. From Stridhan to Women's Estate

Thus we can see that with the passage of time the concept of
Stridhan develops into two distinct categories of rights over the
property, the one being full ownership, including the right to alienation
and the other being limited, excluding the right to alienate. The two
leading schools of Hindu thought clearly regarded stridhan as a
women's "own property." But not all stridhan was out of reach of male
claimants. Stridhan was divided into two types: 1) the sauadayika,
which she received as gifts from relatives of both sides (parents and
husband), and which she acquired by self exertion and mechanical arts
during her maidenhood or widowhood, over which she had full rights of
disposal, and 2) the non-sauadayika, 21 which
included gifts from
strangers and property acquired by self-exertion, mechanical art, and so
forth as a married woman, over which she had no right of alienation
without the consent of her husband. Her husband also had the power to
use it. However, upon her death all types of stridhan would pass over to
her own heirs.
This age old confusion of women's limited rights over certain types
of property was finally put to rest by the Privy Council. It coined the
property with limited rights as "women's estate, 22 whereby the female
owner takes it as a limited owner. The two main characteristics which
make women's estate different from Stridhan are (a) she cannot
ordinarily alienate the corpus, and (b) on her death it goes to the next
heir of the last full owner, i.e., the male owner from whom the woman
had inherited. 24 In Janki v. Narayansami,25 the Privy Council aptly
19. Id.
20. DeviPrasadv.Mahadeo, 39 I.A. 121 (1912).
21. Vibha Sirothyia, Student Author, Stridhan And Womans' Estate Under Section 14 of
Hindu Succession Act 1956, www.indlaw.com/publicdata/articles/article189.pdf (accessed Feb.
23, 2009).
22. DeviPrasadv.Mahadeo, 39 I.A. 121 (1912).
23. Diwan, supra n. 13, at 346-348.
24. Biay v. Krishna, 44 I.A. 87 (1907).
observed, "her right is of the nature of right of property, her position is

that of the owner, her powers in that character are, however limited....
So long as she is alive, no one has vested interest in the succession. 26
Other sources help to complete the picture of ancient Hindu
women's property rights. The Dharma Shastra-Sanskrit texts
pertaining to Hindu religious and legal duty-says that the wife of an
absent manager, or the widow of a dead manager, can alienate or
transfer family property belonging to numerous minors who are unable
to enter into contractual relationships in their own persons, especially in
situations that call for maintaining dependents and carrying out the
various obligations of the family. Katyana,27 Smritichandrika, 28
29 3°
Bhavasvamin, and Yagnavalkya Smriti also support this right.3
However, what is clear from the Dharma Shastra is that women were
considered to be managers in cases only of distress and never had the
power to manage property by themselves for their own purposes.
It is also clear that many socio-religious crimes had their roots in
ancient succession laws. A Hindu woman was never recognized as full
owner of any property received by her, especially when it was landed
property. Manu's attitude regarding the inferiority of women extended
even to circumstances in which a woman was the only child. For such
cases, ancient law makers suggested adopting a male baby to look after
parental property, which should never be left with the woman, regardless
of how educated she might have been. This fight with women for
ownership over property gave birth to a number of socio-religious
crimes that were given legal color in the name of protecting family
wealth. Hence, bigamy, remarriage for the male heir, forced sexual
intercourse with another man to have a male child, female infanticide,
and wife abandonment were made widely acceptable, if not legally, then
in the name of religion, for situations in which a woman could not
25. 43 I.A. 207 (1916).

26. However, post independence, Hindu Succession Act (1956), India Code Act No. 30 of
1956, abolished the concept of woman's estate and conferred full rights to women over all types
of property that have been discussed here. The broad discussions of the Hindu Succession Act
(1956) are done below.
27. Katyana was an ancient Hindu legal text writer. See http://www.legalserviceindia.com/
articles/kar.htm (accessed May 19, 2009).
28. SmritiChandrika is a Hindu legal text written to supplement Mitakhshara, the ancient
Hindu text for inheritance. It is more a sort
of digest of ancient texts dealing with inheritance than
a commentary. Devanna Bhatta, Smritichandrika (Vyavaharakanda) (L. Srinivasacharya Pandit
ed., Gov. Oriental Lib. 1914).
29. Bhavasvamin was an ancient Hindu legal text writer.
30. Smriti by Sage Yagnavalka, an ancient legal text writer.
31. Garg Manisha & Nagar Neha, Student Authors, Can Women be Karla?,
http://www.legalserviceindia.com/articles/kar.htm (accessed Feb. 22, 2009).
produce a male heir.
II. THE MEDIEVAL PEPdOD
A. Succession Rights for Hindu Women: Darker than Ever??

The strong shadow of male dominance over the succession rights
of Hindu women became even darker in the medieval period with the
Muslim invasion. 32 The Muslim rulers in this period introduced a new
set of rules from the Shariat33 for the followers of Islam but did not
disturb the personal laws of the Hindu community for marriage or
succession. During this period, stridhan in the form of jewelry and other
movable gifts started losing its implicit meaning of "women's property"
and became a status symbol for matrimonial gifts to the newlywed
couples in the form of Vara dakhshina or dowry.34
The concept of women's estate35 gained favorable recognition in
Hindu society at this time due to socio-cultural reasons. When a woman
received landed property either: 1) by inheritance specially from the
male members of the family such as the husband or the father-in-law or
2) by share obtained by partition of the property, she was made the
owner subject to two limitations-first, she could not ordinarily alienate
the corpus and, second, on her death it devolved upon the next heir of
th32. The Muslim conquest in the Indian subcontinent mainly took place from the 11 h to the
.....
17 centuries, though earlier Muslim conquests made limited inroads into the region, beginning
during the period of the ascendancy of the Rajput Kingdoms in North India, from the 7 th century
onward. V.D. Mahajan, History of Medieval India (S. Chand 2004).
33. The code of law derived from the Qur'an and from the teachings and example of
Mohammed.
34. Originally a woman received gifts from her family during her marriage as a form security
also, but slowly it turned into a compulsion for the bride's family to gift the Stridhan not to the
girl but to the bridegroom, which was termed as Vara (bridegroom) dakhshina (payment) or
payment to the bridegroom for marrying the daughter. This forceful demand of Stridhan remained
an unprotected social evil until the creation of the Dowry Prohibition Act (1961)which defined
Vara Dakhshinaor "dowry" as
any property or valuable security given or agreed to be given either directly or
indirectly-(a) by one party to a marriage to the other party to the marriage; or (b) by the
parents of either party to a marriage or by any other person, to either party to the
marriage or to any other person, at or before any time after the marriage in connection
with the marriage of the said parties but does not include] dower or mahr in the case of
persons to whom the Muslim Personal Law (Shariat)applies.
Dowry Prohibition Act (1961), Act No. 28 of 1961, available at
http://wcd.nic.in/dowryprohibitionact.htm.
35. In the Mitakhsharajurisdiction, including Bombay and the DayabhagaSchool, the legal
commentators fmally dictated that the share obtained in partition is not stridhan in its true sense.
It was given the Colonial legal recognition as "women's estate" in Devi Prasadv. Mahadeo, 39
I.A. 121 (1912).
JOURNAL OFLA W & RELIGION [Vol. XXIV
the last full owner, also known as a reversioner. This was established by
the Privy Council6
in the case of Bioy Gopal Mukherji v. Krishna
Mahishi Debi1
The customary laws, however, gave three options in which a
woman could alienate her estate by herself:
1. legal necessity (that is, for her own need and for the need of the
dependants of the last owner);
2. for the benefit of estate; and
3. for the discharge of indispensable duties (marriage of daughters,
funeral rites of her husband, his shraddha and gifts to Brahmans
for the salvation of his soul; that is, she can alienate her estate for
the spiritual benefit of the last owner, but not for her own spiritual
benefit).37
In other words, her position was reduced to that of a mere caretaker of
the property for the sake of male members of the family.
This practice of devolving only limited ownership on the women
became more common during the medieval period to protect ancestral
property from the grab of the Muslim rulers in cases in which full
owners died intestate. Young widows were used as a mode to transfer
the succession rights to the nearest male member of the husband's
family. Immediately after her husband's death, a widow would be
declared the limited owner of her deceased husband's property. She was
allowed to wear only white attire and no ornament. Her jewelry would
be forcefully taken by the male members of her immediate family.
Then, if she was young, she would be encouraged or, in majority of
cases, forced to submit to the ritual of bride burning or sati.38 Older
women would be left to beg in some Hindu holy place. The practice of
sati still continues in many parts of India to unethically gain women's
property.
36. 34 I.A. 87 (1907).

37. Sirothyia, supra n. 20, at 4.
38. Sati is the practice of burning the Hindu widows alive with their husbands. This practice
became more common during the Muslim rule in northern India to protect the chastity of Hindu
women from the Muslims. But this heinous practice became more in vogue in northern, western
and eastern India in the 17 th and 1 8th centuries, mainly to kill the widows so that they could not
claim the property of their deceased husband. By the end of 18 ' century, the British rulers in
India, along with the social reformers like Raja Ram Mohan Roy, made strict rules preventing the
practice of Sati. In modem India the practice of Sati is considered to be a criminal act and
punishable by both the Sati Prevention Act and the Indian Penal code, along with the Criminal
Procedure Act. But unfortunately still in interior parts of Northern India, the ritual of Sati is
practiced, even though very rarely. Arvind Sharma, Sati: Historical and Phenomenological
Essays (Motilal Banarsidass 1988).
The late seventeenth century saw the eruption of another socio-

religious crime-that of dowry,39 which made stridhanpart of the gift to
the bridegroom. For centuries, stridhan was demanded by prospective
bridegrooms as part of the dowry given to them. This was unethical,
according to the ancient srutikaras (or authors of the shruti). Colonial
rule made the situation little better. By creating laws that followed
British models for securing succession rights for women, these laws
could not help Hindu women, who almost by definition were not as rich
as their British counterparts. Hence Hindu women continued to be
tortured for being born a daughter who could demand a share of property
and family wealth in the name of stridhan, for being a young bride
whose stridhan was considered an insufficient contribution to her
husband's dowry, and for being a widow who could demand her
husband's share in the family property and her own stridhan.
III. THE MODERN PERIOD
A. Stridhan, Sati and Dowry

The biggest socio-legal problem which the colonial rulers faced in
India with their Hindu "subjects" was the Hindu religious practices and
social customs, all of which generated from one issue, the deprivation of
women from their legitimate rights. When the British invaded India, the
Hindu socio-religious-cultural situation reached its nadir. The practice
of demanding stridhan as part of dowry became entrenched. This
encouraged female infanticide, marrying young girls with dying men
and the heinous practice of bride burning. Furthermore, even though the
Mughal emperors tried to stop the practice of bride burning, or sati, the
barbaric practice continued to be practiced into the eighteenth and
nineteenth centuries. Persuaded by social reformers such as Raja Ram
Mohan Roy and Lord William Bentinck, for the first time in Indian
history the practice was abolished by the Sati Regulation, XVII of 1827.
Sati became a punishable act when the Indian Penal Code of 1860
established that such practice amounts to murder and homicide. These
acts paved the way for ensuring Hindu women's lawful right over their
property. But the question of dowry remained unsolved and continued
to be interpreted as part of stridhan.
39. Srimati Basu, Dowry and Inheritance: Issues in Contemporary Indian Feminism 318 (Zed
Books 2005).
B. Colonial Laws: Hindu Women's Right to Property Act (1937)

Hindu customary laws and rules continued to be practiced well
after the British invaded the country. Even while they introduced
uniform laws governing other features of social life, such as crime and
commerce in the eighteenth and nineteenth centuries, British colonial
rulers recognized distinct Hindu family laws for different religious
groups and other cultural groups. 40 The inheritance laws thus continued
to be governed by the Mitakhshara and Dayabhaga laws till the
beginning of the twentieth century.
The colonial rulers' first attempt to make a uniform law of
succession for Hindu women was the Hindu Women's Right to Property
Act (1937), which emphasized women's estates. This Act was the first
of its kind to put an end to the controversial debate over the
characteristics of stridhan,and it established Hindu women's rights over
landed properties inherited from male owners, especially from husbands,
even though to a limited extent.
The 1937 Act recognized three types of widows: 1) intestate man's
widow; 2) widow of a pre-deceased son; and 3) widow of a pre-deceased
grandson who is the son of a predeceased father. The widows were
given a share in the undivided interest of a Mitakhshara coparcener.4
Much was made of the Hindu Women's Right to Property Act as
an instrument for improving the treatment of Hindu women, especially
for young widows. Pressure for this type of social reformation came at
the instigation of European as well as Indian social reformers stretching
back to Raja Ram Mohan Roy4 2 Despite this reformist agenda, the
ancient Shastric laws survived intact. Though the 1937 Act established
limited rights for Hindu women in their intestate husband's property, its
biggest flaw was that it could never guarantee any rights to women
successors when the deceased had disposed of his property by will.
Neither did the Act mention anything about the shares of women in
agricultural lands.
40. Narendra Subramaniam, Family Law and Cultural Pluralism, in Encyclopedia of India
55-58 (Stanley Wolpert ed., Charles Scribners Sons: Thomson Gale 2006).
41. Diwan, supra n. 13, at 352.
42. Raja Ram Mohun Roy (Aug. 14, 1774-Sept. 27, 1833) was best known for his efforts to
abolish the practice of sati, the corrupted Hindu funeral practice in which the widow was
compelled to sacrificed herself on her husband's funeral pyre. It was he who first introduced the
word "Hinduism" (or "Hindooism") into the English language in 1816. For his diverse
contributions to society, Raja Ram Mohan Roy is regarded as one of the most important figures in
the Bengal Renaissance and is hailed as "the father of modem India."
C. Conversion of Women's Estate to Stridhan

Hindu women's limited interest in landed property continued even
after the independence of India (1947). During the Constitutive
Assembly of India (legislative) debates of 1948, Dr. B.R. Ambedkar
pointed out the disadvantages in the succession laws for Hindu women
and made changes in the existing laws in the new Hindu Code Bill.
These changes are as follows:
[T]he widow, the daughter, the widow of a pre-deceased son, all
are given the same rank as the son in the matter of inheritance.
[T]he daughter also is given a share in her father's property; her
share is prescribed as half of that of the son....
[T]he number of female heirs recognized now [should be made]
much larger than under either the Mitakshara or the
Dayabhaga....
[U]nder the old law, whether the Mitakshara or the Dayabhaga,a
discrimination was made among female heirs, as to whether a
particular female was rich or poor in circumstances at the death of
the testator, whether she was married or unmarried, or whether she
was with issue or without issue. All these consideration which led
to discrimination in the female heirs are now abolished by this
Bill. A woman who has a right to inherit gets it by reason of the
fact that she is declared to be an heir irrespective of any other
considerations....
Under the Dayabhaga the father succeeds before in preference to
the mother; under the present Bill the position is altered so that the
mother comes before the father. ...
[I]t consolidates the different categories of stridhaninto one single
category of property and lays down a uniform rule of succession;
there is no variety of heirs to the stridhan in accordance with the
different categories of the stridhan-allstridhan is one and there
is one rule of succession.
[T]he son also is now given a right to inherit the stridhanand he is
given half the share which the daughter takes. ... [By this] the
Bill seeks to maintain an equality of position between the son and
the daughter ....
The Bill ... converts this limited [women's] estate into an
absolute estate just as the male when he inherits gets an absolute
estate in the property that he inherits and ....
676 JOURNAL OF LA W & RELIGION [Vol. XXIV
[The Bill] abolishes the right of the reversioners to claim the

property after the widow. 3
The Hindu Code Bill was therefore the first step toward abolishing
the idea of limited estate for women and converting it into a full estate.
D. The Modernized Concept of Stridhan:

The Hindu Succession Act (1956)
Based on the Hindu Code Bill, a uniform succession law, the
Hindu Succession Act (1956), was adopted for Hindus in free India and
finally gave a death blow to the ancient practice of preventing women
from inheriting landed property from male heirs. With this Act, the
concept of women's estate was finally discarded and the meaning of
stridhan expanded by including landed property along with other
movable and immovable properties. Women's estate was now
converted into stridhan by Section 14 of the legislation, which said that
any property a Hindu woman receives after June 17, 1956, will be her
absolute property.
According to the Act, "property" includes both movable and
immovable property that she receives as gift, or through maintenance or
inheritance, or that she acquires by her own skill or by purchase,
prescription, partition etc.44 The definition of the property enumerated
in Subsection 1 of Section 14 of the Act includes all the types of
property that were enumerated in the ancient text Vo'naneshwar, in
which stridhan was shown to be of nine types. But even the Hindu
Succession Act did not give women full ownership over property, as
Subsection 2 of Section 14 retains the power of any person or the court
to give limited estate to a woman in the same manner as a limited estate
may be given to any other person.4 5
Thus, Section 14 has had a retrospective or backward-looking
glance.46 It converts an existing women's estate into stridhan or
absolute estate only when two conditions are fulfilled: 1) ownership of
the property must vest in her and it is not limited ownership; and 2) she
must be in possession of the estate when the Act came into force.4 7 The
43. B.R Ambedkar, Law Minister of India, Remarks on the Hindu Code Bill 599 (C.A.
(Leg.)D., Vol. IV, 9 th April 1948, pp. 3628-3633) (available at http://wxvw.ambedkar.
org/_ambcd/) (To locate Remarks on site: 1) click on Debates/Interviews, 2) click on "8." On the
Hindu code Bill: Part 1," 3) scroll to Section I, (r41Hindu Code, 6-11) (The quoted material is
extracted and reformatted for ease of understanding.).
44. Hindu Succession Act § 14(1) (1956).
45. Id. at § 14(2) (discussing property given with limitations).
46. Diwan, supra n. 13, at 354.
47. Deenadayal v. Raju Ram, 1970 S.C.R. 1019 (1970) (Hedge, J.).
Act also keeps silence in cases of a woman's deceased husband's

property. Except for the right of maintenance, the property cannot
become her absolute property.4 8
E. Critique of Hindu Succession Act 1956

Even though Section 14 of the Hindu Succession Act (1956),
converted women's estate to stridhan, it was not flawless. The issue of
female inheritance was questioned in case of inheritance with limitation
clause. There were several other clauses which continued the age old
discrimination of male and female heirs.
The Act of 1956 is meant for unmarried daughters to claim
inheritance of the property.
Under Section 15 of the Hindu Succession Act (1956), the
daughter-in-law inherits only when she is a widow. Hence she can not
inherit her due share in her father-in-law's property when her husband is
alive. 49 This decision was arrived at by the Courts while discussing the
applicability of Section 15 (b), which states
any property inherited by a female Hindu from her husband or
from her father-in-law shall devolve in the absence of any son or
daughter of the deceased (including the children of any
predeceased son or daughter) not upon other heirs referred to in
subsection (1) in the order specified therein, but upon the heirs of
the husband.
The Court had to clarify the wordings of Section 15 (b) for the purpose
of finding out the right heir of the property of widowed woman who
have inherited her share from her father in law. In the case of Kailash v.
Kishan,5 ° the court thus decided that there is no flaw in the factual
operation of the Section. For the purpose of the widow's heir in
question, the inherited property from her father-in-law would be
devolved upon the heirs of her husband after her death. In case she
remarries and her second husband also dies and she inherits property
from her father-in-law from the second marriage, the said inherited
property from the second marriage would be devolved upon the heirs of
the second husband and not on the heirs of the first marriage.
Another big difficulty the women had was the partition of the
dwelling house. Even though Section 14 mentions that stridhan
property includes property inherited by way of partition, Section 23,
48. SurajMal v. Babulal, 1985 Del. 95 (1985).

49. Kailash v. Kishan, Pat 154.
50. Id.
while discussing about the partition of the dwelling house, clearly

discriminates the women heirs.
Hindu law gives special position to the dwelling house, which as
per the smritikaras should not be partitioned. Male heirs (sons and
grandsons) and not the female heirs were considered the only successors
of the dwelling house. Hence the problem of male and female
succession rights could not arise the way it may arise now.5"
Section 23 of the Hindu Succession Act states that the right of
female heirs to claim partition of the dwelling house shall not arise until
the male heirs choose to divide their respective shares therein.
The above-mentioned Act, under Section 23, differentiates between
married, unmarried and widowed daughters' ability to claim right of
residence. It does not give the right to claim partition, but gives a right
of residence only if the daughter either is unmarried, has been deserted
or has been separated from her husband. 2
Married daughters do not have either right to claim partition or
right to residence.
A married daughter who has left her husband of her own accord
and is not deserted by her husband has no right to reside in the dwelling
house.53
When a married daughter becomes a widow or has been deserted
by her husband she can claim only residential rights in the dwelling
house.
The restriction on the partition is imposed only on the female heirs.
If a male heir chooses to partition the dwelling house, the female heirs
cannot prevent him, but they will be entitled to their share.54
Thus it could be seen that the Hindu Succession Act (1956)
excludes married daughters from the right of residence in the dwelling
house as well as a share of partition. Here again the controversy for
women's succession begins. Even though this Act abolished the
difference of stridhan and women's estate, the issue of partition and
right of residence in the dwelling house made the age old practice of
discriminating against female children more exposed.
F. Efforts to End the Inequality

Constant researches in the field of succession rights of Hindu
51. Id.
52. Sripatinathv. IraRam, 1992 Cal. 60 (1992).
53. Kalamma v. Veeramma, 1992 Kant. 362 (1992).
54. Usha v. Smriti, 1988 Cal. 115 (1988).
women in India made some of the state governments develop unbiased

succession rules. The Hindu Succession (Andhra Pradesh) Amendment
Act (1985) made a remarkable development. This law stated that the
rights of the daughter are equal to that of the son, in any circumstances.
This law found the Mitaksharasystem is in violation of the fundamental
right of equality. The States of Tamil Nadu, Maharashtra and Kerala
have also amended the law by including women as members of the
coparceners. But unfortunately this law is not a universal law. Except5
the southern states who were already following the Marumakkattayam"
and Aliyasantana56 laws, other states of India refused to deviate from the
patriarchal tradition in case of property rights. There are numerous laws
that say that there should be no discrimination between the sexes, but in
reality none are effective enough to actually bring about a revolution; a
55.
In the Marumakkattayam law, which prevailed in Kerala wherein the families were joint
families, a household consisted of the mother and her children with joint rights in
property. The lineage was traced through the female line. Daughters and their children
were thus an integral part of the household and of the property ownership as the family
were matrilineal. It is applicable to a considerable section of people in Travancore-
Cochin and districts of Malabar and South Kanara. It is followed by non Brahmin
castes, Nairs and Thyas, other cognate castes and Payyannur Graman of North Malabar.
Under the Marumakkattayam system of inheritance, descent and succession to the
property was traced through females. The mother formed the stock of descent and
kinship as well as the rights to the property was traced through females and not through
males. Marumakkattayam literarily meant inheritance by sisters' children as opposed to
sons and daughters. Word "Marumakkal" in Malayalam means nephews and nieces. It
is generally agreed by scholars that matrilineal system was the direct result of some
system of polyandry that existed among ancient races. Descent through females
indicated uncertain paternity. It has been unanimously agreed by the historians that the
origin of this system is traceable to polyandry prevalent in ancient Malabar.
S.J. Prasanth & Shastri Shivani, Student Authors, Should Women be Given CoparcenaryRights?,
http:// www.manupatra.com/PopUp/PopOpenArticle.aspx?ID=afd I8f30-7d79-477e-827 I-
44b5ed62f8dl &a=08518b77-12a6-4d60-8fSe-08e494e015d6 (accessed Feb. 23, 2009)
(subscription required for access).
56.
This system is applicable in South Kanara. The Bunts, the Billawas and the non Priestly
class among the Jainas in Kanara are governed by this system. This tradition came into
practice and was followed by every one in the Bunts' community with the belief that it
was an ancient practice. Bunts still believe that this tradition was inherited from a King
Bhutala Pandya who ruled Tulunaadu and introduced this system in 77 A.D. The
Aliyasantana system is the system of inheritance through female line which gives
property rights to the lady and all rights are centralized on her, example: Some of the
surnames of Bunts come from the mother side; the name of the mother's ancestral house
normally became the prefix or suffix of one's name. This may be because when men
went to the battlefield, the wife took the whole responsibility of the family and became
the decision-maker. So in the Aliyasantana system more importance is given to the
mother's side of the family. More respect is given to maternal uncles than to the paternal
uncles.
Doshi Manita, Student Author, The Marumakkattayam and Aliyasantana System,
http://www.legalserviceindia.com/articles/mds.htm (accessed Feb. 23, 2009).
change in society. The main hurdle in achieving gender equalities in

case of succession amongst the Hindus remains the difference in the two
schools of law which govern different parts of the country.
The 17 4 th Law Commission took up the task to end this thousands-
year-old custom alienating woman from property inheritance. It found
that social justice demands that a woman should be treated equally both
in the economic and the social sphere. "The exclusion of daughters
from participating in coparcenary property ownership merely by reason
of their sex is unjust. 5 7 The Commission took into consideration the
changes carried out by way of State enactments in the concept of
Mitakshara coparcenery property in the five States in India, namely,
Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka. The
Commission felt that further reform of the Mitakshara Law of
Coparcenary is needed to provide equal distribution of property both to
men and women. The law commission took a revolutionary step by
recommending changes in the ancient succession laws of Mitakhshara
and Dayabhaga and thereby amending the existing Hindu Succession
Act (1956) to give equal share to Hindu women in their ancestral
properties.
G. Dowry and Stridhan

While the Hindu Succession Act (1956) assured Hindu women
their succession rights, the enactment of Dowry Prohibition Act (1961)
addressed the problem of forceful demand of stridhan in name of dowry
and made it a penal offense.5 8 The Act defined dowry as any property or
valuable security given or agreed to be given at the time of marriage, or
before the marriage or at any time after the marriage by one party to the
other party in the marriage or by the parents of either party to a marriage
or by any other person to either party of the marriage or to any person. 9
However, Section 2 of the Act draws a thin line between stridhan and
dowry and states that when presents are gifted to the bride and bride
groom respectively and such presents are not demanded and entered in
the list as has been provided by The Dowry Prohibition (Maintenance of
Lists of Presents to the Bride and Bridegroom) Rules (1985) and signed
57. Law Commission of India 1740"Report, Property Rights of Women: Proposed Reforms
under the Hindu Law, D.O. No.6(3)(59)/99-LC(LS) (May 5, 2000), available at
http://www.lawcommissiono findia.nic.in/kerala.htm (emphasis added).
58. Sec. 3 of the Dowry Prohibition Act makes taking, giving or abeting the act of dowry a
penal act with imprisonment for five years and a fine of fifty thousand rupees. The Dowry
Prohibition Act § 3 (1961), http:wcd.nic.in/dowryprohibitionact.htm (accessed Jan. 5, 2009).
59. Id. at § 2.
by the bride and bride groom respectively, it will not fall under the term
"dowry."
But could these "gifts" received by the bride at the time of
marriage be termed as stridhan? The Supreme Court of India finally
settled this issue in the case of PrativaRani v. Suraj Kumar6 ° and stated
that "the stridhan property of a married woman cannot acquire the
character of a joint property of both the spouses as soon as she enters
her matrimonialhome."
The court further held that:
The position of stridhan of a Hindu married woman's property
during coverture is absolutely clear and unambiguous; she is the
absolute owner of such property and can deal with it in any
manner she likes. She may spend the whole of it or give it away at
her own pleasure by gift or will without any reference to her
husband The entrustment to the husband of the stridhanproperty
is just like something which the wife keeps in a bank and can
withdraw any amount when ever she likes without any hitch or
hindrance. Ordinarily, the husband has no right or interest in it
with the sole exception that in times of extreme distress, as in
famine, illness or the like, the husband can utilize it but he is
morally bound to restore it or its value when he is able to do so.
This right is purely personal to the husband and the property so
received by him in marriage cannot be proceeded against even in
execution of a decreefor debt.6'
This revolutionary judgment finely defined stridhan which were
immovable and received as gifts by the Hindu women and thereby
sealed any controversy in regard to its absolute ownership by women.
The further amendments made to the succession laws upheld women's
position as at par with their male counterparts in dealing with succession
and property matters.
H. The Hindu Succession (Amendment) Act 2005

The Hindu Succession Act (amended) 2005, gave Hindu women
right to become a coparcener in the ancestral property like their male
counterparts. Under Section 6 of the Hindu Succession (Amended) Act
(2005) daughters get equal rights of the ancestral properties. Hence it
could be seen that:
The daughter of a coparcener cell by birth becomes a coparcener in
her own right in the same manner as the son;
60. 1985 S.C.R. 628.

61. PrativaRani v. Suraj, Kumar 1985 S.C.R. 628 (emphasis in original).
The daughter has the same rights in the coparcenery property as

she would have had if she had been a son;
The daughter shall be subject to the same liability in the said
coparcenery property as that of a son; and any reference to a Hindu
Mitakshara coparceners shall be deemed to include a reference to a
daughter of a coparcener;
The daughter is allotted the same share as is allotted to a son;
The share of the pre-deceased son or a pre-deceased daughter shall
be allotted to the surviving child of such pre-deceased son or of
such pre-deceased daughter;
The share of the pre-deceased child of a pre-deceased son or of a
pre-deceased daughter shall be allotted to the child of such pre-
deceased child of the pre-deceased son or a pre-deceased
daughter.62
The age-old tradition of investing the whole share of the property
of a Hindu who died intestate to his male heirs only has come to an end
ultimately. By the New Succession law, the female heirs became
equally eligible to inherit the equal share of the property as their male
counterparts. In other words the effect of the Hindu Succession Act
(2005) is two-fold:
Women became active members of the coparcenery property and
enjoyed the right of partition of the ancestral dwelling house. In
other words, they became the Karta, which was limited to the male
heirs only before the promulgation of the new Act.
Women became entitled to enjoy the right to property fully, no
matter whether she inherits the property from her parents or her in
laws.
The Hindu Succession (Amended) Act 2005 has brought a
revolutionary change in the Hindu succession law by making the women
Karta 63 of the joint family property. Women therefore can manage the
property as the male heirs were doing since ages. But historically, such
power of women is not new. The Dharma Shastra says that
alienation can be done by the wife of an absent, or the widow of a
dead manager, of family property belonging to numerous minors,
62. Subhamoy Das, Hindu Succession (Amendment) Act (2005): Equalityfor Women (Sept.
10, 2005), http://hinduism.about.com/od/history/a/successionact.htm (accessed May 22, 2009).
63. The word Karta denotes Lord in Sanskrit. In ancient Hindu codes the word Karta has
been used to depict the main owner or the Lord of the property who is usually the male
descendant. The modem Hindu Succession Laws in India also use the word to denote the main
owner of the property.
unable to enter into contractual relationships in their own persons,

yet reasonable for maintaining
64 dependants and carrying the various
burdens of the family.
This position
is further supported by Katyana, Smritichandrika, Bhavasvamin
and Yagnavalyka Smriti. Some of the Sanskrit text says-
"sishyantevasi-dasa-stri-vaiyavrittyakarais ca yat Kutumbahetor
ucchinam vodhavyam tat Kutumbina" ["The manager (or
householder, actual or eventual) is liable to accept (or admit) all
alienations made for the purposes of the Family by a pupil,
apprentice, slave, wife, agent or bailiff']. Narada says-"Na ca
bharya-kritam rinam kathancit patyur abhavet Apat kritad rite,
pumsam kutumbartho hi vistarah" ["A debt contracted by his wife
never binds the husband, except that incurred in a time of distress:
expenses for the benefit of the family fall upon males"].65
Women were considered as just managers in case of distress and never
had the power to manage the property by themselves for their own
purposes. By the amended Act women were elevated to the position of
full property owners.
DISCUSSION
Since the inception of the concept of stridhan, the characteristics of

the controversial part of the stridhan, which are acquired by either
inheritance or by share, and the legality of such property remained
controversial. As mentioned earlier, according to Yagnavalyka "[w]hat
was given to a woman by [her] father, mother, her husband or her
brother or received by her at nuptial fire or presented on her super
session and the like is denominated women's property" (Ya, II, 143).66
Vijnaneshwara interpreted the original version of Yajnavalkya's
commentary and interpreted the "and the like" as property including
inherited property and out of share or purchase. He was the first among
the ancient law givers to interpret stridhan to a broader aspect to include
property acquired by inheritance and by share or purchase. But other
smritikaras67 opposed such idea and, finally, Manusmriti, which is
considered as the first and the main source of Hindu law, dictated that
women were unable to own such property as they are inferior to men.
64. Garg Manisha & Nagar Neha, Student Authors, Can Women be Karta?,
ww.legalserviceindia.com/articles/kar.htm (accessed Oct. 19, 2008).
65. Id.
66. Diwan, supra n. 13, at 345 n. 2.
67. The lawmakers.
JOURNAL OFLA W & RELIGION [Vol. XXIV
The two schools of Hindu law, namely the Mitakhshara and the
Dayabhagaschools, upheld succession laws of Manusmriti and women
remained as secondary owners of the landed property until the inception
of Hindu Women's Right to Property Act (1937). By the promulgation
of the this Act, the colonial rulers in India in the eighteenth and
nineteenth century took the first step to secure a married woman's right
to property, to a limited extent. Property acquired by inheritance or by
share or partition was named as women's estate and wives of Hindu men
or the widows of Hindus got the right to reap the benefit of the property
even though they were not allowed to alienate the property. The rigid
Hindu society and customary rules suppressed women for a long time.
Hindu Women's Right to Property Act (1937) was followed by the
Hindu Code Bill on the eve of independence of India and then finally by
the Hindu Succession Act (1956) whereby the modem law makers
abolished the concept of women's estate and included such property as
stridhan.
Thereby the modem Hindu succession laws came out of the rigid
rules of male dominated succession rules of Manusmriti and adopted
Vijnaneshwara'sinterpretation of the extended concept of stridhan. But
even though the modem Hindu succession laws gave a secured position
to the Hindu wives and widows over the property of their husband or the
property belonging to their in-laws in case of a predeceased son's
widow, the question of unmarried girls' right to partition of the dwelling
house or the right of residency of the married daughter in the ancestral
house remained unanswered. It was nearly fifty years after the inception
of the Hindu Succession Act (1956) that these questions were solved in
the Hindu Succession (Amendment) Act (2005). The ancient concept of
stridhan included nine types of property, namely,
i) gifts and bequests from relations,
ii) gifts and bequests from strangers,
iii) property acquired by self exertion and mechanical arts,
iv) property purchased with stridhan,
v) property acquired by compromise,
vi) property obtained by adverse possession,
vii) property obtained in lieu of maintenance,
viii) property obtained by inheritance and
ix) share obtained by partition, which were finally recognized by
the modem legislation; and women, whether married or unmarried,
were given the equal right to own property as their male counter
parts.
Even after the inception of the new Act in 2005, discrimination of
women toward succession has not been fully wiped out. The reasons are
both sociological and historical in nature, namely:
Hindu orthodox families discriminate against female children from
birth in education, health and hygiene matters. Hence, mostly girls
remain oblivious of their basic rights.
Even though laws are made to prevent child marriages, such acts
still prevail in many villages of India. Once a girl is married as a child,
she never returns to ask for the share of her ancestral property, nor are
such demands entertained by her parental family. The root cause for this
is she will introduce a new member to the coparcenery property namely,
her husband.
Women are considered elements to bring more property to the in-
laws' family by way of dowry. The language of the Dowry Prohibition
Act (1961) gives enough scope to convert stridhan into dowry in
camouflaged ways.
The new Succession Act (2005) gives women rights over their
parental property. Possibilities of dowry harassment increase as the
women may be pestered to demand family property not for themselves
but because of the greed of their in-laws.
The new Law may tempt the in-laws to practice the heinous custom
of bride burning or Sati in order to remove the women from the list of
legal successors of the landed property.
The new law makes women eligible for the position of Karta of
joint family property. But many Hindu families where women are
severely discriminated against may not allow women to use the new law.
The question arises when a Hindu daughter marries a person
belonging to another faith and converts to the said religion, whether she
would have the same rights of partition, succession of ancestral property,
as she would have before such marriage.
SUGGESTIONS AND CONCLUSION
Promulgation of new legislative acts will have no effect if they are

not properly implemented. The ancient texts of the Hindu religion
mention that women can own property, but shun the responsibility of
women. Ironically, Hindu rituals and practices of worshipping the
Shaktl6 8 were never honored in real life. Women are considered outcast.
68. Sakti means the ultimate power. The Ancient Hindu mythology describes Sakti as a
The modem concept of Hinduism has to be expanded and broadened to

inculcate the laws relating to women in the society. The authors feel
succession rights and right to own property of the Hindu women would
be stronger if the following suggestions are considered:
General awareness should be created among the women about their
rights from the grassroots level.
The Hindu Succession Act should include a separate provision for
prevention of dowry harassment. It should be mentioned that the
stridhanor the property of women would be solely her own property and
any kind of forceful recapture of the property which belongs to the bride
would make such ownership null and void, and it would be considered a
penal act.
The Dowry Prohibition Act should be amended to give a clear
meaning of Stridhan.
India needs moral policing to strengthen the human rights situation
for women. Often the bride's parents encourage the inhuman torture of
their daughter indirectly by not complaining about dowry harassment to
the police. They accept this as a curse of bearing a daughter.
The Hindu religion and society can boast of having the oldest code
in the world defining property rights for both men and women. But at
the same time, continuous research is needed to upgrade the women's
position as property owners. The ancient law and codes can never
dictate the modem woman's position in the name of religion.
Legal literacy camps for women belonging to all faiths must be
encouraged by the government.
The Vedic texts have referred to married women as Ardhangin6 9 of
their husband. A broader look at the word Ardhangini would show that
women are not only the "other half' of their husbands physically or
mentally, but it also depicts the sense of equality among husband and
wife and equal rights of the Hindu married women over their husband's
interests. The age-old confusion over the concept of the stridhan and
legal position of women were finally settled to a greater extent by the
Hindu Succession (Amended) Act (2005). It has taken nearly five
thousand years to break the myth created by the ancient text Manusmriti,
that Hindu women are dependant on their father as a maiden, dependant
on their husband as a wife and dependent on their son as a mother.
Constant evaluation of the legal principles and interpretation of texts
finally made a woman a right holder equal to her male counterpart. She
female goddess in the forms of Durga,Kali and Chandi.

69. Ardhangini means the other half. In the Sanskrit language it denotes wife.
663] PROPERTY RIGHTS OF HINDU WOMEN 687
can now demand the right over ancestral property when she is unmarried
or even when she is married; as a wife she has equal rights over her
husband's property and she can have a safer old age with her acquired
property out of partition, inheritance or share.
India (Part 2)
WOMEN'S INHERITANCE ACCORDING
TO THE 2005 AMENDED HINDU
SUCCESSION ACT
Florence Laroche-Gisserot*
Rsumb
Le Hindu Succession Act de 1956 avait fait un pas important vers l'6galit6
gargons-filles mais n'avait pas t6 jusqu'au bout de celle-ci. L'amendement de 2005
y remedie totalement: la 'joint family' de I'6cole Mithaksara est remod616e et les
filles sont d6sormais d~s leur naissance partenaires comme les fils. La r6gle est
d'application imm6diate, mime si la fille est deja maribe. Cette mesure s'imposait
mais va rendre les liquidations successorales encore plus complexes et
probablement acc6lerer le d6clin des "joint families". L'autre mesure essentielle
61imine une controverse issue d'une r6daction maladroite de l'Hindu Succession
Act et qui conduisait A douter que ce texte fut applicable A la terre agricole.
L'ambiguit6, largement exploit6e dans le nord du pays au detriment des femmes,
cesse donc. Il reste bien sur A appliquer les nouvelles regles; celles de 1956 ne le
sont souvent pas encore ce qui g6nere des doutes.
I INTRODUCTION
The ancient traditional Hindu succession system was certainly not

woman-friendly or daughter-friendly.1 Sons, grandsons, great-grandsons were
granted the whole heirloom and in case of no male heir even the widow
prevailed over the daughter. Naturally the daughters owned some property, the
so-called Stridhana, a tough and unclear question in ancient Hindu law,2 but
basically it consisted of presents given by parents or relatives on special
occasions such as marriage; usually these consisted only of movables such as
items of jewellery and clothes that would be passed on, after death, to
* Professor, Paris-Evry University, France.

Only the Mithaksara school will be analysed in this chapter as it prevails in most areas about
the Hindu system: D Annoussamy Le droit indien en marche (Soci6t6 de 16gislation compar6e,
Paris, 2001) 285; SA Desai Hindu law (Butterworths, New Delhi, 2001) esp vol 1and vol 2, 277;
R Tripathir Handbook on Hindu law (Sagar Law House, Allahabad, 2003) ch 2; Mayne's
revised by Justice Alladi Kuppuswani Hindu law and usage (Bharat Law House, New Delhi,
2001) 1048.
2 PC Jain 'Women's property rights under traditional Hindu law and the Hindu Succession
Act 1956; some observations' (2003) 45 Journalof the Indian Law Institute 509.
122 The InternationalSurvey of Family Law
daughters or daughters-in-law. 3 If a woman (a widow, for instance) had

inherited land or other immovables, such property had to be reverted to the
heirs of the deceased, not to her own heirs. This was corrected very little by
testamentary provisions as drawing up a will was not part of the Indian
custom. 4
Things were made worse by the fact that in India the bulk of property is not
held by individuals but by joint families (coparcenaries) as the ancestors' assets.
Typically, in a joint family, the coparceners were all the males descended from a
common ancestor. In no case could a woman be a coparcener, even though she
worked as hard as everyone else for the community. It is well known that joint
families are close clusters: even in the case of an outside job, pay cheques are
handed over to the head of the family and money is given back according to
one's needs. However, since 1930, especially if they have secured high level jobs,
as a result of their qualifications, degrees and training, coparceners may now
have separate assets; what is bought with this extra money remains personal.
Every coparcener is entitled to ask for partition (they cannot sell their share).
But usually partitions happen only when, due to too many coparceners, the
whole thing is unmanageable; the joint property is split between brothers and
they start new joint families with their own descendants. This is how, as
scholars pointed out, in a joint family, devolution takes place through
survivorship (birth and death) as one never knows how many partners will
remain alive in the event of partition: if your brother has twin boys, your share
decreases; if your uncle dies, your share increases.
In 1937 an important Act was passed which entitled widows of coparceners to

inherit from their husbands but it was made clear that it was mainly for
maintenance purposes, hence a life property with a limited right to interfere in
the management of the common assets. Things changed with the Hindu
Succession Act 1956 (HSA): 5 in relation to individual assets daughters were
entitled to equal shares as sons and for joint assets a kind of compromise was
set up that did not make female issue coparceners but provided some
compensation for them as heirs. However, this specific persistent gender
inequality turned out all the more controversial as most Central and Southern
States enacted amendments to HSA making daughters full coparceners.
If not grabbed or pledged by in-laws; on dowry issues see W Menski (ed) South Asians and the
dowry problem (Trentham Books, London, 1998) 237; Laroche-Gisserot 'De la compensation
matrimoniale A la dot dans le mariage indien moderne' (2006) Les Annales (Aparaitre n 3).
4 D Annoussamy Le droit indien en marche (Societ6 de l6gislation compar6e, Paris, 2001) 292.
The HSA applies to Hindus, Sikhs, JaIns and Buddhists (about 86 per cent of India's
population); it has special provisions for Hindu matrilineal communities customarily ruled by
other systems; the Christians are ruled either according to their residence (Goa: Portuguese
Civil Code, Cochin, Travancore: Cochin Christian Succession Act) or by the 1925 India
Succession Act (as are the Parsis); the Muslim communities are ruled by the Sharia. A few
gender differences remain inside the HSA: for instance, the mother is first class heir of a son
and not of a daughter; if a Hindu female dies with no children or husband, assets go to the
husband's heirs except those inherited from parents which go back to her father.
India (Part 2) 123
Nevertheless, on the contrary, in Northern States a strong attempt was made to

remove, through court orders, agricultural land from the HSA jurisdiction and
get back to gender-biased state laws.
Eventually the central authorities made it quite clear that equality should
prevail at least regarding joint families and invited every reluctant state to join
the central-southern block and amend the HSA on a state level. As nothing
happened, the Indian Government decided to move on and, based on a Law
Commission report, a Bill was presented to Congress in December 2004.
Obviously deficient in some focal points, it was thoroughly amended and the
final Act goes much further than the initial step.6
Roughly speaking women get everything they were claiming. But it is obvious
that some changes are clear-cut and easy to figure out whereas others are less
simple to assess. To the first category belongs the suppression of s 23 of the
HSA, known as the dwelling issue; this typical gender-biased provision
provided that when a Hindu person (male or female) died leaving a house (that
could be part of an agricultural tenancy) occupied by members of the family,
the right of female heirs to collect their share of the house through selling it or
otherwise would not arise until the male heirs agreed on it. Instead of money,
female heirs could live in the house but this applied only to an unmarried
daughter, a widow, a divorced woman or a wife deserted by her husband.7 This
provision underlined the fact that a married woman did not belong to her own
family anymore and its suppression was sought for a long time.
Reshaping the Mithaksara coparcenary was tougher business: the joint

property principle could be abolished as it had been done in Kerala or it could
be maintained with daughters being partners from now on. Both solutions were
disruptive for coparceners especially if applied to married daughters.
Obviously, the radical approach prevailed; the 1956 compromise about
coparcenary is dead and the main gender inequality in the Hindu inheritance
system disappears at once. But the agricultural land problem that had fuelled
controversy in northern India and known as the 'Land Acts' issue was still
unsolved. So the ambiguous provision was very quietly removed from the HSA.
Implementing these new solutions, especially the last one, will not be an easy
task. Most Indian scholars think that the HSA is on the whole poorly effective
in promoting gender equality and even the unclear possibility of making state
laws occasionally prevail acted as a kind of safety valve. So, even if we can
consider the reshaping of the ancient misogynist Mithaksara coparcenary as
the most dramatic achievement, the agricultural land issue may well reveal itself
the tougher.
6 On the new Act: PK Das New Law on Hindu Succession Act: Property rights of women and
daughtersunder the Hindu Succession (Amendment) Act (Saujanya Books, Delhi, 2005) 259.
7 This provision was very unfair for an unhappy wife compelled to ask for divorce or remain
with her husband as she had nowhere to go. For a widow, the unfairness was just the same
though opposite: she had to remain in the house whereas she might wish to live on her own.
II MAIN ACHIEVEMENT: RESHAPING THE

MISOGYNIST MITHAKSARA COPARCENARY
The HSA contained some provisions eager to deal with some past unfairness
and to find workable solutions when getting to the core of Hindu traditions.
The 1956 compromise (a) has been overridden by the 2005 amendment (b).
(a) The 1956 compromise
In the first place, widows who in 1937 had gained a life interest in their
husbands' assets for maintenance purposes from now on were to be considered
as full owners of those assets including the joint assets, which meant the right
to partition and sell the land. This gave way to a lot of litigation when the
widow started selling the common land; indeed this was often challenged by the
husband's male relatives and coparceners. Widows usually got strong support
from the courts.8
The most delicate problem was to decide on coparcenaries: would the

daughters become full partners? This was suggested and seriously considered
but eventually not settled in this way. According to the HSA, females belonging
to first class heirs (daughters, widow, mother) are not partners but they will get
a compensation as an heir: whenever a coparcener died, a fictitious partition
was achieved; shares were assessed and divided but only to carve out the share
of the deceased. It was not a real partition. The share, as carved out, was
distributed in equal parts to first class heirs and the joint family was supposed
to receive their share afterwards especially if a lump sum of money had been
given to the daughters in lieu of the share. However, scholars thought 9 that this
was likely to end up, most of the time, in disruption to the community.
But, though not obviously, this arrangement remained strongly gender-biased.

Indeed, when the so-called notional partition occurred to carve out the father's
share and have it transferred to children, it has not been emphasised enough
that the sons would get richer as surviving partners as well as heirs. We know
that in the joint family devolution does not occur through succession but
through survivorship. This is the reason why a coparcener has no idea of his
prospective share until partition because it depends on births and deaths.
Hence, when the father died his sons automatically had an increased share in
the coparcenary; but not the daughters.' 0 However, the son collected his share
as heir as well. So sons received two grants as coparcener and heir whereas
daughters received one grant only as heirs. And that is the reason why the
compromise had to be reviewed.
8 See, for example, a Supreme Court ruling in 1996 AIR 146.

9 See D Annoussamy Le droit indien en marche (Soci6t6 de 16gislation compar6e, Paris, 2001),
279.
10 Kusum 'Towards gender-just property laws' (2005) 47 Journal of the Indian Law Institute 95.
India (Part2) 125
(b) The 2005 solution
The new s 6 of the HSA bridges the gap left by the 1956 compromise. It
provides that daughters have by birth full coparcener's rights and liabilities on
the same level as sons; and it is twice repeated (s 6-a and 6-b) in the new
provision. It means that, since 9 September 2005, every joint family has to
include as additional partner's daughters and daughters' daughters
automatically.
Moreover, the new Act does what the former state level laws had not done,
ie that daughters already married at the time of the enforceability of the new
regulations are granted these new rights as well as unmarried daughters. This is
a real breakthrough and will not go unnoticed. Indeed every Hindu knows that
giving a dowry to daughters was one of the Mithaksara coparcenary
obligations. Hence the idea that the daughter may have been given a
compensation for her non-partner status by means of a dowry and
consequently that the new Act should not apply to previously married
daughters. This suggested restriction was actually inconsistent: the dowry
should not be a compensation for having fewer or no rights at all in one's family
interests. Doing so would be to admit officially that the Indian daughter,
estranged from her own kinship, has to bring money to fit into a new home and
family. Though dowry practices are of very little comfort, because most of the
time in-laws will try to grab it or take control of it, this goes legally against the
Dowry Prohibition Act 1961.11 Actually dowries should not fit into the
coparcenary birthrights but be considered as a pre-mortem share possibly
collected by the daughter and later on be deducted from the daughter's total
share of the deceased parent's heirloom. Indeed, what was at stake in this
controversy could be more than just inheritance issues and have a close link
with dowry issues: many Indian scholars feel that the main explanation of the
well-known dowry abuses is the deprivation of a daughter's rights in her family
assets devolution; the dowry buys the bride a kind of share as a potential
widow in her husband's family heirloom; consequently the best way to curb
these abuses would be to enhance equal rights among children in families so
that the married daughter should not need a widow's allotment.12 So it would
have been a real mistake to make dowry issues interfere - even in a transitory
way - with the new Act.
Would the total abolition of Mithaksara joint property (as in Kerala) have been
a better solution? Some Indian scholars considered this difficult to work out as
it would have had to be safeguarded by restrictions on testamentary freedom
because fathers would have drawn up wills to disinherit daughters.13 However,
" See W Menski (ed) South Asians and the dowry problem (Trentham Books, London, 1998), 97;
Laroche-Gisserot 'De la compensation matrimoniale A la dot dans le mariage indien moderne'
(2006) Les Annales (A paraitre n 3).
12 Madhu Kishwar (founder of Manushi review) Off the beaten track: Rethinking gender justice
for Indian women (Oxford University Press, Delhi, 1999) esp ch 2.
13 B Agarwal 'Landmark step to gender equality', The Hindu, 25 September 2005, 1 (the author
was closely associated with the parliamentary process).
we are left with the fact that inheritance settlements of deceased Hindu
coparceners will not be made easier by the new amendment; two sets of
operations have still to be conducted with the same persons but separately: the
management of the coparcenary after the father's death has to be reorganised
with the remaining partners and the share of the deceased has to be transferred
(and that involves partners as well). As in the 1956 Act, this devolution does
not operate any longer through survivorship to actual partners but to intestate
or testamentary heirs. As before the notional partition has to take place and, if
devolution operates intestate, first class heirs (children, widow, mother) will
collect equal shares. The new s 6 insists on the fact that daughters and sons
must collect equally which was already the 1956 solution (this operation should
lead to the deduction of a possible dowry). One can consider that, in an
increased way because of new added partners, the disruptive effect of such
assessments and allotments will give way to partition and that de facto the old
Mithaksara coparcenary arrangements will decline and in the long run
disappear.
As on the contrary, agriculture will remain for a while the occupation of most
Indians, it is important to assess the effect of the new Act regarding the quiet
suppression of the land property provision in the HSA.
III AGRICULTURAL LAND BACK INTO THE HSA
Section 4(2), which is suppressed by the 2005 Amendment Act, was an unclear
provision which had given way to a lot of litigation and had even underlined
the contrast between the (moderately) gender-equality oriented Southern India
and the more misogynist Northern India. Constitutional issues were involved
as well. The debate was very unfortunate (a) but the clarification could be very
difficult to implement (b).
(a) An unfortunate debate
After independence most states enacted Land Acts to abolish and dismantle the
old Zamindari system (a sort of feudal system). That is why some tenants
paying rent became full owners; ceilings were fixed to prevent the comeback of
Zamindars, and other provisions prevented fragmentation of holdings to
consolidate this new class of owners. In most Northern States these Land Acts
contain provisions for devolution of land through inheritance as well and they
are strongly gender-biased. So what happens in the case of a conflict between
these provisions and the HSA? For some scholars it is against the Indian
Constitution that the HSA should rule agricultural land which is under state
jurisdiction. But as intestate devolution is under federal jurisdiction the
assumption is far from correct. Some court orders in the north favoured the
India (Part 2) 127
anti-HSA solution and it was often said that this Act does not apply to
agricultural land.14 But it was never ruled that way by the Supreme Court.
What fuelled controversy was the fact that the above related s 4(2) of the HSA
was supposed to deal with these possible conflicts in a very unclear way. It
provided that the HSA will not prevail over provisions of local Acts if they fix
ceilings, prevent fragmentation of holdings or provide for the 'devolution of
tenancy rights'. Obviously it meant that the HSA prevailed over other
provisions that might be in those land Acts. But an additional controversy
arose about the correct meaning of 'devolution of tenancy rights'. For some
scholars and judges 'tenancy' means any kind of title allowing people on the
land to cultivate it either by full ownership or by renting. For others it was
obvious that tenants were only people paying rent. These two constructions led
to opposite solutions. If tenancy included ownership, the provisions of local
acts regarding the devolution of land through inheritance obviously prevailed
over the HSA; they were 'saved' by the above provision and equality was simply
ruled out; if not it was just the other way round. The HSA was written in
English and the inconvenience of this has been underlined. Regarding this
specific issue the difficulty was very serious. Some Indian judges looked up the
meaning in English dictionaries and found out that tenancy means both renting
and full property! So far it seemed that most courts had chosen the restrictive
construction that allowed the HSA to apply to most land cases.15 But nothing
was final and things remained confused. This is why the new Act is probably
not welcome everywhere.
(b) Implementing the solution
The first cause of concern is that the suppression of the controversial provision
went almost unnoticed; it was introduced after the Bill's presentation through
amendments and was voted on on the quiet; 16 experience teaches that such
unnoted and uncommented changes on sensitive issues give way to court battles
(and maybe more so in common law countries).
Moreover the new rule will have to coexist with the fact that agricultural land
legal statutes and distribution remain outside constitutional challenges and are
ruled on locally. In some states, regulations are openly discriminatory as in
Uttar Pradesh (one-sixth of the Indian population). Land ceiling legislation is a
good example: adult daughters are not taken into account for the definition of
the family; both spouses' holdings are added whereas there is no community of
property in India. Practices may be just as unfair: if surplus forfeiture occurs, it
will usually be done in consultation with the husband and will lead to taking
away the wife's land; redistribution will be carried out in order to favour
14 SA Desai Hindu law (Butterworths, New Delhi, 2001) vol 2, s 4; see Allahabad High Court
rulings 1970 AIR 238; 1973 AIR 407; 1975 AIR 125.
1s See Bombay High Court 1994 AIR 247; see also Punjab High Court 1964 AIR 272 and
although unclear (based on application of personal law provided by the specific land Act) SC
1978 AIR 793.
16 See B Agarwal 'Landmark step to gender equality', The Hindu, 25 September 2005.
male-headed households despite official recommendations.17 In a lot of cases

tenancy registration practices only lead to registering the woman's land under
her husband's or son's name and this does not encourage women to claim their
rights. Whereas in the South comprehensive data show that owning land or a
house seriously decreases the risk of domestic violence against women, some
regional split and resistance are very likely to occur."
IV CONCLUSION
It is obvious that the 2005 Act is a landmark in gender equality. Will it only
benefit a few women, with many others being submitted to the pressure of
custom? What we know about the actual implementation of the 1956 Act may
lead to pessimism. It has been reported that even a lawyer or a judge will advise
his wife not to claim her share in her father's heirloom because he expects his
own sisters will do the same. 19 If in educated circles the law is not implemented,
what can we expect for illiterate women or for those who live secluded lives in
rural areas? The existence of early marriage and virilocal residence powerfully
acts against women. As they leave their birthplace and family, what use will
they have of land or property so far away from effective control? But obviously
in modern India males of every strata migrate for jobs and do not give up
claims on family assets. Why should women give up their claims? The answer is
definitely beyond the mere changing of the law.
1 B Agarwal A field of one's own (Cambridge University Press, Delhi, 1994).

8 Ibid; it is important to consider that this regional split started a long time ago: dowry cases are
more frequent in Northern India and the sex ratio is more strongly biased against girls than in
Southern India (Laroche-Gisserot 'De la compensation matrimoniale A la dot dans le mariage
indien moderne' (2006) Les Annales (A paraitre n 3)).
19 See D Annoussamy Le droit indien en marche (Soci6te de 16gislation comparbe, Paris, 2001) 291.
October 2013 InternationalJournalof Civil Society Law Vol. XI, Issue 2
LAW OF WAQF AS A PURPOSIVE DEVICE FOR PROMOTING SOCIAL

JUSTICE AND HUMAN RIGHTS: A STUDY OF INDIAN EXPERIENCE
PROF. P. ISHWARA BHAT
INTRODUCTION
This chapter aims at surveying the values of social justice and human rights underlying the
institution of waqf, law's concern to protect genuine charity as distinguished from private
benefaction; the scheme for purpose compliance, and its democratic orientation; trends of
development to make the institution strong against abuses and loss of waqf property;
conservation of cultural traits; and the institutional strength and weaknesses of the legal device.
Amidst the mandatory practices of Islamic religion, charity attains a socially significant
place . Islamic concept of property also lays emphasis on legitimate means of its acquisition, non
accumulation of wealth and planned charity2 . Condemnation of selfishness and exhortation for
socially responsible conduct of supporting righteous sharing are explicit in Quran3 . It is said that
God promises to pour mercy on and protect the Believers who are protectors of one another by
enjoining what is just and forbidding what is evil4 . Protection of all, including the kith and kin
from the pains of penury is a human responsibility for public welfare 5 . While individual alms
giving (sadaqua) and obligatory charitable contribution (zakat) operate at individual level 6, a
more enduring and institutional scheme was developed
7
on the basis of experience in the form of
Islamic charitable foundation called as waqf.
The system of waqf is a unique and significant innovation of Islamic law that has
interwoven religious life with social economy of Muslims 8., institutionalized the impulse and acts
I The Quran, 98: 4 and 5: Faith in the unity of God, regular prayer, regular charity, fasting, and pilgrimage are the
mandatory practices called as five pillars of Islam.
2 "Do not even aim at getting anything which is bad".( The Quran 2:267),"Those who devour usury will not stand
except, stand as one whom the Evil one by his touch hath driven to madness" (The Quran 2:275),"God does not love
those who are niggardly or enjoin niggardliness on others, or hide the bounties which God hath bestowed on them",
(The Quran 4:36)'No one shall use the property to corrupt the judges nor shall one steal property of another' (The
Quran 4:37),'God is very much appreciative of good deeds like spending in charity and promises much better
rewards than the volume of charity provided (The Quran, 35:30)
3 The Quran 4:37;4:5; Samiul Hasan, Philanthropy and Social Justice in Islam (Kuala Lumpur: A.S.Noordeen, 2007)
p.61 and 73
4 The Quran 7: 156;9:71;22:78;24:56; 2: 270. also see S A Kader, The Law of Wakfs: An analytical
and Critical
Study (Calcutta: Eastern Law House, 1999) pp. 1-5
5 Samiul Hasan, supra n. 3 pp. 10 1 - 104.
6 Obligatory charitable wealth tax (zakat ul mal), obligatory ushr on agriculture produce and
obligatory festival
charity (zakat ul fitr) are calculated, demanded and collected by public administration or community organizations
in Muslim States. They are used for various purposes such as medical aid, education, food aid, protection centres for
widows and orphans etc. See Samiul Hasan, supra n.3 ch.7 - 8. Sadaqa includes assistance to neighbours to children
and relatives etc.
7 It is also spelt as wakf in various enactments and judgments. The Waqf Bill 2010 intends to replace it by waqf
(awqaf in case of plural usage).
' Syed Ameer Ali, Mahommedan Law I (Calcutta, 1912, 1929) p. 19 3
of charity 9, and enriched the socio - cultural life of the Muslims for centuries. The basic
approach of 'Tie up the substance and give away the fruits' intends to make the resources to
perpetually support public good ° .In a simple sense, waqf(pl. awqaf: endowment) is a
foundation formed through voluntary donation by owner of property dedicating the usufruct to
some charitable ends for the duration of property's existence. It is an act of piety, and thereby
seek forgiveness and purify owns soul." 12 It is a process of anticipating and managing the future:
one's own spiritual future; the worldly future of the beneficiaries and the future of property
itself13 . It expresses the framework of moral economy, dominated by ethical notions of justice,
14
equity and redistribution . The sublime philosophy underlying the concept is that the dedicated
endowment is a beautiful loan to Allah which brings 15 back manifold credit of spiritual benefit to
the giver and generous reward to the beneficiaries. It involves alienation of the income -
producing property, in perpetuity to benefit, although not always immediately, a religious or
16
pious cause . Unconditional dedication of property, naming of the beneficiary or beneficiaries
and appointment of mutawalli (trustee, could be founder) are its essential requisites.
LINKS WITH SOCIAL JUSTICE AND HUMAN RIGHTS
Social justice is a basic value of the legal system that aims at protecting and empowering the
marginalized sections like the poor, destitute, women, children, uneducated, aged, abandoned
and the ill-ridden. By supporting these classes, awqaf contribute towards realization of social
justice. Right to food, health, education and shelter get support from the benevolent acts of
waqf.17 The religious and cultural rights promoted through waqf are also noteworthy. 18 This
reminds the aspiration of international human rights instrument. The preamble to the
International Covenant on Economic, Social and Cultural Rights, 1966 realizes that the
individual, having duties to other individuals and to the community to which he belongs, is under
a responsibility to strive for the promotion and observance of the rights recognized in Covenant.
People's right to freely dispose natural wealth and resources for their own ends (Article 1.2), the
liberty of individuals and bodies to establish and direct educational institutions for the full
development of personality and human dignity and for effective participation in free society with
tolerance and social harmony (Art. 13.4 and 13.1), and the right of every one to take part in the
9 Asaf AA Fyzee, Outlines of Muhammadan Law 5th ed. Ed. Tahir Mahmood (New Delhi: Oxford University Press,
2008) p. 225
10 habbis al asl wa sabbil al thamarat; Amir Ali, I, Mahommadan Law 497; Prophet of God is said to make this
statement to Omer when he sought advice for the pious use of piece of land.
11Samiul Hasan, supra n.3 pp. 188 - 189.
12Raissouni,A, Islamic 'WaqfEndowment': Scope and Implications, Translated by A. Benhallam (Rabat: Islamic
Educational Scientific and Cultural organization, 2001) cited by Samiul Hassan, supra n.3 p. 189
13 Ibid; Quran 64.16: "So fear Allah As much as Ye can: Listen and obey: And spend in charity For the benefit of
your own souls And those saved from the covetousness of their own souls- they are the ones that achieve prosperity"
14 Judith Nagota, 'The Changing Perceptions of Waqf, as Social, Cultural and Symbolic Capital in Penang' The
Penang Story InternationalConference 2002 pp. 18 - 21 April.
15The Quran 57:18
16 Samiul Hasan, Supra n.3 p. 194
17Quran 9: 60 "Alms are for the poor and the needy and those employed to administered the funds For those whose
hearts are recently reconciled for those in bondage and debt, and for the wayfarer" also see Quran 2: 215
18 The categories of waqf dedications include purposes like construction of places of worship, maintenance of
facilities therein, support to pilgrimage, establishment and running of religious schools. See infra notes and text 73
to 84.
cultural life (Art. 15. 1.a) have clear implications for role of human rights in the working of
charity under waqf. According to Article 13 of the UN Declaration of Human Rights Defenders
1999, "Everyone has the right, individually and in association with others, to solicit, receive and
utilize resources for the express purpose of promoting and protecting human rights and
fundamental freedoms, through peaceful means, in accordance with article 3 of this
Declaration."19 Utilization of resources endowed for charitable or pious purposes under waqf is a
sure component of this right.
COMPARED WITH TRUST:
Although waqf resembles the concept of trust, it is distinct from it20 . Purpose-wise, it is confined
to religious and / or charitable purpose recognized in shariatwhereas trust can be for any lawful
purpose. Policy decisions are taken by Waqif only in case of Waqf. Founder of waqf cannot be
beneficiary while makers of trusts may be beneficiaries. In waqf property is vested in God while
it is vested in trustee in case trust. Mutawalli is only a supervisor with limited power whereas in
trust, the trustees are power holders. Waqf must be perpetual, irrevocable and unalienable while
trust has none of these features. When the objects are exhausted, the property is rededicated to
public benefit in case of Waqf whereas property reverts back to founder of trust in case of trust.
HISTORICAL DEVELOPMENT:
History unfolds that waqf had been formed for construction of Ka- ba at Mecca, for emancipation
of slaves, for supporting the poor, for guests, for travelers and for kinsmen 21 . Some of the finest
awqaf examples are: bequest of agricultural land to orphans to plough land and benefit from the
crops; waqf to farmers to have seeds; waqf to build dam, dig wells and supply water to the poor
people; to offer medical care, for relief efforts, schooling and teaching; to hostels; to maintain
mosque; to distribute copies of Quran in thousands; to empower the poor with food and
employment; and to support women 22
It can be seen that benefits of awqaf have channeled to social purposes and upheld the
cardinal value goal of good work as an approach to God 23 . Madrasas (religious schools) and
orphanages have served the community successfully for generations gathering support from
waqf. Public bath and other facilities have fulfilled the physical and spiritual needs of ritual
purity. Traditional law has allowed family waqf or private waqf to serve the private interests in
perpetuity whereas statutory law has superadded the requirement of purpose recognized by
Muslim Law as pious, religions or charitable 24 . Women's competence to found and administer
waqf has added to their economic rights by safeguarding their property from predatory
19 UN General Assembly's Declaration on the Right and Responsibility of Individuals, Groups and Organs of
Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms 1999
20 Ibid p. 191; also see S.I Jafri and A.B. Srivastava, Wakf Laws (5th ed. Allahabad: Law Publishers Pvt. Ltd, 2002)
p.lxiii; Asaf AA Fyzee, supra n.8 p. 228
21 Samiul Hasan, supra n.3, pp 194 -5
22 htt://www.iieoorg/iico home ae.home ae eng/wa f eng htm
23 Samiul Hasan, supra n.3 p.202
24 Section 3 (r) (iii) of the Wakf Act, 1995
relatives . This has gone a long way towards their social emancipation and financial autonomy.
WAOF'S SOCIAL PRESENCE:
In terms of size, spread out, variety of purposes and social utility, waqf has exhibited a great
social presence as a beneficent voluntary sector. In Turkey, Yemen, Egypt and other Muslim
countries vast areas of arable land and urban properties have been dedicated to waqf sometimes
raising a rehension of rule of the dead hand over the living and obstruction to economic
progress . Few centuries of Muslim rule in India had given impetus to the formation and
management of waqf. The British policy of excessive taxing of hitherto tax free sector had
adverse effect on the working of awqaf.The present position is explained by Rajinder Sachar
Committee report as follows" "there are more than 4.9 lakh registered Waqfs spread over
different states and union territories. Large concentration of the Waqf properties is found in West
Bengal (1,48,200) followed by Uttar Pradesh (1,22,839).... The total area under Waqf properties
all over India is estimated about 6 lakh acres and the book value at about Rs. 6000 crores". 27 The
market value is far higher although the annual income is Rs. 163 crores which amounts to a
return of 2.7 percent. While the book value is estimated 50 years ago, the present market value
according to the Report is Rs. 1.2 lakh crores (1,200 billion). The Committee noted that some of
the waqf properties are situated in prime locations and have the potentiality of generating great
income which could improve human development.
HISTORY OF INDIAN WAOF LAW:
A checkered history can be found in the evolution of statutory law of waqf in India. The Bengal
Code 1810 and Madras Code 1817 had provided for strict watch over the religious (both Hindu
and Muslim) trusts and endowments and arranged for the stringent control of their management
through the instrumentality of the Board of Revenue and other officers of the State. The system
28
of active supervision brought general satisfaction to the people . With the resentment of
Christian Missionaries about State's indirect support to native religions, the Government
withdrew from the policy of supervision in 1840 and allowed the administration of religious
institutions to be entirely handled by responsible individuals professing the respective faith with
fidelity and regularity subject to judicial control 29 . Experiencing the growing instances of
mismanagement and embezzlement, the Central Legislature enacted the Religious Endowments
Act 1863 and the Charitable Endowments Act 1890 which provided for management of the
endowments by the managing committee and treasures, respectively who held office for life.
25Samiul Hasan, supra n.3p. 205

26 Samiul Hasan supra n.3 pp. 19 6 -197; Asaf AA Iyzee, op cit 225; In Turkey 75% of arable land, in Yemen
25% of
farmland and 50 % of urban properties and in Egypt 40% of cultivated land are held by Waqfs.
27Prime Minister's High Level Committee for Preparation of Report on Social, Economic and Educational
Status of
the Muslim Community in India headed by Rajinder Sachar (popularly called as Rajinder Sachar Committee)
submitted its report in 2006. According to K.Rehman Khan, Chairman of Central Waqf Council, the third largest
ownership of land after the Indian Railways and the defense department is that of the Waqf. Most of the registered
waqf have been formed for the purposes of mosques, dargas, madrasas, educational institutions, medical
dispensaries, haz and other facilities to members. State Waqf Boards have published details about waqfs, their
financial position, income and functions in their websites.
28 S.A.Kader, supra n. 4 p. 7
29The letter of the Governor - general - in Council dated 10.08.1840
They were subject to judicial control, which was, in fact, not effective 30
In response to a Privy Council decision in 1894 which had declined to recognize

dedication in favour of the settler's children and descendants, the Mussalman Wakf Validating
Act 1913 was passed to restore the traditional position of Wakf alal-aulad.Again when the
Privy Council 32 declined to give retrospective effect to the Act, in order to cover all wakfs, a law
was enacted in 1930. The development reflected native community's inclination to restore the
traditional practice as opposed to judicial misunderstanding.
The journey of statutory regulation of waqf management starts with the Mussalman Wakf
Act 1923. The Act obligated all the mutawallis to furnish to the District Court details about
description of wakf properties, and allocation of amount for the salary of the mutawalli, for
religious purposes and for charitable purposes. The Court was to publish these information.
Mutawalli had to give audited statement of accounts also. As laid down by the Lahore High
Court 33, the Court was only depository of information and had no administrative power to ensure
compliance with the Act. No independent body for supervision of all wakfs was constituted.
In contrast, Bengal and UP State Legislatures experimented with elaborate legal

framework through institutional supervision of wakq administration. The Bengal Wakf Act 1934
is a pioneering effort in evolving the strong principles and methods of purpose compliance and
democratic norms about the composition and functioning of the Board of Wakfs. (Section 8 -12).
The functions of the Commissioners, who was the President of the Board, included the tasks of
(a) ensuring that the income and other property of Wakfs are applied to the objects and for the
purpose and benefit of any class of persons for which wakfs are created or intended (Section 27
(1)(b) and 28); and (b) providing for revision of the provisions of wakf only in case it has
become inoperative or impossible in execution (Section 28 proviso). These speak about the
orientation towards purpose compliance. The provisions for enrolment, registration, accounts and
audit and prohibition on transfer of Wakf property without prior sanction of the Board also
support the scheme of purpose compliance (Section 44, 48, 49 and 53). Recovery of illegally
transferred property (Sec 54a) and rigid obligation of mutawalli to apply for enrolment, to
provide information and carry out the directions of the Board and comply with the law contribute
towards efficacy of the scheme. ( Sec. 56) Annual payment of six percent of net income of wakf
Board for meeting the administrative expenses is also provided for (Sec 59 and 62).
Under the UP Muslim Wakq Act 1936 also, similar policies can be traced. The
Mussalman Wakf (Bombay Amendment) Act 1935 and the Bihar Wakf Act 1948 had also
deviated from thr Mussalman Wakq Act 1923 and provided for extensive regulation of Wakf.
In light of experiences from provinces and the unsatisfactory position of the Act of 1923,
the Wakf Act 1954 was enacted. It provided for survey and registration of Wakfs, constitution of
a Board of Wakfs in each State with supervisory powers on all wakfs within the State and a duty
upon the Board to ensure that wakfs are properly maintained, controlled and administered and
30 See supra ch.4

31
Abdul Fatav. Russomoy, ILR (1894) 22 Cal 619 pc; 22 I.A.76
32 Khajeh Soleman v. Nawab Sir Salimullah AIR 1922 PC 107
33 Shiya Youngman Association v. Syed FatahAli Shah, AIR 1941 Lah 145 (FB)
the income is applied for the objects and purposes of the Wakf. Comprehensive amendment to
the Act was brought in 1984 to provide for reconstitution of the Board, appointment of Wakf
Commissioners, enlargement of State Government's power to control and supervise the wakfs,
strengthening the accounting and audit system and formation of Wakf Tribunal. The changes
were necessitated in view of the fact that the Wakf Boards had failed to achieve the purpose for
which they were established. But the changes were not carried out because of the opposition
from some sections of the Muslim Community. Political influence in the selection of Board
members, supersession and reconstitution of the Board, non - recovery of improperly alienated
property, inadequate control over the Mutawallis, non registration of wakfs to escape from legal
control and delay had made the law almost a dead letter34 . Continuation of regional wakf laws
had resulted in diversity. After widely consulting the leaders of Muslim Community a new law,
the Wakf Act 1995, was enacted uniformly applicable throughout India except the State of
Jammu & Kashmir to provide for better administration of Wakfs.
THE PROBLEMATIC FACTORS
Before analyzing how the purpose scrutiny and purpose compliance are carried out in the policy
and functioning of the Wakf Law, it is appropriate to examine the problematic factors,
constraints and undersides that have seriously challenged the efficacy of the law protecting pious
objectives underlying the institution of Wakf.
First,there is an inherent difficulty arising from the feature of perpetuity because of

which 'possession of the dead hand' spells ruins on the initiative of natural growth and
development of a healthy national economy 35 . It obstructs agrarian reforms and developmental
acts.
Second, there are organizational constraints where mutawallis involve in mismanagement

of wakf, and misappropriation for personal ends; lesser enthusiasm amidst mutawallis to utilize
the fund or raise loan from wakf Board impede promotion of education, and other lendable
works inadequate empowerment of State Wakf Boards and Central Wakf Council fail to sub
serve the larger public interest. Deterioration of agricultural land and grossly inadequate rents
have resulted in yield of less return to the Wakf property 36 .
Third, non - availability of revenue records and prolonged litigation have posed serious
threat to the efficacy of Wakf 37 .
Fourth, encroachment of Wakf properties by private persons, government and its

agencies has challenged the functional competence of Wakf. According, to Sachar Committee
Report, the number of Wakf properties under the unauthorized occupation by public bodies is a
matter of serious concern (Delhi 8316, Rajasthan 60, Karnataka 42, Madhya Pradesh 53, Uttar
34 S.A .Kader, supra n.4 p. 12; the Statement of objects and reasons for the Wakf Act 1995 refers to the criticisms
about gross interference by the Central and State Governments in the day to day management and administration of
the Wakfs.
35 AAA Fyzee, supra n.9 p. 225
36 Rajinder Sarehar Committee Report.
37 Ibid
Pradesh 60, and Orissa 53).
Fifth, while the value of urban wakf property has shot up, there is stagnancy in income
generation 38 . The Karnataka State Minorities Commission Report 2012 has disclosed that in
Karnataka 50 percent of Wakf properties (27,000 acres of land) worth of Rs. 2 lakh crores have
been misappropriated or illegally sold by State Waqf Board members and influential
politicians . In Andhra Pradesh also there are allegations about conversion of Wakq property
into government land.
Sixth, excessive bureaucratic 40 control has encroached autonomy of Wakf institution. The
above difficulties call for a more serious approach of purpose-scrutiny and purpose compliance.
LEGAL CONCEPT OF WAKF AND PURPOSE SCRUTINY -
In the very definition and ingredients of wakf, its purposive character can be identified.
According to sub clause (r) of Section 3 of the Wakfs Act 1995, "Wakf' means the permanent
dedication by a person professing Islam, of any movable or immovable property for any purpose
recognised by the Muslim law as pious, religious or charitable and includes -
(i) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user
having ceased irrespective of the period of cesser;
(ii) "grants", including mashrut-ul-khidmat for any purpose recognised by the Muslim
law as pious, religious or charitable; and
(iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose
recognised by Muslim law as pious, religious or charitable
and "wakif' means any person making such dedication.
The following analysis tries to establish that in each of the five ingredients of wakf and in
the operation of each inclusive clause (i) to (iii), the focus on pious, religious or charitable
purpose is conspicuous.
THE FIVE INGREDIENTS -
Firstly, dedication of property for fulfilling the objectives of wakf is an act that delinks the wakf s
ownership, makes it inalienable and devotes its usufruct to the stated purpose. Under the
Mohammadan Law, if anyone resolves to devote his property to religious purpose and expresses
his intention through specific act, his property vests in Almighty God and its profit be applied for
the benefit of mankind 4 . The declaration of dedication shall be unequivocal, whether express or
38 Ibid
39 The Islamic World, The 105 Minaret (AM Online Islamic journal). Also see 'The Lost Land' Outlook Bureau.mht
40 Mohammad Hashim Kamali, Equity and Fairnessin Islam, (Cambridge: The Islamic Text Society, 2005) 92.
41 MohammadJ. in Jawahara v. Akbar Hussain, ILR7 All 178 (FB)and the JudiciaI Committee in Vidya Varuthi Swamigal v. Balusamy lyer, AIR1922 PC123; (1921) 4814 302; ILR
44 Mad 831
42
implied and whether oral or in writing . The words of dedication need not make use of the term
wak 4 3 . But intention to dedication should be clear 44 . Dedication may be inferred from the wakf
deed, conduct of parties and the way in which property is treated by the settler and his
successors 45 . Registration of the deed is also not mandatory 46 . In case of dedication intervivos,
about the requirement of appointment of mutawalli and transfer of possession, there are different
47 48
views . Most of the High courts have dispensed with the requirement under Sunni law . But
Shia law requires fulfillment of these conditions4 9 . Under both the laws, mere intention to
dedicate is not sufficient, but manifestation of it through express declaration is required50 . In
controversies relating to nature of mosque in private house, the position is to be cleared by
looking to the issue whether the owner had expressed dedication by expressly or impliedly
allowing the members of Muslim community to offer prayer in congregation as of right51 . The
Supreme Court has observed in Syed Mohamed, "It is not necessary for the dedication of a public
mosque that a mutawalli or Pesi Imam should be appointed, which could be done later by the
members of the Muslim community. All that is necessary is that there should be a declaration of
the intention to dedicate either expressly or impliedly and a divestment of his interest in the
property by the owner followed by delivery of possession 52 .However, the Court also clarified
that as an alternative to delivery of possession, there shall be allowing of the Mohammadan 53
public to offer prayer. When both are absent, there would not be dedication to public mosque."
Dedication to wakf can be made by Will also. If the dedicated property is impressed with
the character of wakf soon after the death of the testator, it is called wakf-bil-wasiyat whereas
when a wakf is to be created by a legatee or executor according to the Will after the death of the
testator, it is called wasiyat-bil-wakf54. In case legatee fails to create a wakf, the obligation can
be enforced by any person interested in the wakf 5 . Dedication by Will cannot exceed one third
of his estate unless his heirs assent to 56 . Wakf subject to the condition of payment of debt is valid
whereas wakf in fraud of creditors is bad in law, and shall be invalidated 57 . Further, contingent
42 S.A. Kader, supra p. 43; Jeevan Das v. Kubee oo-deen, (1840) 2 MIA 390
43 PiranAbdul Karim, ILR (1891) 19 Cal; Mariambaiv. Md. Jaffar, AIR 1973 Mad 191
44 Tyabji, Muslim Law, 1968 Ed. pp. 500 - 501
45 Mohammad Raza v. Yadgar Hussain, AIR 1924 PC 109; Maztar Hussain v. Adiya Saran, AIR 1948 PC 42
46 Anjuman Islamia v. Muhammad Khair Hussain, 1981 All U. 1120
47 Abu Yusuf dispenses with the requirement while Imam Mohammad insists on them. Yusuf views is followed by
various High courts.
48 Jirijirav. Mohammad, AIR 1922 Cal 429; Md. Imam v. B.B. Mariam,ILR Pat 484; Pathukuth Umma v.
Nedrengudi Bank, AIR 1937 Mad 731; Abdul Razack v. Jimabai,(1911) 14 Bom LR 295
49 Mt. Abachi Begum v. Khaniz Zarib, AIR 1927 PC 2; Ali Zamin v. Akbar Ali, AIR 1937 PC 127
50
Banubi v. Narasingrao,ILR 31 Bom 250; ZafarHussainv. Mian Muhammad, AIR 1937 Lah 552
51 Khalid Ahamad v. Shik Mohammad, AIR 1965 All 320; also see Ameer Ali, Mohammedan Law, 1985 Ed. Vol I p.
394
52 Syed Mohammed Sabie Labbai v. Md. Hanifa, AIR 1976 SC 1569
53 Mohammed v. Mohammed, (1996) 10 SCC 705
54 The destination is one of form and not of substance as viewed by Sir Arthur Wilson in BackerAlikhan v.
Anjuman Ara Begam, ILR 25 All 236 (PC)
55 S.A. Kader p. 52
56 Allah Baksh v. Mohamed Umar, AIR 1929 Lah 444
57 Mst. MusharafBegam v. Mt. Sikkandar Jahan Beha, AIR 1928 All 516; Abdul SattarIsmail v. Abdul Hamid Sait,
AIR 1944 Mad 504
dedication is void under all schools of Islamic law 58
Growth of the law around first ingredient has moved away from formalism, eased the
process of dedication and focused attention on express act of dedication and certainty about
divestment of property from the wakif. While the facilitative role of law is understandable,
difficulty in the matter of evidence in case of unwritten and unregistered dedication is
problematic.
The second ingredient of wakf, viz permanence of settlement envisages enduring effect
and social viability of wakf. The justification for wakf consists in everlasting benefit to the
mankind5 9 . Since the objectives like 'religious, pious or charitable' have the elements of
perpetuity, and as the spirituality and the poor are always in existence, perpetual character of
dedication can be legally presumed, and socially justifiable on the basis of noble purpose 60
The third ingredient of wakf, viz subject of dedication, requires that the property shall
belong to the settler at the time of dedication 61. He alone can divest his right and settle it for the
benefit of mankind 62 .There was controversy amidst Islamic scholars and courts on the issue
whether movable property could be dedicated in wakf 3 . The Wakf Act has resolved the doubt by
allowing dedication of movable and immovable property into wakf. In the changed socio-
economic circumstance where movable property has grown in importance, the Indian law has
helped the cause of philanthropy 64 by enabling wakf of movable property.
The fourth ingredient, viz competence of dedicator excludes persons of insanity and
infancy from dedicating property for wakf 65 . Traditional Islamic law had favoured liberal
approach of allowing persons not professing Islam to create wakf. As Ameer Ali said, "Islam is
not a necessary condition for the constitution of a wakf'. 66 Following this principle, the High
Courts of Allahabad and Lahore held that when non-Muslim owners dedicated land for
construction of mosques or for use as graveyard there was nothing illegal or objectionable as
utility for noble cause was laudable 67. Since philanthropy transcended religious boundaries and
notion of cultural syncretism was strengthening the social mind for cultural pluralism, the
approach was theoretically sound. But it appears, property related disputes on place of worship,
sensitive matters provoking communal disharmony and segregationist approach persuaded the
58 Ali Zaman v. Akbar Ali, AIR 1937 PC 127; Mst. Bibi Kubra v. Jainandan,AIR 1955 Pat 270
59 It is also called doctrine of Tanjiz. Punjab Wakf Board v. Shakan Masih, AIR 1997 SC 104; Commissioner of
Wakfs WB v. Kazi Rashid Ali, AIR 1958 Cal 413
60 Hedaya 234; Beille, Vol. I p. 557; AmarAli, Mohammedan Law 1985 Ed. Vol. I p. 513
61 S.A. Kader p. 57
62 Mashuddin v. Bullabh Das, ILR (1912) 35 All 68; MohammadAli v. Dinesh, AIR 1940 Cal 417
63 Hence, lease for limited period cannot be dedicated. See, Mst. Peeran v. Hafiz Md., AIR 1966 All 201
64 Abu Hanifa and Aby Yusuf holding it as invalid, a view followed in Kulsoom Bibi v. Gulam Hussain, 10 CWN
449; Fatima Bai v. Gulam Hussain, 9 Born LR 1337; KadirIbrahim v. Md. Rahmatullah, 33 Mad 118 whereas
Imam Muhammed held it as valid wakf when movable property is dedicated. The latter view is followed in Abu
Sayed v. BakarAli, ILR (1901) 24 All 190.
65 The disadvantage of not allowing dedication of movable property for wakf has been experienced in some of the
Islamic countries. See Muhammad Hashim Kamali, op cit p. 97
66 Section 3 of the Indian Majority Act 1875 stipulates completion of 18 as the age of majority.
67 AmeerAli, Mohammedan Law, 1985 Ed. Vol. I p. 200
68
law makers ever since 1913 to confine the opportunities of creating wakf only to the Muslims
However, the Amendment Act 1984 introduced the words "or any other person" after the words
"a person professing Islam." This was undone in the Wakf Act 1995 because of which a valid
wakf can be created only by a Muslim under the main limb of the definition at present.
The fifth ingredient contemplates that the dedication by way of wakf must be for any
purpose recognized by Muslim law as pious, religious or charitable. These objectives are
69 ,
overlapping because religion is interwoven with piety and charity . Every object, therefore, is
intended for the spiritual, religious, moral or material good of human being."70 Reference to the
definition of 'beneficiary' makes it clear that any other objects of public utility sanctioned by the
Muslim law are also within its ambit7 . Over the years, courts have engaged in theoretical and
technical distinction between what are valid objects and what are not valid objects of wakf under
Islamic law by applying the Koranic principles and morality 72 . The real purpose of making a
wakf is to acquire merit in the eyes of Lord 73 . Hence religious institution have been the major
beneficiaries of wakf or awqaf. They also serve the social purposes like education, orphanages,
shelter and health.
Wilson classifies the wakf purposes into five broad categories74 : In thefirst category
come mosques and provisions for Imam to conduct worship therein 75 ; provision for lamps in
mosques 76; idgah 7; khangah 78; takia79; imambra 8; performance of urs8 ; dargah 2; maintenance
of tomb of a saint 3; kabirstan or cemetery 84 reading of Koran 85 and such other religious acts.
Although there is a judicial decision 86 in 1882 to the effect that wakf property might be validly
dedicated to support Jihad or religious war, it does not fit into this category nor justified under
68 Miru v. Ramgopal, 1935 All U 1269; Amir Singh v. Badardin, AIR 1940 Lah 119
69 The Mussalman Wakf Validating Act 1913, the Wakf Act 1923 and the Wakf Act 1954 had this
approach.
70 S.A. Kader, p. 60.
71Ameer Ali, Mohammedan Law, 1985 Ed. Vol. I p. 276
72 According to Section 3 (a) of the Wakf Act 1995, "beneficiary" means a person or object for whose benefit a wakf
is created and includes religious, pious and charitable objects and any other objects of public utility sanctioned by
the Muslim law.
73 Quran 57: 7; 4: 36; 2: 262.
74 AAA Fyzee, Outlines of Muhammadan Law p. 236; also see Samiul Hasan, Philanthropyand Social Justice in
Islam p. 202
75 Wilson RK, Anglo-Muhammadan Law (6th Ed. London 1930) p. 354 citing Hidaya, Tyabji, Mulla and Fitzerald.
76 Baillie I. 556; Maholachoorv. FaizurRahman, 35 IC 880; Syed Mohamed Labbai v. Mohamed Hanifa, AIR 1976
SC 1569
77 Mahazar Husain v. Abdul, 33 All 400
78 Kulsam Bi v. Mohamed Abdul Sattar, AIR 1948 Nag 183
79 Ameer Ali, Mohammedan Law Vol. I, p. 391
80 Advocate General v. Yusufali, 24 Born LR 1060
81Biba Jan v. Kalb Hussain, ILR (1903) 31 All 136
82
Aziz Unnisa v. SirdarAli,AIR 1927 Born 387
83 Sunni CentralBoard of Wakfs v. Sirajul,AIR 1954 All 88; Gulam Ali v. Sultan Khan, AIR 1967 Ori 55
84 Advocate General v. Yusufali, 24 Born LR 1060
85 Ameer Ali, p. 39; Syed Mohammed Labbai v. Mohammad Hanifa, AIR 1976 SC 1569
86 Sattar Ismail v. Hameed Sait, AIR 1944 Mad 504
the core principles of Islam or at least not justified after the commencement of the Constitution 87
In the second category are grouped, wakfs for the purpose of colleges and provisions for
teachers 88 , starting of schools, colleges or hospitals 89 ; endowing a teacher for a school9°;
9
teaching
91
of girls, preaching of sermons and occasional entertainment of holy men
The third category includes works of general utility such as construction of aqueducts,
bridges, caravan serais, sinking of wells or construction of tanks92 .
In the fourth category there are wakfs for distribution of food or alms to the poor93
meeting the funeral expenses of the poor 94; donation to servants 95 and maintenance of poor
96
relations and dependents
In thefifth category there are wakfs to help the poor to perform Hajj 97 ; free boarding
house for pilgrims at Mecca 98; upkeep of hujra (guest house) 99; and performance of Hajj every
100
year out of the income with ultimate object to the poor in perpetuity
In contrast to the above valid objects, dedication of property by way of wakf for running
a gambling house or wine shop1 0 1 ; construction of temple ; and in favour of the rich
exclusively, or for the benefit of utter strangers or lawyers or enemies becomes invalid 103
Filtering out the invalid ones and protecting the valid ones is the notable approach of the law that
enhances creditworthiness of the institution of wakf and adds to the competence of Islamic
philanthropy to promote social justice. In case of co existence of valid and invalid objects of a
wakf, the whole dedication will be reserved for promotion of valid objects only 1 4 . Similar
approach can be found when the charitable object fails because of impossibility of execution and
an object nearer to the original one can be taken for charitable act, as per the view of Sir Abdur
Rahim 105 . This reflects acceptance of the doctrine of ey pres. Further, when the primary or
intermediate object fails, instead of avoiding the wakf, such failure only accelerates the ultimate
87 Luchimipal v. AmirAlam, ILR (1882) 9 Cal 176 based on Baillie I. 566

88 See supra ch. 3
89 Ram Charan v. Fatima,ILR (1915) 42 Cal 933; 30 IC
90
686
Mariam Bai v. JaffarAbdul Rahim, AIR 1973 Mad 191
91 Hidaya 240; Abdul Rafey v. Banni Begum, 15 IC 36
92 Satdas v. Ram Bai, 20 IC 275
93 Hidaya 240; Baillie II. 125
94 Hashim Haroon v. Gonnsali,AIR Sind 137
95 FatimaBibi v. Advocate GeneralBombay, ILR (1881) 6 Born 42
96Abdul Wahab v. Mst. Sughra Begam, AIR 1932 All 248; ILR (1932) 54
All 455
97 Mukarram v. Anjuman-un-Nissa, AIR 1924 All 223; ILR (1923) 45 All 152
98 Hidaya 240
99 Mohammed Yusufv. Mohammed Sadiq, AIR 1933 Lah 501; ILR (1933) 4 Lah 431
100 YusufKhan v. Misal Khan, 73 IC 99
101 Hidaya 240; FatimaBibi v. Advocate General,ILR (1881) 6 Born 42; Kuttaya Rouathan v. Mammana Rauthan,
35 Mad 681
102 AAA Fyzee, p. 236
103 Baillie 1 560
104 Baillie 1566; Ismail Haji v. UmarAbdullah, AIR 1942 Born 155
105 MahasarHussain v. Abdul, ILR 33 All 400
application 106 . In all these circumstances, courts engage in scrutiny, identification and analysis
of the charitable purpose.
The belief that wakf is an approach to God desists wakf from failing on account of mere
vagueness or uncertainty in the statement of wakf objects 0 . When a wakf authorizes mutawalli
to choose amidst several objects or in favour of a particular object whomsoever he pleases, under
the Sunni law the wakf is valid 1. But Shia rule is to the contrary 9.Judicial decisions are in
favour of upholding the wakf and allowing the benefit to flow to the poor' 1. Again, the court's
engagement in purpose discourse is manifest.
The problem of secular wakf has posed challenges of purpose scrutiny. Under the
conventional Muslim law there can be dedication of a public character for the benefit of not only
Muslims but also non-Muslims and for the benefit of both the poor and the rich; but dedication
exclusively for the benefit of the rich is prohibited". In Nawab Zain case' 2 the Supreme Court
examined the validity of wakf endowed by Nizam of Hyderabad for the maintenance, upkeep
and support of public religious institutions, for the advancement of religion in the State and for
educational purpose. The court distinguished wakf from secular trust and held the Nizam's
endowment as not constituting wakf. The Madras High Court followed this rule and observed,
"The essential characteristic of a wakf under the Muslim law is that if it were to be religious it
should only for the benefit of the members of the Muslim community and if it were to be secular
the charity should be to the poor alone",1 3
In 1964, the Wakf Act 1954 was amended, and for the words "established for the benefit
of the Muslim community", the words "sanctioned by the Muslim law" were substituted 1 4 . As a
result, the scope of beneficiary is enlarged. In spite of the change, the practice of secular wakf is
not adequately accommodated.
The Karnataka High Court in a case decided in 1982 held that a secular charity under
Muslim law should be to the poor alone and since the property in this case was dedicated for the
travellers irrespective of religion and position of persons, it was not a wakf 5 . The case can be
contrasted to a Madras case of 1973 where the benefit of charity under a wakf went to both
Muslims and non-Muslims, the court regarded it as valid wakf in view of change in meaning of
106 "If, however, the specified objects be limited or happen to fail, but a general charitable intention is to be inferred
from the words of the grant, the wakf will be good and the income or profit will be devoted for the benefit of the
poor, and in some cases, to the objects as near to the objects which failed, as possible." Sir Abdur Rahim,
Muhammadan
107
Jurisprudence, 1911 Ed. p. 50 cited by S.A. Kader, p. 71.
AmeerAli, Mohammedan Law, 1985 Ed. Vol. 1. p. 414
108 Ameer Ali, Mohammedan Law, 1985 Ed. Vol. II.
p. 511
109 Fatwai-Alamgiri, Baillie 1 588
110 Sharayat-ul-Islam cited by S.A. Kader p. 68

I1 IAbdul Sakra v. Abubakker, 54 Bom 358; AAA Fyzee p. 237
112S.A. Kader p. 67
113 Nawab Zain Yar Jung v. Directorof Endowments, AIR 1963 SC 985
114 Kassimiah CharitiesRajagiri v. Madras State Wakf Board, AIR 1964 Mad
18
115 The Wakf Act 1995 retains this position
the term 'beneficiary' after 1964 116
Apropos, it can be said that the Madras view is promoting the spirit of the amendment
and the generous outlook of Islamic law 7 . The approach of segregation in providing benefit,
even when wakf had egalitarian approach, is not in consonance with social justice perspective of
philanthropy. In fact, section 104 of the Wakf Act allows management of property given or
donated by any person not professing Islam for the purpose of mosque, idgah, dargah, kanga,
graveyard and choultry in the same manner as that of wakf. Reciprocating a similar approach
towards persons not professing Islam is in fitness of things and promotes social harmony,
cultural cooperation and syncretism.
THE INCLUSIVE COMPONENTS OF WAKF -
The second part of the definition of wakf contemplates inclusion of (i) wakf by user; (ii)
Mashrut-ul-khidmat;and (iii) wakf-alal-aulad. The factor of purpose is central to the discourse
on each limb.
(i) Wakf by user - In the absence of evidence about express dedication the factor of
user establishes wakf. According to S.A. Kader, "The origin of many of these
institutions (mosque, graveyard, Khangah, Dargah and Takia) is lost in antiquity and
by immemorial user and treatment by the members of the muslim public, the lands on
which they are situated, are presumed or inferred to have been dedicated by the
owners for the particular purposes and they are impressed with the character of
wakfs." 1' 8 As viewed by E.S. Venkatramiah J, for applying the principle of lost grant
"there must be satisfactory evidence to show that the grant itself was lost in antiquity
and the evidence about it was not available and further that the
119
property was being
used as wakf property for a long time without interference."
Allowing a presumption in favour of mosque used for prayer by Muslim public for a long
number of years, the Supreme Court in Syed Mohammed observed, "It is also well settled that
where a mosque has been in existence for a long time and prayers have been offered therein,
the Court will infer that it is not by leave and 1licence
20
but that the dedication in complete and
the property no longer belongs to the owner."
User of land for the purpose of burial of dead by numerous members of Muslim public
over a long number of years in multiplying instances without any contest or objection
constitutes wakf by user 121 . In contrast, private graveyards contain graves of founder and of
122
members of his family . The revenue records and other documents may also support the
116 Karnataka State Board of Wakfs v. Mohammad Nazee Ahamed, AIR 1982 Kant 309
117 Mariambaiv. Mohamed Jaffer, AIR 1973 Mad 191
118 S.A. Kader also prefers this approach. See S.A. Kader supra n.4
p.66
119 Ibid. p. 72
120 Mysore State Board of Wakf v. Laksmiah Setty, AIR 1974 Kant
28
121 Syed Mohammed Salie Labbai v. Mohamed Hanifa, AIR 1976 SC 1569
122 Qudir Baksh v. Sadulla, AIR 1938 Oudh 77; Shaik BashirAhmed v. Shaik Abdul Jabbar,AIR 1968 Pat 29
factor of wakf for public graveyard 123 . The courts look into these factors in distinguishing
124
between public and private wakf
When successive sajjadanashinshold a land for kankah for generations without reversion
to the natural heirs, wakf by user is established 1125 . Similarly, wakf for dargah and takia can
126
be presumed on the basis of long user 1 . When Maharaja of Tanjore granted some land to a
Muslim for religious purpose, and the land was possessed and managed by the successors for
nearly 300 years as Hazarat Takia, it became wakf by user although originally it was not
127
wakf 12 .
The permanent character of wakf by user is made clear in the definition which provides
that ceasure to use will not extinguish wakf. Hence, disused graveyard or ruined mosque
cannot be divested by non user and will continue in the same nature 128
(ii) Wakf by Grants - Grants including Mashrut-ul-Khidmatfor any purpose recognized

by Muslim Law as pious, religious or charitable also constitute wakf. It contemplates
support to services of kazi, pesh-imam, mujawar or fakir. Courts have diverse
approaches on the issue whether the grantor should be professing Islam in order that
grant could be treated as wakf under section 3 (r) (ii). Although initially a Single
Judge Bench of Madras High Court 12 9 dispensed with the requirement of grantor to be
professing Islam as the inclusive clause (ii) was not governed by main clause, three
Divisional Benches in subsequent cases have insisted that the grantor should be
professing Islam in order that the grant be considered as wakf13 0. The Divisional
Benches reasoned that after introduction of section 66-c in 1964 which is
predecessor of the present section 104 under the 1995 Act and which provides for
deeming application of wakf law, such inclusion would produce surplusage or render
the provision otiose. S.A. Kader argues that such an approach disregards the fact that
section 66-c (or 104) deals with grants of different type other than for service and that
the court's approach deviates from canon of interpretation of inclusive definition 31 .
In contrast, the Divisional Bench of Andhra Pradesh High Court has ruled that in the
case of grants for services under clause (ii), it is not necessary to prove that the grant
was made by a person professing Islam since that requirement is absent in clause (ii)
whereas the words "for any purpose recognised by Muslim law as pious, religious or
charitable" were common in both main clause and inclusive clause (ii). 132 Apropos it
123 Ali Mohamed v. Ali Akbar, AIR 1928 Lah 58; Mohamed Karim v. Abdul Gaffar, AIR 1964 MP 227; Abdul
Rahman v. Murugappa,AIR 1924 Mad 577
124 Ballabh v. Noor Mohamed, AIR 1936 PC 83
125 Syed Mohammed Salie Labbai v. Mohamed Hanifa, AIR 1976 SC 1569
126
Meram Bakh v. Gulam Nabi, 14 Lah 624
127 Nazira v. Sukhdarshan Lal, 1936 All U 651
128 Syed Edullah Shah v. Madras State Wakf Board, AIR 1966 Mad 439
129 Abdul Gupta v. Rahmat Ali, AIR 1930 Oudh 245; Hidaya 240 Baillie I. 606; Syed M.S. Labbai v. Md.
Hanifa,
AIR 1976 SC 1569
130 SyedAnwar Basha Sahib v. JamiaMasjid Karur, (1966) 1 MU 379
131 C.S. Peeran Shahib v. Madras State Wakf Board, (1969) 1 MU 425 (DB); Madras State Wakf Boardv. Kazi
Moidun Sheriff, AIR 1974 Mad 225; Tamil Nadu Wakf Board v. Syed Imam Sahib, AIR 1983 Mad 297
132 S.A. Kader, pp. 80-82
can be stated that since content of section 104 (or section 66-c in the earlier Act) is
different from that of grant burdened with condition of service, the Andhra Pradesh
High Court's approach is more convincing from the perspective of purpose of grant.
Otherwise, grants made by the non-Muslims for services recognized133by Muslim law
as pious, religious or charitable will fall outside the legal protection . Since
philanthropy transcends religion, accommodation of mutual assistance gives strength
to the institution of wakf as purposive instrument.
(iii) Wakf-alal-aulad- Traditional Muslim law recognized family benefaction through

wakf as an excellent charity and regarded it as more pious than giving alms to
beggars 34 . Wakf-alal-aulad connotes wakf in favour of the family, children and
descendants of the settler.135 But judges in colonial era repeatedly held that the
pretended dedication by the property owners to Almighty God to secure for their own
use, protect it forever from present and future creditors and from alienation in
perpetuity for benefiting them and their successors was not valid 36 . They viewed
that aggrandizement of family interest rendered the dedication to the poor, for the
religious, pious or charitable objects illusory, and that conferring a small, uncertain
and remote benefit was not promoting wakf objective. No doubt, they looked through
the glass of English common law of trust. This caused resentment and led to the
passing of the Mussalman Wakf Validating Act 1913. Later, retrospective effect was
also given to the law through an amendment in 1930 to overcome the difficulty
137
caused by a judgment 7 . These enactments protected wakfs benefiting members of
the family subject to the condition that ultimate benefit shall devolve upon the poor.
In cases of Wakf-alal-aulad also the property dedicated vests in God Almighty
according to all schools except the Shia school 38 . The Supreme Court has also
139
recognised this legal position . Failure of intermediate beneficiaries accelerated
benefit to the ultimate beneficiary.
Post 1930, the Bengal Wakf Act 1934 treated wakf-alal-aulad separately from that of
wakf for the purpose of wakf commissioner's power of supervision. Wakf-alal-aulad was
defined as wakf under which not less than seventy five percent of the net available income is for
the time being payable to the wakif for himself or any number of his family or descendants 140
Following the mainstream development of 1913 and 1930, the Wakf Act 1954 included
within the ambit of wakf, a wakf-alal-auladto the extent to which the property is dedicated for
any purpose recognised by Muslim law as pious, religious or charitable. The Uttar Pradesh
133
Andhra Pradesh Wakf Board v. Bowlat Bibi, AIR 1983 AP 57
134 S.A. Kader p. 82
13- Quran, 2:177 "It is righteous to spend on your substance out of love for Him, for your Kin, orphans, the needy,
the wayfarer, for those who ask and for the ransom of slaves"; 2:215 "Whatever wealth ye spend in charity is good
is for parents, kindred and orphans and those who in want and wayfarers."
136 Ameer Ali, Mohammedan Law 1985 Ed. Vol. I pp. 215-230. Samiul Hasan, p. 201
137 Russomoy Dhur Chowdhury v. Abut Fata Mohamed, ILR (1891) 18 Cal 399; Bikanimia v. Shukhlal, ILR
(1893)
20 Cal 116 FB, affirmed in appeal by Privy Council in Abul Fata v. Russomoy Dhur Chowdhury, (1894) 221 A 76
138 Khajan Soleman v. Nawab Sir Salimullah, AIR 1922 PC 107 ILR 49 Cal 820
139 Koran 17:28 "And render to the kindred their due rights, as also to those in want." Also see S.A. Kader, p. 97
140 Thakur Mohd. Ismail v. Thakur Shabir Ali, AIR 1962 SC 1722; MoquathaRaza v. Joint Director
of
Consolidation of U.P., AIR 1970 All 509
Muslim Wakfs Act 1960 had originally included wakf-alal-auladwithin wakf without any rider.
But in 1971, the rider was added by an amendment.
In 1984, through an amendment, the rider 'to the extent ..... was removed from wakf-
alal-aulad,thus giving scope for revival of full fledged traditional rule. But this amendment was
not given effect 4 1. The Wakf Act 1995 reproduces the 1954 version in so far as wakf-alal-aulad
is concerned. The overall thrust of statutory development is to avoid aggrandizement of family
benefit at the cost of public interest. A realization that the evil of perpetuity in devolution of
property within a family blocks the opportunity of transfer; obstructs economic dynamism; gives
scope for vexed litigation; and keeps the poor in anxiety and a state of unfulfilled expectation,
has moulded this development 142
Since the provisions on wakf-alal-auladin the 1954 Act (as it originally stood) and the
Wakf Act 1995 are similar, the interpretation given by the judiciary to this clause is relevant to
understand the present legal position. The Patna High Court in Asma JafarImam v. State of
Bihar1 4 3observed, "If it is held that all wakfs-alal-auladand every part of them are included in
the definition of 'wakf, then the words 'to the extent to which the property is dedicated for any
purpose recognised by Muslim law as pious, religious or charitable' will become surplusage and
redundant. It is a settled canon of interpretation that a statute is not supposed to use words
without a meaning and it is better to adopt the construction which would give some effect to the
words, rather than that which will give none.
In a series of cases, the Madras High Court had ruled that the Wakf Board has
jurisdiction to claim contribution from the wakf properties or to give/deny permission for
transfer of wakf property only to the extent the income or property is set apart exclusively for
religious, charitable and pious purposes 144
In T.N. Wakf Board v. M.E. Musuee, 145 the Division Bench of Madras High Court
elaborately dealt with the definition clause of wakf-alal-aulad. The case involved dedication of
entire income from property to the benefit of the settler's family, children and descendants and
the claim of the poor Muslim would come only in the event of the entire line in the family
becoming extinct, which is a rare chance. According M.M. Ismail J., who delivered the
judgment, this was a case of wakf-alal-aulad simpliciter and did not come within the purview of
the clause. He distinguished it from wakf-alal-auladcomposite where the portion of the income
is dedicated to the poor or for other pious, religious or charitable purpose recognized by Muslim
law, and the remaining portion going to the benefit of wakif, his family and children. In the latter
case, the Wakf Act would be applicable. There are academic opinions to the effect that since
141An application of this provision see Anis FatimaBegum v. Board of Wakf AIR 2004 Cal
91
142S.A. Kader considers this as unfortunate, arising out of pressures from vested interests, and
sacrificing of public
interest at the altar of 'aggrandizement of a family'. S.A. Kader, op cit p. 101. The present author disagrees with
this view, and considers the mainstream development of legislation as appropriate.
143Abu FataMohamed v. Rasamaya Dur Chowdhuri, ILR (1893) 20 Cal 116; Lord Hobhouse's view on behalf of
Judicial Committee of Privy Council; AAA Fyzee, Outlines of Muhammadan Law 4th Ed. p. 277 Daniel Latifi, op.
cit.
144 AIR 1965 Pat 48
145Mohamed Mahin v. Madras State Wakf Board, (1967) 1 MU 65; GMA Bhamia v. Madras
State Wakf Board,
(1968) 1 MU 410; Madras State Wakf Board v. MohamedMahin, (1971) 84 LW 261
Islam recognizes wakf to family members as an act of charity wakf-alal-aulad simpliciter should
also be included within wakf 146 . This proposition is not convincing from the perspective of
legislative intention, true purpose of charity and the need for avoidance of abuse. It is to remedy
the denial of all types of wakf-alal-aulad that the Wakf Validating Acts provided for limited
recognition of wakf-alal-aulad only to the extent of piety, charity and religiousness of dedication.
The attempted change in 1984 to revive wakf-alal-aulad simpliciter also; the opposition to that
change; non-implementation of the change; and the ultimate restoration of the pre-1984 position
in the Wakf Act 1995 point out that the legislation intended to distinguish between the
simpliciter and composite types of wakf-alal-aulad. Further, the real intention of charity cannot
be served when practically, family members are the exclusive beneficiaries and benefit to the
poor is nominal and misleading. Further, as admitted in academic writings and judicial gloss, the
feature of perpetuity of ownership is a factor of abuse to defeat the claims of creditors, land
reform laws and rules of succession 147 . Hence the Patna High Court's stand is sound. 1 48
Acceptance and application of the Patna ruling in subsequent judgments of other High Courts
and the Supreme Court prove the validity of distinction and logical limitation of Wakf-alal-aulad.
49
In Tamil Nadu Wakf Board v. LarabshaDargaPanrutti1 dedication of a small portion
of income of a property to maintain darga and reserving the rest of the income for the benefit of
family members through the system of hereditary mutawallis was dealt by the Supreme Court in
appeal. The Court upheld the High Court's decision that the dedication was not a public wakf
and that the Wakf Board had no jurisdiction to appoint mutawallis for the said Darga.
The distinction between private and public wakf, the method of identifying them and
consequences of such distinctions under laws governing wakf, transfer of property, succession,
estate acquisition, taxation etc. have attracted the attention of the courts. These involve vexed
questions of facts and law. If the wakf is for the aggrandizement of the family and the dedication
to religious and charitable purpose is illusory, neither the wakf law nor the specific law like
Oudh Estates Act which abolishes Talukdari would protect from the operation 1 50
of the law as laid
down by the Supreme Court in Thakur Mohd. Ismail v. Thakur Sabir Ali.
Laws providing for extinction of intermediaries in land holding sometimes provide

for exceptions in case of exclusive use for religious or charitable purpose. In Fazlul Rabbi
Pradhanv. State of West Bengal151 , where a very small amount of annual income was dedicated
for charity and religious purpose and major chunk of the income was for the benefit of family
members for generations, the Supreme Court declined to give effect to wakf, and the overriding
146 AIR 1979 Mad 231 dissent of Ameer Ali, J. in Rasamaya Dur Chowdhuri v. Abul Fata Mohamed, ILR (1891) 18
Cal 399
147 S.A. Kader, p. 1011; but the views of Prof. Saxena, AAA Fyzee and Daniel Latifi contradict the proposition.
Saxena, Muslim Law 4th ed. P. 494; AAA Fyzee, Outlines of Muhammedan Law 4th ed. p. 277; Daniel Latifi, 'Law
of family wakf: Need for Reconsideration' in Islamic Law in Modern India cited in S.A. Kader
148 Views of Prof. Saxena, AAA Fyzee and Daniel Latifi (supra) and the Privy Council judgment in Abu Fata
Mohamed v. Rasamaya Dur Chowdhuri, ILR (1893) 20 Cal 116
149 Mohamed Mohin v. Madras State Wakf Board, (1967) 1 MU 65; GMA Bhamia v. Madras State Wakf Board,
(1968) 1 MU 410; Madras State Wakf Board v. Mohamed Mahin, (1971) 84 CW 261; MoquattarRazav. Joint
Director
150
of Consolidationof U.P., AIR 1970 All 309
AIR 2008 SC (Supp) 1237
151 AIR 1962 SC 1722
statutory measure of land reforms was emphasized. According to Hidayatullah J., who delivered
the judgment, the effect of Wakf Acts in limiting the Wakf-alal-aulad to the extent of religious,
charitable or pious objects was to exclude the family benefit from the purview of the Wakf Act.
When there is mingling purposes - charitable with family benefit, religious with secular - the
deeds as they stand shall be taken into consideration.
In Anis Fatima Begum v. Board of Wakf 52 the Calcutta High Court declined to allow
mutawallis to unilaterally partition the wakf property into two portions, one to be utilised for
religious or charitable purpose and the other for purely private purpose. Altamas Kabir J. for the
court viewed that dedication of property for secular purpose was subject to regulation by the
Central Government under section 96 of the Act.
The Allahabad High Court in Central Wakf Board v. Hasan Jehan1 53 declined to
apportion the wakf property for religious and secular purposes since in the circumstance of the
case there was no indicator to suggest the extent of property to be utilized for these two distinct
purposes. The Division Bench disagreed with the Single Judge on the point of distribution on
the basis of extent of income allocated in the wakf deed. In Abdul Rauf v. Shamsul Haq154 a
wakf constituted in 1932 in favour of family members with ultimate benefit reserved for the
poor, or for religious or charitable purpose was upheld as promoting the cause of charity.
An inference can be drawn from the above cases on wakf-alal-aulad to the effect that
courts involve in purpose scrutiny to identify whether the dedication is for family
aggrandizement and whether the charity objective is illusory, insignificant or indefinitely
postponed. Such inquiry is in keeping with the spirit of the law and avoids abuse of the wakf
institution to escape from the obligations imposed under socio economic reform laws. Primarily,
charity is an other-regarding voluntary action, and not born out of legal duty. Maintaining
oneself, or one's aged parents or kindred is a legal duty and can not be confused with moral duty
of charity. Judiciary has traversed the path of investigating the true purpose of dedication in
order to exclude pure case of family aggrandizement. On main clause of the definition and its
inclusive components the inquiry about purpose has enabled the legal development to adhere to
the laudable object of wakf as a purposive legal enterprise.
LEGAL REGIME FOR MANAGEMENT OF WAKF
Good governance of wakf requires meticulous steps for purpose compliance, sincere use of
funds, protection of property from loss or unjustified alienation, accountability of the manager
and dedication social service. The early Islamic rulers did not assume the responsibility of
supervising the wakf administration.15 5 Autonomy of the wakf with private independent
administrators was the order of the day in the beginning. Gradually, community or group
supervision came into existence.156 Later, control by the government agency became the general
15 2
AIR 1965 SC 1722
153 AIR 2004 Cal 91
154 AIR 1977 All 18
155 AIR 1969 All 35
156 Samiul Hasan, op cit pp. 211 - 212
measure. Co existence of these factors in the management of wakf became a general feature in
course of time, especially in 19th century in the Middle East"' .
In India, the Mussalman Wakf Act 1923 initiated a modest legal framework for better
management of the wakf property and for ensuring the keeping and publication of proper
accounts in respect of such property. It imposed obligation upon mutawalli to furnish particulars
relating to wakf, provided for publication of such particulars in court house, mandated the
mutawalli to furnish the accounts and get them audited. The Act did not contain elaborate
provisions for supervision by the Board and hierarchy of State officers.
The provincial law of Bengal, the Bengal Wakf Act, 1934 introduced an elaborate legal
framework governing wakfs in Bengal. Survey of Wakfs by State Government, establishment of
Wakf Board, appointment of hierarchy of Commissioners, recognition of various functions of the
Board and Commissioners, enrolment of wakfs, provisions mandating accounting and auditing,
bar to unauthorized transfer of property, recovery of property transferred in contravention of law,
mutawalli's rights and duties and disciplining of mutawalli are the measures under this Act to
promote purpose compliance and good governance. The Act continued in operation until it was
repealed by the Wakf Act 1995 (section 112 (2)). While the Bengal Act had larger social
purposes, specific function of the Commissioner in "creation of an Education Fund for the
education of poor meritorious boys and girls professing Islam reading in schools, colleges and
vocational institutions recognized by the State Government" speaks about the social dimension
of and expectation about wakf s functioning.
The Uttar Pradesh Muslim Wakfs Act 1960 provided for survey of wakfs, establishment
of Sunni and Shia Boards of Wakfs, functions of the Wakf Boards, registration of wakfs, state's
control over Wakf Board, accounts, audit and mutawalli's duties. Inclusion of a clause in 1971
by an Amendment, providing for Board's function to direct the utilization of the surplus income
of wakf consistently with the objects of the wakf reflects the commitment to the policy of
purpose compliance. Separate provisions for Shia and Sunni wakf speak about accommodation
of legal pluralism and social reality. The U.P. Act continued in operation until it was repealed by
the Wakf Act 1995.
The Wakf Act 1954, a central law, was replaced by the Wakf Act 1995. Concerning
better governance and proper management of wakfs through appropriate supervision by the
State, the Act of 1995 has employed suitable policies, procedures, institutions and control
mechanisms. How these are orienting towards purpose compliance and tend to make the wakfs
purposeful social enterprise can be analysed as below.
BRINGING THE WAKFS WITHIN THE REGULATORY REGIME OF LAW
Two methods employed in bringing the wakfs to the application of the Wakf Act are survey and
registration. Survey involves State Government's task of appointing a Commissioner and getting
report from the latter about number of Shia and Sunni wakfs, nature and objects of each wakf,
gross income from them, amount of land revenue, expenses incurred, mutawalli's remuneration
157 Ibid 212

and other details (Sec. 4). In case of disputes about nature of property as wakf property, the
Wakf Tribunal has jurisdiction (Sec. 6 and 7). The advantage of survey method is that when
voluntary disclosure and registration may not always occur, survey can bring to light suppressed
information. In a country where legal awareness and legal culturism are not high, but prejudice
and suspicion inhibit disclosure, survey serves the purpose of law.
There is a mandatory requirement for registration of wakf, whether created before or after
the commencement of the Act, which shall be initiated by mutawalli. The application for
registration shall describe the wakf property, inform about gross annual income from such
property, expenses and amount set apart for purely religious, charitable and other purposes and
the salary of mutawalli (Sec. 36). The State Wakf Board shall maintain wakf register and keep
information (Section 37).
The information collected through above methods help the beneficiaries in knowing
about the wakf and availing its facilities. It avoids abuse of wakf property by mutawalli by
compelling to give information.
DEMOCRATIC COMPOSITION OF CENTRAL WAKF COUNCIL AND STATE WAKF BOARD
The Act contemplates Central Wakf Council to advise the State Wakf Board on matters
concerning their functioning and the due administration of wakfs. (Section 9) The CWC has
significant democratic composition. The Union Minister is in charge of wakfs as Chairman of
CWC. The members of CWC include: (i) three members representing Muslim organizations of
all India character; (ii) four persons of national eminence; (iii) three members of the Parliament
(2 from House of People and 1 from Council of States); (iv) Chairpersons of three SWB by
rotation; (v) two persons who have been judges of the Supreme Court or High Court; (vi) one
advocate of national eminence; (vii) one person representing the mutawallis of wakf whose
annual income is above Rs. 5 lakhs; and (viii) three eminent scholars in Muslim law. The term
of office of members is governed by rules enacted by the Central Government. However, CWC
is only an advisory body. Still, its deliberations and directions are expected to carry significant
weight to influence working of SWBs. It is the SWB and its CEO who play a crucial role in
supervising wakf administration. The SWB shall consist of (a) a Chairperson; (b) one/two
members each from the category of Muslim MPs from the State, Muslim MLAs, Muslim
members of Bar Council of the State and mutawallis of wakfs having more than Rs. One lakh
annual income; (c) one/two members representing eminent Muslim organisation of the State; (d)
one/two members representing scholars in Islamic theology; and (e) an officer of the State
Government not below the rank of Deputy Secretary. Regarding (b) the selection shall be by
vote, and the rest by nomination; and the tenure shall be for five years. Disqualifications operate
in case of infancy, insanity, insolvency and conviction for offences involving moral turpitude.
The SWB shall periodically meet and take decisions (Section 7). The State Government shall
appoint CEO, who shall be a Muslim, in consultation with the SWB. The CEO shall implement
the orders and decisions of the SWB. The management of individual wakf shall be done by the
mutawalli of the concerned wakf or by the committee of management of the wakf.
The above structure and composition of the CWC, SWB and CMW reflect the democratic
principle of representation. The decisions arising from such deliberative process help in
identifying and implementing the purpose of the wakf Although people's direct participation is
not accommodated, through representative democracy their interests are taken care of. Compared
to the law governing Hindu charitable institutions where bureaucratic regulation is set into
service, the position obtaining in the matter of wakf reflects space for democratic representation
and accountability.
POWERS AND FUNCTIONS OF SWB AND CEO : PURPOSE COMPLIANCE PERSPECTIVE
The Wakf Act 1995 provides for vesting of power of general superintendence of all wakfs in
SWB and States, "it shall be the duty of the Board so to exercise its powers under this Act as to
ensure that the wakfs under its superintendence are properly maintained, controlled and
administered and the income thereof is duly applied to the objects and for the purposes for which
wakfs are created or intended." (Section 32) (1). The proviso also obligates SWB to act in
conformity with the directions of the wakif, the purposes of the wakf and any custom or usage of
the wakf as per Muslim law.
The above provision makes SWB an engine of purpose fulfillment. Section 32 (2)
elaborates particular functions of the Board on above lines: to maintain record as to the origin,
income, object and beneficiary of wakf; to ensure spending of income to the wakf purpose; to
utilize surplus income consistent with the objects of wakf keeping in mind diversity of schools
like Shia and Sunni; to scrutinize and approve budgets and arrange for auditing of accounts; to
take measures for recovering lost properties of wakf and sanction transfer of immovable property
in accordance with the Act; to administer wakf fund; to inspect and investigate accounts, records
and documents; and to appoint, supervise and remove mutawalli. Law also allows development
of wakf land as shopping centre, market, housing flats and the like, and handover the developed
properties to mutawalli for generating income. (Section 32 (4) & (5) & (6))
The CEO and other EOs appointed by SWB shall exercise such powers and discharge
such duties as pertain to the administration of the wakf property, and shall exercise those powers
and discharge those duties under the direction, control and supervision of the Board (Section 38).
The SWB has the power of appointing mutawallis whenever there is vacancy.
MUTAWALLf'S DUTY TO COMPLY WITH PURPOSE
Mutawalli has a responsible and important role in promoting purpose compliance in the
functioning of wakf. He has duty to carry out the directions of the SWB; to furnish returns and
to supply information periodically; to allow inspection of wakf properties; to discharge public
dues; and to do other acts lawfully required under the Act. (Sec. 50) Mutawalli may be removed
by the SWB from his office if he incurs any disqualifications like insanity, insolvency,
conviction of criminal breach of trust etc.; if he has failed in maintaining regular accounts; if he
is interested in lease of wakf property; if he continuously neglects his duties, misappropriates or
fraudulently deals with the property of the wakf; and if willfully disobeys the lawful orders of the
Central Government and SWB (Sec. 64). Penalty of fine is prescribed for mutawalli's failure to
register a wakf, furnish information, allow inspection of wakf property, deliver possession of
wakf property, carry out the directions of SWB, discharge public dues and to do other lawful
duties under the Act (Sec. 61). Failure to apply for registration with a view to concealing the
existence of wakf and deliberate furnishing of false and misleading information attract
punishment of imprisonment for a period of six months (Sec. 61 (2)). Thus law compels
Mutawalli to carry out the objectives of the wakf efficiently.
PROTECTION AND RECOVERY OF WAKF PROPERTY
Since property is the essential resource for the functioning and fulfilment of purpose of the wakf,
the Wakf Act 1995 has given ample attention for safeguarding the wakf property. According to
section 51 alienation of the wakf property by any gift, sale, exchange or mortgage shall be void
unless such alienation is effected with the prior sanction of the SWB. There is no scope for
alienating mosque, dargah, khangah except in accordance with law. The procedure for prior
sanction by SWB is elaborate: publication in the official gazette about the proposed transaction
and calling for objections and suggestions; considering the objections and suggestions; and
formulating opinion that such transaction is necessary and beneficial to the wakf, that it is
consistent with the objects of the wakf and that the consideration (value) is reasonable and
adequate. Sale shall be by way of public auction and be confirmed by SWB.
In case of transfer of property in contravention of section 51, SWB may send a

requisition to the collector within whose jurisdiction the property is situate to obtain and deliver
possession of the property to it. (Sec. 52 (1)). On receipt of such requisition, the collector shall
pass an order directing the person in possession of the property to deliver property to the Board
within a period of thirty days (Sec. 52 (2)). In case of disobedience the collector shall obtain
possession of the property by using necessary force. (Sec. 52 (5)).
Purchase of property by wakf shall also be on the basis of prior sanction of the SWB.
While giving such prior sanction, the SWB shall ensure that such acquisition is necessary and
beneficial to the wakf and that the price is reasonable (Sec. 53).
Encroachment of wakf property is a serious problem threatening the efficacy of wakf

institution. Section 54 empowers the CEO, after considering either on complaints by others or
on suo moto realization that there has been encroachment of wakf property, to cause to be served
upon the encroacher a notice specifying the particulars of the encroachment and calling him to
show cause before the stipulated date as to why an order requiring him to remove the
encroachment before the stipulated date shall not be done (Section 54). After considering the
objections and after conducting an inquiry, if the CEO is satisfied that there has been an
encroachment, he may require the encroacher to remove such encroachment and deliver
possession of the encroached property to the mutawalli (S. 54 (3)). In case of non recovery of
property by the said means, the CEO may vacate the property, evict the encroacher and deliver
possession thereof to the concerned mutawalli (S. 55).
Rajinder Sachar Committee has reported that the problem of encroachment of wakf
property is widespread and has considerable adverse impact upon the institution of wakf.
FINANCIAL CONTROL ON WAKF: BUDGET, ACCOUNTS AND AUDIT

SWB has a great role in guiding, monitoring and supervising the financial activities of wakfs
ranging from budget proposal to audit. Mutawalli of every wakf shall prepare annual budget
proposal for net financial year estimating the receipts and expenditure and submit the same to the
SWB at least 90 days before the commencement of the financial year for its consideration. The
budget shall make adequate provision for carrying out the objects of the wakf, for the
maintenance and preparation of wakf property and discharge of liabilities. The SWB may give
such directions for making alterations, omissions or additions in the budget as it may deem fit,
consistent with the objects of the wakf and the provisions of the Act (Sec. 44). In case of wakf
under the direct management of the Board (SWB), the CEO shall prepare the budget and submit
to the approval of the SWB. The CEO shall also ensure keeping of regular accounts and be
responsible for proper management of the wakf (Section 45).
Apropos section 44 it can be noted that SWB has power only to give suitable directions,
and the mutawalli has a duty to comply with directions of SWB under section 50. Since SWB
has a composition of responsible representative of the Muslim community, the guidance in the
form of directions to alter, omit or add in the budget is expected to be in the best interests of the
community, which the individual mutawalli might not have properly perceived. Hence, it cannot
be called as emasculating the freedom of the mutawalli or wakf.
The requirements of keeping the regular accounts of wakf by mutawalli and annual
submission of the accounts to SWB before the 1 st day of May in proper form (Sec. 46) provide
protection against financial abuse or mismanagement. The SWB shall get the audit of such
accounts done in appropriate manner by the SWB's auditor or by the auditors enlisted by the
State Government depending upon the extent of annual income (Section 47). The auditor shall
specify in his report, the facts of irregular, illegal or improper expenditure or failure to recover
money or other property caused by neglect or misconduct of any person and identify the names
of persons responsible for such deviance (Sec. 47 (2)). The SWB is required to examine the
auditor's report and may call for the explanation by any person in regard to any matter
mentioned therein (Section 48). The sum due specified in the audit report is recoverable as
arrears of land (Section 49). These stringent measures significantly contribute towards avoidance
of financial abuse by the managers of wakf, and in turn promotes purpose compliance.
MEASURES AGAINST MISMANAGEMENT
When mismanagement of a wakf occurs due to the conduct of mutawalli (by way of negligence
in duty, misfeasance, malfeasance, misapplication of funds, breach of trust or willful
disobedience to the orders of Government or SWB), under section 64 of the Wakf Act 1995 the
mutawalli may be removed and suitable person may be appointed. Where no suitable person is
available for appointment of mutawalli of a wakf or where the SWB is reasonably satisfied that
filling of vacancy of mutawalli is prejudicial to the interests of wakf, the Board may by
notification in the Official Gazette, assume direct management of the wakf for a period not
exceeding 5 years (Sec. 65).
If the supervision or management of wakf is vested in any committee appointed by the

wakif, although ordinarily the committee will continue until the expiry of its term, in case of
mismanagement of the wakf, the SWB may, for reasons to be recorded in writing, by order,
supersede such committee (Sec. 67).
Another measure available for avoidance of mismanagement of wakf is framing the

scheme for administration of wakf. Whenever the Board (SWB) is satisfied, either suo moto or
an application by not less than 5 persons interested in wakf, that it is necessary or desirable to
frame the scheme for the proper administration of the wakf, it may by an order frame such
scheme for the administration of the wakf (Sec. 69(1)). The incumbent mutawalli may be
removed before the commencement of the scheme and a committee may be constituted. The role
of SWB here is comparable to that of a civil court under section 92 of Civil Procedure Code.
One more measure that can be invoked is inquiry relating to administration of wakf. In
response to application filed by any person interested in wakf seeking inquiry relating to the
administration of wakf or on its own motion, if the Board is satisfied that there are reasonable
grounds for believing that the affairs of the wakf are mismanaged, it may hold inquiry or
authorize inquiry into any matter relating to a wakf (Section 70 and 71).
The above measures against mismanagement constitute important tools to ensure good
governance of wakf and fulfillment of its objects. The mutawallis are commanded under the law
to deliver possession of records, accounts and all properties of wakf in case of removal of office
in case of application of any of the above measures (Sec. 68).
FINANCE OF THE BOARD
In a secular democracy the financial burden of administrative supervision of religious bodies by

the State cannot be shouldered by the State. Hence, mutawallis of all wakfs whose net annual
income is not less than five thousand rupees shall annually make contribution of seven percent of
their annual income to the Board for the services rendered by such Board to the wakf. (Sec. 72).
Norms relating to determination of expenditure and income are also laid down.
Creation of Wakf fund out of all moneys received or realized by the Board for the purpose of
meeting the audit and administrative expenses has eased the financial autonomy of the Board.
(Sec. 77).
CONSTITUTION OF TRIBUNALS AND BAR OF JURISDICTION OF CIVIL COURTS
For the determination of any dispute, question or other matter relating to the wakf or wakf
property under the Act the State Government may constitute Tribunals (Sec. 83). Mutawalli,
persons interested in wakf and aggrieved persons may invoke the jurisdiction of the Tribunal.
Tribunals shall hold proceedings expeditiously (Sec. 84). Civil courts are barred from
exercising jurisdiction on any matter which is required to be determined by a tribunal. (Sec. 85).
Failure of a State Government to constitute Tribunal has attracted the attention of the Supreme
Court in a case and directions were issued for constituting the Tribunal. In view of variety and
large member of litigations relating to wakf and the need for expeditious disposal, the idea of
Tribunal is appropriate and would be contributing to the efficacy of the wakfs.
SUPERSESSION OF THE STATE WAKF BOARD
Controlling the control mechanism against defaults and inactions is a significant legal measure
under the Act to promote good governance. Under section 99, the State Government may
supersede the Board if it is of the opinion that the Board is unable to perform or has persistently
made default in the performance of the duty imposed on it by or under the Act or has exceeded
or abused its power or has willfully and without sufficient cause failed to follow directions of the
Central or State Government. The words 'persistently made default' suggest about repeated acts
of default. Solitary instance of default or default unsupported by evidence cannot be ground for
suspension as held in Kerala Wakf Board v. State of Kerala.158
The Central Government has the power of constituting Common Board applicable to two
or more State if the Muslim population of the State is small or the wakf resource is slender.
(Section 100)
REGULATING SECULAR ACTIVITIES
The Central Government may lay down general principles and policies of wakf administration,
coordinate the function of CWC and the Board, and review administration of the secular
activities of wakfs generally for the purpose of regulating secular activities of wakfs.
ATTEMPT FOR REFORM: THE WAQF (AMENDMENT) BILL 2010
The process of legal reform of waqf law is sensitive, and has attracted the attention of various
organizations of Muslim community. 159 Unlike other spheres of Muslim personal law, this area is
subject to various reforms and refinements in order that felt inadequacies and new difficulties
could be properly addressed. Since waqf is not a pure family matter, but involves advantages to
the public and requires state's help in protecting the property and avoidance of abuse, the urge
for better legal arrangement has come to the forefront.
The Wakf Act, 1995 brought uniform wakf law throughout India, introduced democratic
element in the governance and focused on effective methods of purpose compliance. Owing to
socio-economic changes; threats, due to illegal occupation, to security of waqf property; and also
realization of inherent inadequacies of the existing law, some new thinking about reform of waqf
law was made at the policy making circles. On the basis of reports of Rajinder Sachar Committee
(2006) 16 and Joint Parliamentary Committee on functioning of Waqf Boards (2008), the
Ministry for Minority Affairs formulated and moved the Waqf (Amendment) Bill 2010 in Lok
Sabha, where it was passed in May 2010. In Rajya Sabha, it faced objections, after which it was
referred to a Select Committee in August 2010. The Select Committee gave a report in December
201 lafter duly considering various suggestions and objections. It was suggested whether the
158 AIR 1984 Ker 57

159 Muslim Personal Law Board, Zakat Foundation and such other bodies
160 Sachar Committee had recommended for effective empowerment of State Wakf Board to remove
the
encroachment of waqf properties, introduction of women's representation in the Waqf Board, full time Presiding
officer for Tribunal, meaningful role of Central Wakf Council, formation of Waqf development Corporation etc.
provisions of the Public Premises (Eviction of unauthorized Persons) Act 1971 providing for
summary procedure for removal of unauthorized occupants could be applied. The Ministry for
Minority Affairs agreed to incorporate various suggestions. The ministry for Law and Justice
disagreed to apply the said provisions, and suggested for incorporation of similar provisions in 162
the Wakf Act by amendment.161 There were some issues still disagreed by some organizations.
On 22 d February, 2013 the Union Cabinet cleared the Wakf (Amendment) Bill 2010 for
Parliament's consideration. 163 However, the Bill is not yet passed. The consultation process is
going on. The development evinces evolution of legal policy of reform on the basis of fact
finding, wide consultation of stakeholders, intensive discussion at various stages of
Parliamentary proceeding, high degree of open minded approach to accommodate the interests of
minorities, and interaction between public opinion and the legislative process.
SALIENT FEATURES OF THE WAKF (AMENDMENT) BILL, 2010
Firstly, in view of incomplete process of surveying the waqf properties by State Governments
under the Wakf Act, 1995, the Amendment intends to obligate the States to complete the
surveying within one year from the date of commencement of the Amendment at the State's cost.
Secondly, the composition of the CWC and SWB is to be altered so as to provide

representation to women, professionals and experts; and the CWC shall be given the power of
giving binding directions upon the SWBs, and the SWBs shall be obligated to give information
about the functioning and finances of waqfs in the State.
Thirdly, the Chairperson of SWB may be removed by passing no confidence motion by

the members of SWB according to the appropriate procedure. (new Section 20A)
Fourthly, the SWB shall not have power to authorize sale or gift of immovable property
of the waqf under section 32. Sale or gift or total transfer of waqf property shall be void ab initio.
In case of acquisition of land belonging to waqf under the Land Acquisition Act, 1891, it shall be
ensured that it does not violate Places of Public Worship (Special Provisions) Act 1991; the
purpose of acquisition of land is undisputedly for public purpose; there is no alternative suitable
land to satisfy the purpose; and the compensation shall be the prevailing market value plus
solatium and a equally suitable land in lieu of the acquired property to safeguard adequately the
interest and objective of the waqf. (section 51) Under a new provision, section 104 A all persons
are prohibited from selling, gifting or totally transferring any movable or immovable property,
which is waqf property to any other person.
Fifthly, punishment of rigorous imprisonment for two years is prescribed to persons who
alienate or purchase or take possession of, in whatever manner, either permanently or
161 h://www.hindustantimescom/ndia-news/NewDe~hi/Ministries-ock-hrns-gn-Waqf-and-evictio-
law/Articlel-877884.aspx June 23, 2012
162 htt://www.thehindu.colidnews/national/mislim-body-opposes-wagf-amendment-bil1-2010/article23 11195.ece
visited on 2nd June, 2013 All India Waqf Protection Board; http://zeenews.india.com/news/nation/musliin-body-
opposes -wagf-amendment-bill-2010 723393.html, July 31, 2011 visited on 3 June 2013
163 htltp:/www.indianexyresscmnews/cabinet-nay-c~ear-wakf-bi -amendents-tda /1077220/ Feb 21, 2013;
also see http//indiagovernance.gov.in/news.php?id=2048 February 22, 2013 visited on 2nd June 2013
temporarily, any movable or immovable property being waqf property, without prior sanction of
the Board. (section 52A) The offence is cognizable and non-bailable one. This covers the
situation of encroachers also. The term encroacher is defined to strengthen the existing provision
on removal of encroachment from waqf property.164 The Select Committee has recommended
that all wakf lands occupied by the government or their agencies should be vacated within six
months or market rate be paid to the Wakf Board/Mutawalli concerned since occupation of the
said properties. It also recommended that if wakf land, already acquired by the government, is
not used within a year for the purpose for which it was acquired, it shall revert to the Wakf
Board/Mutawalli concerned.
Sixthly, in order to generate considerable returns from the prime located urban waqf
property, the lease period is enhanced from the present position of 3 years to 30 years. This is
subject to a proviso that any lease or sublease exceeding three years and up to ten years may be
made for commercial purpose according to the rules framed by the central government, and that
that any lease or sublease exceeding ten years and up to thirty years may be made for purposes of
education and health according to the rules framed by the central government.
Seventhly, the Tribunal's composition is restructured so that the Chairman of the

Tribunal shall be a member of the State Judicial Service holding a rank not below that of a
District, Sessions or Civil Judge; and other two members shall include an officer of state civil
service not below the rank of ADM and a person having the knowledge of Muslim law and
jurisprudence.
Eighthly, in the list of permissible expenses by Waqf Board under section 77, a new head
is proposed to be added: payment of maintenance to Muslim women as ordered by a court of
competent jurisdiction under the provisions of the Muslim Women (Protection of Rights on
Divorce) Act, 1986.
Ninthly, wakf shall be spelt as waqf and wakfs shall be called awqaf throughout.
Some of the factors of dissatisfactions raised by the Muslim organizations include:

absence of provision for constituting Waqf Development Corporations; absence of restraint on
bureaucratic control through governmental directions under section 97; chairman of the SWB
should be from the category of retired High Court judges or former Vice Chancellors; CEOs to
be not below the rank of Directors; enhancement of lease period up to 30 years shall be
unconditional; CEO shall have powers of eviction of encroacher by issuing warrant of ejectment;
declaration of waqf other than waqf-alal-aulad as public premise for the purpose of evacuation of
the encroachers; and the Waqf Act shall have overriding effect on the state rent control laws.
CONCLUSIONS
The philosophy and justification underlying the institution of waqf have definite relation with the
values of social justice and human rights. The social presence of awqaf and range of activities
164 Encroacher means any person who occupies the waqf property, in whole or part, without the authority of law and
includes a person whose tenancy, lease or licence has expired or has been terminated by the Board. Section 3 (ee)
they support point out their vital role for the culture and communitarian interests of the Muslims.
The law of waqf has focused on benefit to community surpassing family aggrandizement. The
legal concern for protecting the genuine acts of charity, use of property for religious and
charitable purpose, accommodation of the value of social harmony by enabling mutual give and
take with followers of other religion have added strength to the waqf law in realizing the values
of social justice and human rights. Syncretism arising from this phenomenon is a typical feature
of multicultural society. The expanding heads of charity and of permissible purposes of Waqf
Board's expenses point out dynamism in the social justice concept. The structural framework for
institutional functioning and management of waqf assist the cause of good governance. Purpose
compliance being major component of good governance is poised to promote both social justice
and human rights. The major aspects of the proposed Waqf Bill 2010 address the serious
problems of encroachment of waqf property, the demands of development and more effective
people's participation. The open minded approach in law reforms in the legislative process and
communitarian response reflects healthy democratic feature. Low key treatment of family waqf
and greater attention to public welfare and community benefit is one of the side effects of
common law of trusts. Secularism and social harmony have also some purging effect in the
process of purpose scrutiny. Sublime thoughts about managing the future, the future of donor,
beneficiary, property and the manager, in the light of spirit of pleasing Almighty have reinforced
the finer values of benevolence.
TABLE OF SHARERS IN SUNNI LAW
Sl. Sharers Normal Normal Conditions under which the normal share is This Column sets out:
No. Share of Share of inherited (A) Shares of Sharers as varied by special
One two or circumstances
more (B) Conditions under which sharers succeed as
collectively Residuaries.
1 FATHER 1/6 -- When there is an agnatic descendant When there is no agnatic descendant the father
inherits as a residuary.
2 TRUE 1/6 -- When there is an agnatic descendant & no When there is an agnatic descendant the true
GRANDFATHER father or nearer true grandfather grand father inherits as a residuary, provided
there is no father or nearer true grandfather.
3 HUSBAND 1/4 -- When there is an agnatic descendant ½ When no agnatic descendant
4 WIFE 1/8 1/8 When there is an agnatic descendant ¼ When no agnatic descendant
5 MOTHER 1/6 -- (a) When there is an agnatic descendant or 1/3 When no agnatic descendant and not more
(b) When there are two or more siblings, than one sibling (if any); but if there is a
whether full, consanguine or uterine. combination of mother with wife or husband
and the father then only 1/3 of what remains
after deducting the spouse’s share.
6 TRUE GRAND 1/6 1/6 a) Maternal-When no mother, and no
MOTHER nearer true grandmother either paternal
or maternal.
b) Paternal-When no mother, no father, no
nearer true grandmother either paternal
or maternal, and no intermediate true
grandfather.
7 DAUGHTER 1/2 2/3 When no Son With the son she becomes a residuary
8 SONS 1/2 2/3 When no (1) Son, (2) Daughter (3) Higher When there is only one daughter, or higher son’s
DAUGHTER Son’s Son, (4) Higher Son’s daughter, or (5) daughter but no (1) Son, (2) Higher Son’s Son,
h.l.s Equal Son’s son or (3) Equal Son’s Son, the daughter or higher
Sl. Sharers Normal Normal Conditions under which the normal share is This Column sets out:
No. Share of Share of inherited (A) Shares of Sharers as varied by special
One two or circumstances
more (B) Conditions under which sharers succeed as
collectively Residuaries.
son’s daughter will take ½ and the son’s
daughter h.l.s., (whether one or more) will take
1/6, 2/3,1/2 (with and equal son’s son the
becomes a residuary
(i) Son’s Daughter 1/2 2/3 When no (1) Son, (2) Daughter or (3) Son’s
son When there is only one daughter, the son’s
daughter (whether one or more) will take 1/6, if
there be no son or son’s son. With the son’s son
(ii) Son’s Son’s 1/2 2/3 When no (1) Son, (2) Daughter (3) Son’s Son, she becomes a residuary.
Daughter (4) Son’s daughter, or (5) Son’s son’s son.
When there is only one daughter or son’s
daughter, the son’s son’s daughter (whether one
or more) will take 1/6, if there be no (1) Son (2)
Son’s son (3) Son’s son’s son. With the Son’s
son’s, she becomes a residuary.
9 UTERINE 1/6 1/3 When no (1) Child, (2) Child of a son h.l.s.,
BROTHER OR (3) Father of (4) True Grandfather.
SISTER
10 FULL SISTER 1/2 2/3 When no (1) Child, (2) Child of a son h.l.s., With the full brother she becomes a residuary
(3) Father (4) True Grandfather, or (5) Full
Brother.
10 CONSANGUINE 1/2 2/3 When no (1) Child, (2) Child of a son h.l.s., But if there is only one full sister and she
SISTER (3) Father (4) True Grandfather (5) Full succeeds as a sharer, the consanguine sister
(whether one or more) will take 1/6, provided
Brother (6) Full Sister, or (7) Consanguine she is not otherwise excluded from inheritance.
Brother. With the consanguine brother she becomes a
residuary.
TABLE OF SHARERS IN SHIA LAW
SHARERS SHARE COLLECTIVE WHEN SHARE IS SPECIAL

OF 1 SHARE INHERITED CIRCUMSTANCES
1 HUSBAND ¼ - Presence of lineal No lineal descendant
descendant 1/2
2. WIFE 1/8 1/8 Presence of lineal No lineal descendant
descendant 1/4
3. FATHER 1/6 -- When there is a lineal When there is no
descendant lineal descendant the
father inherits as a
residuary.
4 MOTHER 1/6 - a)Presence of lineal Otherwise 1/3
descendant or
b)father along with two or
more full/ consanguine
brothers or their equivalent
(1 brother = 2 sisters)
5 DAUGHTER ½ 2/3 Absence of son Residuary with son,
the son taking a
double share
6 UTERINE 1/6 1/3 Absence of lineal
BROTHER descendants and Parents
7 UTERINE
SISTER
8 FULL SISTER ½ 2/3 Absence of lineal Residuary with the
descendants and Parents full brother or
Also, absence of full father’s father
brother or father’s father
9 CONSANGUINE ½ 2/3 Absence of lineal Residuary with
SISTER descendants and Parents consanguine brother
Also, absence of full and father’s father
brother, full sister or
father’s father
C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar and Anr., AIR 1953 SC 495
Hon'ble Judges/Coram: B. Jagannadhadas, B.K. Mukherjea and Mehr Chand

Mahajan, JJ.
Court: Supreme Court of India
Authorities Referred: Mayne's Hindu Law, 11th edition
Case Note:
Family - power of alienation - Hindu Law - appeal filed with Supreme Court for
specific share in partition of ancestral property - Trial Court allowed claim except
some jewellery - High Court dismissed claim for jewellery holding that it belongs to
step mother of plaintiff - controversy before Supreme Court regarding interest of son
in self acquired property of his father which he receives by way of gift - gifted
property divisible between father and sons - does not come within definition of self-
acquisition as given by Mitakshara - testator did not want to confer upon sons same
rights as they could have on intestacy.
JUDGEMENT
B.K. Mukherjea, J.
1. This appeal, which has come before us on special leave, is directed against a judgment
and decree of a Division Bench of the Madras High Court dated December 13, 1949,
affirming, with slight modification, those of the Subordinate Judge, Coimbatore, passed in
O.S. No. 138 of 1945.
2. The suit was commenced by the plaintiff, who is respondent No. 1 in this appeal for
specific allotment, on partition, of his one-third share in the properties described in the
plaint, on the allegation that they were the joint properties of a family consisting of
himself, his father the defendant No. 1, and his brother, the defendant No. 2, and that he
was entitled in law to one-third share in the same. It appears that the plaintiff and
defendant No. 2, who are two brothers, are both sons of defendant No. 1 by his first wife
who predeceased her husband. After the death of plaintiff's mother, the defendant No. 1
married again and his second wife is defendant No. 3 in the suit. The allegations in the
plaint, in substance, are that are the step-mother came into the house, the relation between
the father and his sons became strained and as the father began to assert an exclusive title
to the joint family property, denying any rights of his sons thereto, the present suit had to
be brought. The properties in respect of which the plaintiff claims partition are described
in Schedule B to the plaint. They consist of four items of agricultural land measuring a
little over 5 acres in the aggregate, one residential house in the town of Erode and certain
jewellery, furniture and brass utensils. In addition to these it is averred in paragraph II of
the plaint that there is a sum of about Rs. 15,000 deposited in the name of the first
defendant in the Erode Urban Bank Limited; that money also belongs to the joint family
and the plaintiff is entitled to his share therein.
3. The defendant No. 1 in his written statement traversed all these allegations of the
plaintiff and denied that there was any joint family property to which the plaintiff could
lay a claim. His case was that items 1 and 2 of Schedule B lands as well as the house
property were the self acquired properties of his father and he got them under a will
executed by the latter as early as in the year 1912. The other items of immovable property
as well as the cash, furniture and utensils were his own acquisitions in which the sons had
no interest whatsoever. As regards the jewels mentioned in the plaint, it was said that only
a few of them existed and they belonged exclusively to his wife, the defendant No. 3.
4. The defendant No. 2 who is the brother of the plaintiff, supported the plaintiff's case in
its entirety. The defendant No. 3 in her written statement asserted that she was not a
necessary party to the suit and that whatever jewellery there were belonged exclusively to
her.
5. After hearing the case the trial judge came to the conclusion that the properties
bequeathed to defendant No. 1 by his father should be held to be ancestral properties in his
hands and as the other properties were acquired by defendant No. 1 out of the income of
the ancestral estate, they also became impressed with the character of joint property. The
result was that the Subordinate Judge made a preliminary decree in favour of the plaintiff
and allowed his claim as laid in the plaint with the exception of certain articles of
jewellery which were held to be non-existent.
6. Against this decision, the defendant No. 1 took an appeal to the High Court of Madras.
The High Court dismissed the appeal with this variation that the jewels - such of them as
existed - were held to belong to defendant No. 3 alone and the plaintiff's claim for
partition of the furniture and brass utensils was dismissed. This High Court rejected the
defendant No. 1's application for leave to appeal to this court but he succeed in getting
special leave under article 136 of the Constitution.
7. The substantial point that requires consideration in the appeal is, whether the properties
that the defendant No. 1 got under the will of his father are to be regarded as ancestral or
self-acquired properties in his hands. If the properties were ancestral, the sons would
become co-owners with their father in regard to them and as it is conceded that the other
items of immovable property were mere accretions to this original nucleus, the plaintiff's
claim must succeed. If, on the other hand, the bequeathed properties could rank as self-
acquired properties in the hands of defendant No. 1 the plaintiff's case must fail. The law
on this point, as the courts below have pointed out, is not quite uniform and there have
been conflicting opinions expressed upon it by different High Court which require to be
examined carefully.
8. For a proper determination of the question, it would be convenient first of refer to the
law laid down in Mitakshara in regard to the father's right of disposition over his self-
acquired property and the interest which his sons or grandsons take in the same. Plaintiff
27, chapter I, section I of Mitakshara lays down :
"It is settled point that property in the paternal or ancestral estate is by birth, though the
father has independent power in the disposal of effects other than the immovable for
indispensable acts of duty and for purposes prescribed by texts of law as gift through
affection, support of the family, relief from distress and so forth; but he is subject to the
control of his sons and the rest in regard to the immovable estate, whether acquired by
himself or inherited from his father or other predecessors since it is ordained, 'though
immovable or bipeds have been acquired by man himself, a gift or sale of them should not
be made without convening all the sons'".
Mitakshara insists on the religious duty of a man not to leave his family without means of
support and concludes the text by saying : "They who are born and they who are yet
unbegotten and they who are still in the womb, require the means of support. No gift or
sale should therefore be made."
9. Quite at variance with this precept which seems to restrict the father's right of
disposition over his self-acquired property in an unqualified manner and in the same way
as ancestral lands, there occur other texts in the commentary which practically deny any
right of interference by the sons with the father's power of alienation over his self-acquired
property. Chapter I, section 5, placitum 9 says :
"The grandson has a right of prohibition if his unseparated father is making a donation or
sale of effects inherited from the grandfather : but he has no right of interference if the
effects were acquired by the father. On the contrary he must acquiesce, because he is
dependent."
The reason for this distinction is explained by the author in the text that follows :
"Consequently the difference is this : although he has a right by birth in his father's and in
his grandfather's property; still since he is dependent on his father in regard to the paternal
estate and since the father has a predominant interest as it was acquired by himself, the son
must acquiesce in the father's disposal of his own acquired property."
10. Clearly the latter passages are in flat contradiction with the previous ones and in an
early Calcutta case (Vide Muddun v. Ram, 6 W.R. 71.) a reconciliation was attempted at
by taking the view that the right of the sons in the self-acquired property of their father
was an imperfect right incapable of being enforce at law. The question came pointedly for
consideration before the Judicial Committee in the case of Rao Balwant v. Rani Kishori 25
I.A. 54 and Lord Hob-house, who delivered the judgment of the Board, observed in course
of his judgment that in the text books and commentaries on Hindu law, religious and
moral considerations are after mingled with rules of positive law. It was held that the
passages in Chapter I, section 1, verse 27 of Mitakshara contained only moral or religious
precepts while those in section 5, verses 9 and 10 embodied rules of positive law. The
latter consequently would override the former. It was held, therefore, that the father of a
joint Hindu family governed by Mitakshara law has full and uncontrolled powers of
disposition over his self-acquired immovable property and his male issue could not
interfere with these rights in any way. This statement of the law has never been challenged
since then and it has been held by the various High Courts in India, and in our opinion
rightly, that a Mitakshara father is not only competent to sell his self-acquired immovable
property to a stranger without the concurrence of his sons (Vide Muddun v. Ram 6 W.R.
71.), but he can make a gift of such property to one of his own sons to the detriment of
another (Vide Sital v. Madho 1 L.R. 1 All. 394.); and he can make even an unequal
distribution amongst his heirs (Vide Bawa v. Rajah, 10 W.R. 287.).
11. So far the law seems to be fairly settled and there is no room for controversy. The
controversy arises, however, on the question as to what kind of interest a son would take
in the self-acquired property of his father which he receives by way of gift of testament
bequest from him, vis a vis his own male issue. Does it remain self-acquired property in
his hands also untrammeled by the rights of his sons and grandsons or does it become
ancestral property in his hands, though not obtained by descent, in which his male issue
become co-owners with him ? This question has been answered in different ways by the
different High Courts in India which has resulted in a considerable diversity of judicial
opinion. It was held by the Calcutta High Court (Vide Muddun v. Ram 6 W.R. 71.) as
early as in the year 1863 that such property becomes ancestral property in the hands of his
son as if he had inherited it from his father. In the other High Courts the question is treated
as one of construction to be decided in each case with reference to its facts as to whether
the gifted property was intended to pass to the sons an ancestral or self-acquired property;
but here again there is a sharp cleavage of judicial opinion. The Madras High Court has
held (Vide Nagalingham v. Ram Chandra, I.L.R. 24 Mad. 429.) that it is undoubtedly open
to the father to determine whether the property which he has bequeathed shall be ancestral
or self-acquired but unless he expresses his intention that it shall be self-acquired, it
should be held to be ancestral. The Madras view has been accepted by a Full Bench of the
Patna High Court (Vide Bhagwat v. Mst. Kaporni I.L.R. 23 Pat. 599.) and the latest
decision of the Calcutta High Court on this point seems to be rather leaning towards it
(Vide Lala Mukti Prasad v. Srimati Iswari, MANU/WB/0124/1920 : 24 C.W.N. 938.). On
the other hand, the Bombay view is to hold such gifted property as self-acquisition of the
donee unless there is clear expression of intention on the part of the donor to make it
ancestral (Vide Jugmohan Das v. Sir Mangal Das, 10 Bom 528.), and this view has been
accepted by the Allahabad and the Lahore High Courts (Vide Parsotam v. Janki Bai I.L.R.
29 All 354; Amarnath v. Guran A.I.R. 1918 Lah. 394.). This conflict of judicial opinion
was brought to the notice of the Privy Council in Lal Ram Singh v. Deputy Commissioner
of Partabgarh 64 I.A. 265., but the Judicial Committee left the question open as it was not
necessary to decide it in that case.
12. In view of the settled law that a Mitakshara father has absolute right of disposition
over his self-acquired property to which no exception can be taken by his male
descendants, it is in our opinion not possible to hold that such property bequeathed or
gifted to a son must necessarily, and under all circumstances, rank as ancestral property in
the hands of the donee in which his sons would acquire co-ordinate interest. This extreme
view, which is supposed to be laid down in the Calcutta case (Vide Muddun v. Ram, 6
W.R. 71.) referred to above, is sought to be supported on a two-fold ground. The first
ground is the well-known doctrine of equal ownership of father and son is ancestral
property which is enunciated by Mitakshara on the authority of Yagnavalkya. The other
ground put forward is that the definition of "self-acquisition" as given by Mitakshara does
not cannot comprehend a gift of this character and consequently such gift cannot but be
portable property as between the donee and his sons.
13. So far as the first ground is concerned, the foundation of the doctrine of equal
ownership of father and son in ancestral property is the well-known text of Yagnavalkya
(Vide Yagnavalkya, Book 2, 129.) which says :
"The ownership of father and son is co-equal in the acquisitions of the grandfather,
whether land, corody or chattel."
14. It is to be noted that Vijnaneswar invokes this passage in Chapter I, section of his
work, where he deals with the division of grandfather's wealth amongst his grandsons. The
grandsons, it is said, have a right by birth in the grandfather's estate equally with the sons
and consequently are entitled to shares on partition, though their shares would be
determined per stripes and not per capita. This discussion has absolutely no bearing on the
present question. It is undoubtedly true that according to Mitakshara, the son has a right by
birth both in his father's and grandfather's estate, but as has been pointed out before,
distinction is made in this respect by Mitakshara itself. In the ancestral or grandfather's
property in the hands of the father, the son has equal rights with his father; while in the
self-acquired property of the father, his rights are unequal by reason of the father having
an independent power over or predominant interest in the same (Vide Mayne's Hindu
Law, 11th edition, page 336.). It is obvious, however, that the son can assert this equal
right with the father only when the grandfather's property has devolved upon his father
and has become ancestral property in his hands. The property of the grandfather can
normally vest in the father as ancestral property if and when the father inherits such
property if and when the father inherits such property on the death of the grandfather or
receives it, by partition made by the grandfather himself during his lifetime. On both these
occasions the grandfather's property comes to the father by virtue of the latter's legal right
as a son or descendant of the former and consequently it becomes ancestral property in his
hands. But when the father obtains the grandfather's property by way of gift, he receives it
not because he is a son or has any legal right to such property but because his father chose
to bestow a favour on him which he could have bestowed on any other person as well. The
interest which he takes in such property must depend upon the will of the grantor. A good
deal of confusion, we think, has arisen any not keeping this distinction in mind. To find
out whether a property is or is not ancestral in the hands of a particular person, not merely
the relationship between the original and the present holder but the mode of transmission
also must be looked to; and the property can ordinarily be reckoned as ancestral only if the
present holder has got it by virtue of his being a son or descendant of the original owner.
The Mitakshara, we think, is fairly clear on this point. It has placed the father's gifts under
a separate category altogether and in more places than one has declared them exempt from
partition. Thus in Chapter I, section I, placitum 19 Mitakshara refers to a text of Narada
which says :
"Excepting what is gained by valor, the wealth of a wife and what is acquired by science
which are three sorts of property exempt from partition; and any favour conferred by a
father."
15. Chapter I, section 4 of Mitakshara deals with effects not liable to partition and
property "obtained through the father's favour" finds a place in the list of things of which
no partition can be directed (Vide section 4, placitum 28 of Mitakshara.). This is
emphasised in section 6 of chapter I which discusses the rights of posthumous sons or sons
born after partition. In placitum 13 of the section it is stated that though a son born after
partition takes the whole of his father's and mother's property, yet if the father and mother
has affectionately bestowed some property upon a separated son, that must remain with
him. A text of Yagnavalkya is then quoted that "the effects which have been given by the
father and by the mother belong to him on whom they are bestowed" (Vide Yagnavalkya
2, 124.).
16. It may be noted that the expression "obtained through favour of the father" (pitr
prasada labdha) which occurs in placitum 28, section 4 of Mitakshara is very significant.
A Mitakshara father can make a partition of both the ancestral and self-acquired property
in his hands any time he likes even without the concurrence of his sons; but if he chooses
to make an partition, he has got to make it in accordance with the directions laid down in
the law. Even the extent of inequality, which is permissible as between the eldest and the
younger sons, is indicated in the text (Vide Mitakshara chapter I, section 2.). Nothing
depends upon his own favour or discretion. When however, he makes a gift which is only
an act of bounty, he is unfettered in the exercise of his discretion by any rule or dictate of
law. It is in these gifts obtained through the favour of the father that Vijnaneswar,
following the earlier sages, declares the exclusive right of the sons. We hold, therefore,
that there is no warrant for saying that according to the Mitakshara, an affectionate gift by
the father to the son constitutes ipso facto ancestral property in the hand of the donee.
17. If this is the correct view to take, as we think it is, it would furnish a complete answer
to the other contention indicated above that such gifted property must be held divisible
between the father and the sons as it does not come within the definition of "self-
acquisition", as given by Mitakshara. In chapter I, section 4 of his work, Vijnaneswar
enumerates and deals with properties which are not liable to partition. The first placitum
of the section defines what a "self-acquisition" is. The definition is based upon the text of
Yagnavalkya that "whatever is acquired by the coparcener himself without detriment to
the father's estate as present from a friend or a gift at nuptials, does not appertain to the co-
heirs." What is argued is this, that as the father's gift cannot be said to have been acquired
by the son without detriment to the father's estate, it cannot be regarded as self-acquisition
of the son within the meaning of the definition given above and consequently cannot be
exempted from partition. This argument seems to us to be untenable. Section 4 of the first
chapter in Mitakshara enumerates various items of property which, according to the
author, are exempted from partition and self-acquisition is only one of them. Father's gifts
constitute another item in the exemption list which is specifically mentioned in placitum
28 of the section. We agree with the view expressed in the latest edition of Mayne's Hindu
Law that the father's gift being itself an exception, the provision in placitum 28 cannot be
read as requiring that the gift must also be without detriment to the father's estate, for it
would be a palpable contradiction to say that there could be any gift by a father out of the
estate without any detriment to the estate (Vide Mayne's Hindu Law, 11th edition,
paragraph 280, page 344.). There is no contradiction really between placitum 1 and
placitum 28 of the section. Both are separate and independent items of exempted
properties, of which no partition can be made.
18. Another argument is stressed in this connection, which seems to have found favour
with the learned Judge of the Patna High Court who decided the Full Bench case (Vide
Bhagwat v. Mst. Kaporni, I.L.R. 23 Pat. 599.) referred to above. It is said that the
exception in regard to father's gift as laid down in placitum 28 has reference only to
partition between the donee and his brother but so far as the male issue of the donee is
concerned, it still remains partible. This argument, in our opinion, is not sound. If the
provision relating to self-acquisition is applicable to all partitions, whether between
collaterals or between the father and his sons, there is no conceivable reason why placitum
28, which occurs in the same chapter and deals with the identical topic, should not be
made applicable to all cases of partition and should be confined to collaterals alone. The
reason for making this distinction is undoubtedly the theory of equal ownership between
the father and the son in the ancestral property which we have discussed already and
which in our opinion is not applicable to the father's gifts at all. Our conclusion, therefore,
is that a property gifted by a father to his son could not become ancestral property in the
hands of the donee simply by reason of the fact that the dense got it from his father or
ancestor.
19. As the law is accepted and well settled that a Mitakshara father has complete powers
of disposition over his self-acquired property, it must follow as a necessary consequence
that the father is quite competent to provide expressly, when he makes a gift, either that
the donee would take it exclusively for himself or that the gift would be for the benefit of
his branch of the family. If there are express provisions to that effect either in the deed of
gift or a will, no difficulty is likely to arise and the interest which the son would take in
such property would depend upon the terms of the grant. If, however, there are no clear
words describing the kind of interest which the donee is to take, the question would be one
of construction and the court would have to collect the intention of the donor from the
language of the document taken along with the surrounding circumstances in accordance
with the well-known canons of construction. Stress would certainly have to be laid on the
substance of the disposition and not on its mere form. The material question which the
court would have to decide in such cases is, whether taking the document and all the
relevant facts into consideration, it could be said that the donor intended to confer a
bounty upon his son exclusively for his benefit and capable of being dealt with by him at
his pleasure or that the apparent gift was an integral part of a scheme for partition and
what was given to the son was really the share of the property which would normally be
allotted to him and in his branch of the family on partition. In other words, the question
would be whether the grantor really wanted to make a gift of his properties or to partition
the same. As it is open to the father to make a gift or partition of his properties as he
himself chooses, there is, strictly speaking, no presumption that he intended either the one
or the other.
20. It is in the light of these principles that we would proceed now to examine the facts of
this case. The will of his father under which defendant No. 1 got the two items of
Schedule B properties is Ex. P. 1 and is dated the 6th of June, 1912. The will is a simple
document. It recites that the testator is aged 65 and his properties are all his own which he
acquire from no nucleus of ancestral fund. He had three sons, the eldest of whom was
defendant No. 1 In substance what the will provides is that after his death, the A Schedule
properties would go to his eldest son, the B Schedule properties to his second son and the
properties described in Schedule C shall be taken by the youngest. The sons are to enjoy
the properties allotted to them with absolute rights and with powers of alienation such as
gift, exchange, sale, etc. from son to grandson hereditarily. The testator, it seems, had
already given certain properties to the wives of his two brothers and to his own wife also.
They were to enjoy these properties during the terms of their natural lives and after their
death, they would vest in one or the other of his sons, as indicated in the will. The D
Schedule property was apart for the marriage expenses of his third son and an unmarried
daughter. Authority was given to his wife to sell this property to defray the marriage
expenses with its sale proceeds.
21. It seems to us on reading the document in the light of the surrounding circumstances
that the dominant intention of the testator was to make suitable provisions for those of his
near relations whom he considered to have claims upon his affection and bounty. He did
not want simply to make a division of his property amongst his heirs in the same way as
they themselves would have done after his death, with a view to avoid disputes in the
future. Had the testator contemplated a partition as is contemplated by Hindu law, he
would certainly have given his wife a share equal to that of a son and a quarter share to his
unmarried daughter. His brothers' wives would not then come into the picture and there
could be no question of his wife being authorised to sell a property to defray the marriage
expenses of his unmarried son and daughter. The testator certainly wanted to make a
distribution of his properties in a way different from what would take place in case of
intestacy. But what is really material for our present purpose is his intention regarding the
kind of interest which his sons were to take in the properties devised to them. Here the
will is perfectly explicit and it expressly vests the sons with absolute rights with full
powers of alienation by way of sale, gift and exchange. There is no indication in the will
that the properties bequeathed were to be held by the sons for their families or male issues
and although the will mentions various other relations, no reference is made to sons' sons
at all. This indicates that the testator desired that his sons should have full ownership in
the properties bequeathed to them and he was content to leave entirely to his sons the care
of their own families and children. That the testator did not want confer upon the sons the
same rights as they could have on intestacy is further made clear by the two subsequent
revocation instruments executed by the testator. By the document Exhibit P-2 dated the
26th of March, 1914, he revoked that portion of his will which gave the Schedule C
property to his youngest son. As this son had fallen into bad company and was disobedient
to his father, he revoked the bequest in his favour and gave the same properties to his
other two sons, with a direction that they would pay out of it certain maintenance
allowance to their youngest brother or to his family if he got married. There was a second
revocation instrument, namely, Exhibit P-3, executed on 14th April, 1914, by which the
earlier revocation was canceled and the properties intended to be given to the youngest
son were taken away from the two brothers and given to his son-in-law and the legate was
directed to hand them over to the third son whenever he would feel confident that the
latter had reformed himself properly. In our opinion, on reading the will as a whole the
conclusion becomes clear that the testator intended the legatees to take the properties in
absolute right as their own self-acquisition without being fettered in any way by the rights
of their sons and grandsons. In other words, he did not intend that the property should be
taken by the sons as ancestral property. The result is that the appeal is allowed, the
judgment and decrees of both the courts below are set aside and the plaintiff's suit is
dismissed. Having regard to the fact that the question involved in this case is one of
considerable importance upon which there was considerable difference of judicial opinion
and that the plaintiff himself is a pauper, we direct that each partly shall bear his own costs
in all the courts.
22. Appeal dismissed.
23. Agent for the appellant : S. Subramanian.
24. Agent for the respondent No. 1 : M. S. K. Aiyangar.

Commissioner of Wealth Tax, Madras and Ors. v. Late R. Sridharan by L.Rs. & Rosa Maria
Steinbicher Sridharan, (1976) 4 SCC 489
Hon'ble Judges/Coram: A.N. Ray, C.J., Jaswant Singh, M. Hameedullah Beg, P.N. Singhal
and R.S. Sarkaria, JJ.
Prior History:
Appeal from the Judgment and Order dated December 20, 1968 of the Madras High Court
in Tax Case 314 of 1964 (Reference 82 of 1964) and Appeal from the Judgment and Order
dated April 3, 1972 of the Madras High Court in Tax Case 328 of 1966 (Reference 88 of
Disposition: In favour of Assessee
Case Note:
Direct Taxation - assessment - whether assessee and his son constituted in law Hindu
undivided family (HUF) - assessee was Hindu by birth - lawfully married to Christian
woman - he did not renounce Hinduism after marriage and continued to profess Hinduism -
assessee's son was brought up as Hindu and he was conform to habits and usages of
Hinduism - son was recognised as Hindu by society surrounding him - assessee also
unequivocally acknowledged and expressly declared that he and his son formed HUF - High
Court was justified in holding that assessee's son was Hindu and he could validly be
member of HUF for purpose of wealth tax.
JUDGEMENT
Jaswant Singh, J
1. These appeals Nos. 1399 to 1403 of 1970 and 301 of 1974 by certificates granted by the High
Court of Madras shall be disposed of together by this judgment as they raise common question of
law and fact.
2. The circumstances giving rise to these, appeals are The late R. Sridharan along with his father
and brothers constituted a Hindu undivided family governed by Mitakshara law. On June 28, 1952,
while he was still unmarried, a partition took place between him, his brothers and his father. As a
result of this partition, a block of shares in T.V. Sundaram Iyengar and Sons Private Limited and
three other limited companies fell to his share. On June 14, 1956, Sridharan married Rosa Maria
Steinbchler, a Christian woman of Austrian descent, under the Special Marriage Act, 1954. On
November 29, 1957, a son named Nicolas Sundaram was born out of this wedlock. For the
assessment years 1957-58, and 1958-59, Sridharan was assessed to income tax and wealth tax in
the status of an 'individual' on his own declaration to that effect. In the assessment proceedings in
respect of income tax and wealth tax for the assessment years 1959-60, 1960-61 and 1961-62 and
in the assessment proceedings under the Expenditure Tax Act for the year 1961-62, he claimed to
be assessed in the status of a member of Hindu undivided family consisting of himself and his son,
Nicolas Sundaram, contending that the property held by him was ancestral and Nicolas Sundaram
was a Hindu. The. Income Tax Officer, Wealth Tax Officer and Expenditure Tax Officer, refused
to accede to the contention of Sridharan and asscssed, him in the status of an 'individual' as in the
previous years on the grounds that the value of the shares and other investments standing in his
name being his exclusive properties and by virtue of Section 21 of the Special Marriage Act, 1954,
succession to the property of a person whose marriage has been solemnized under that Act being
governed by the Indian Succession Act, 1925, and not by the ordinary Hindu law, Nicolas Sundaram
could not become a member of Hindu undivided family, with his father. Sridharan thereupon went
up in appeal to the Appellate Assistant Commissioner but remained unsuccessful. The orders passed
by the Income Tax/Wealth Tux/Expcnditure Tux Officers and the Appellate Assistant
Commissioner were also affirmed in appeals against the assessments respectively made under the
Income-tax Act", Wealth Tax Act and the Expenditure Tux Act by the Appellate Tribunal. In the
course of its consolidated order rejecting the appeals, the appellate Tribunal observed that although
Section 21 of the Special Marriage Act preserved some of the rights in the family property of the
children born out of marriage solemnized under that Act, it did not clothe such offspring with the
character of Hindus and therefore, there was no Hindu undivided family of Sridharan and his son
which could claim to be taxed as Hindu undivided family.
3. Thereafter 011 the applications made by Sridharan under Section 27(1) of the Wealth Tax Act,
Section 66(1) of the Income-tax Act and Section 25(1) of the Expenditure Tax Act, the Income-tax
Appellate Tribunal referred the following common question of law arising from its aforesaid
decision for the opinion of the High Court:
Whether, on the facts and in the circumstances of the case, the assessee and his son constituted a
Hindu undivided family for purposes of assessment under the Income-tax, Wealth-tax and
Expenditure-tax Acts?
4. The High Court following the decision of this Court in Gowli Buddanna v. Commissioner of
Income-tax MANU/SC/0110/1966 : [1966]60ITR293(SC) held that Sridharan's claim to be
reckoned as Hindu undivided family was well merited and the Tribunal was in error in holding that
there was no Hindu undivided. family of Sridharan and his son which could claim to be assessed
and taxed as such either under the Income-tax Act, or Wealth Tax Act or the Expenditure Tax Act.
The High Court accordingly answered the question in the affirmative but granted certificate of
fitness for appeal to this Court.
5. Sridharan died on April 9, 1962. A few days after the valuation date relevant for the assessment
year 1963-64, his widow Mrs. Rosa Maria Steinbchler filed a wealth tax return claiming that the
assessment for the assessment year 1962-63 should be made in the status of Hindu undivided
family. The Wealth Tax Officer following his earlier decision in the assessment proceedings in
respect of the previous years rejected the claim of Rosa Maria Steinbchler holding that she was not
a Hindu and in any case since her marriage with Sridharan was under the Special Marriage Act,
1954, Nicolas Sundaram had no right by birth in the properties obtained by the assessee on
partition." He further held that Nicolas Sundaram could claim Sridharan's property only under the
Indian Succession Act, 1925 and not under the Hindu law. On appeal, the Appellate Assistant
Commissioner affirmed the order of the Wealth Tax Officer. A further appeal was preferred to the
Appellate Tribunal but that too proved abortive. The Tribunal, however, referred the following
question of law for the opinion of the High Court:
Whether the assessee, Sridharan and his son constituted in law a Hindu undivided family for the
purpose of assessment under the Wealth-tax Act, 1957 ?
6. The High Court answered the question in the affirmative i.e. against the Revenue observing that
the decision in the previous reference directly governed the facts of the fresh reference.
7. Aggrieved by this order of the High Court, the appellant applied and obtained leave to appeal to
this Court under Section 29(1) of the Wealth-tax Act, 1957 and Article 133(1)(c) of the Constitution
of India. This is how the appeals arc before us.
8. Counsel appearing for the appellants and respondents have repeated before us the contentions
respectively advanced on behalf of the parties before the High Court.
9. It cannot be disputed that a joint Hindu family consists of all persons lineally descended from a
common ancestor and includes their wives and unmarried daughters. It cannot also be disputed that
property obtained by Sridharan on partition between his father and brothers could become ancestral
property so far as his sons, grandsons and great grandsons were concerned who could according to
Mitak-shara law acquire an interest therein by birth.
10. The sole question which, however, falls for our consideration in these appeals is whether
Nicolas Sundaran is a Hindu governed by Hindu law. It is a matter of common knowledge that
Hinduism embraces within itself so many diverse forms of beliefs, faiths, practices and worship
that it is difficult to define the term 'Hindu' with precision.
11. The historical and etymological genesis of the word "Hindu" has been succinctly explained by
Gajendragadkar, C.J. in Shastri Yagna-purushdasji and Ors. v. Muldas Bhundardas Vaishya and
Anr. MANU/SC/0040/1966 : [1966]3SCR242 .
12. In Unabridged Edition of Webster's Third New International Dictionary of the English
language, the term 'Hinduism' has been defined as meaning "a complex body of social, cultural, and
religious Beliefs and practices evolved in and largely confined to the Indian subcontinent and
marked by a caste system, an outlook tending to view all forms and theories as aspects of one eternal
being and truth, a belief in ahimsa, karma, dharma, sansara, and moksha, and the practice of the
way of works, the way of knowledge, or the way of devotion as the means of release from the bound
of rebirths; the way of life and form of thought of a Hindu".
13. In Encyclopedia Britannica (15th Edition), the term 'Hinduism' has been defined as meaning
"the civilization of Hindus (originally, the inhabitants of the land of the Indus River). It properly
denotes the Indian civilization of approximately the last 2,000 years, which gradually evolved from
Vedism, the religion of the ancient Indo-European peoples who settled in India, in the last centuries
of the 2nd millennium BC. Because it integrates a large variety of. heterogeneous elements,
Hinduism constitutes a very complex but largely continuous whole, and since it covers the whole
of life, it has religious, social, economic, literacy, and artistic aspects. As a religion, Hinduism is an
utterly diverse, conglomerate, of doctrines, cults, and way of fire .... In principle, Hinduism
incorporates all forms of belief and worship without necessitating the selections or elimination of
any. The Hindu, is inclined to revere, the divine in every manifestation, whatever it may be, and is
doctrinally tolerant, leaving others--including both Hindus and non-Hindus--whatever creed and,
worship practices suit them best. A Hindu may embrace a non-Hindu religion without ceasing to
be a Hindu, and since the Hindu is disposed to think synthetically and to regard other forms of
worship, strange gods, and divergent doctrines, as inadequate rather than wrong or objectionable,
he tends to believe that the highest divine powers complement each other for the well-being of the
world and mankind. Few religious ideas: are considered to be. finally irreconcilable. The core of
religion does not even depend on the. existence or non-existence of God or on whether there is one
god or many. Since religious truth is said to transcend all verbal definition, it is not conceived in
dogmatic terms. Hinduism is, then both a civilization and a conglomerate of religions, with neither
a beginning, a founder, nor a central authority, hierarchy, or organization. Every attempt at a
specific definition of Hinduism has proved unsatisfactory in one way or another, the more so
because the finest Indian scholars of Hinduism, including Hindus themselves, have emphasized
different aspects of the whole".
14. In his celebrated treatise "Gitarahasaya", B.G. Tilak has given the following broad description
of the Hindu religion:
Acceptance of the Vedas with reverence; recognition of the fact that the means or ways of salvation
are diverse; and realisation of the truth that the number of gods to be worshipped is large, that
indeed is the, distinguishing feature of Hindu religion.
15. In Bhagwan Koer v. J.C. Base and Ors. [1904] I.L.R. 31 Cal. 11 it was held that Hindu religion
is marvelously catholic and elastic. Its theology is marked by eclecticism and tolerance and almost
unlimited freedom of private worship. Its social code is much more stringent, but amongst its
different castes and sections, exhibits wide diversity of practice. No trait is more marked of Hindu
society in general than its horror of using the meat of the cow.
16. This being the scope and nature of the religion, it is not strange that it holds within its fold men
of divergent views and traditions who have very little in common except a vague faith in what may
be, called the fundamentals of the Hindu religion.
17. It will be advantageous, at this stage to refer to page 671 of Mulla's Principles of Hindu Law
(Fourteenth Edition), where the position is stated thus:
The word 'Hindu' docs not denote any particular religion or community. During the last hundred
years and more it has been a nomenclature used to refer comprehensively to various categories of
people for purposes of personal law. It has been applied to dissenters and non-conformists and even
to those who have entirely repudiated Brahmanism. It has been applied to various religious sects
and bodies which at various periods and in circumstances developed out of or split off from, the
Hindu system but whose members have nevertheless continued to live under the Hindu law and the
Courts have generally put a liberal construction upon enactments relating to the personal laws
applicable to Hindus.
18. In paragraph 6 of Chapter I of Mulla's aforesaid Treatise, the following have been enumerated
as persons to whom Hindu law applies:
(i) not only to Hindu by birth, but also to Hindus by religion, i.e. converts to Hinduism;
(ii) to illegitimate children where both parents are Hindus;
(iii) to Illegitimate children where the father is a. Christian and the mother is a Hindu, and the
children are brought up as Hindus. But the Hindu law of coparcenary, which contemplates the father
as the head of the family and the sons as coparceners by birth with rights of survivorship, cannot
from the very nature of the case apply to such children;
(iv) to Jains, Buddhists in India, Sikhs and , Nambudri Brahmins except so far as such law is varied
by custom and to Lingayat who are considered. Sudras;
(v) to a Hindu by birth who, having renounced Hinduism, has reverted to it after performing the
religious rites of expiation and repentance. Or even without a formal ritual of reconversion when
he was recognised as a Hindu by his community;
(vi) to sons of Hindu dancing girls of the Naik caste converted to Mahomedanism, where the sons
are taken into the family of the Hindu grandparents and are brought up as Hindus;
(vii) to Brahmos; to Arya Samajists; arid to Santhals of Chota Nagpur and also to Santhals of
Manbhum except so far as it is not varied by custom; and
(viii) to Hindus who made a declaration that they were not Hindus for the purpose of the Special
Marriage Act, 1872.
19. This enumeration is based upon decisions of various courts relating to old uncodified Hindu
law.
20. In Lingappa v. Esudasen [1904] 27 Mad. 13 which related to maintenance, it was held that
Hindu law docs not apply to the illegitimate children of a Hindu father by a Christian mother who
are brought up as Christians. This decision indirectly leads to the conclusion that legitimate children
of a Hindu father by a Christian mother who are brought up as Hindus would be governed by Hindu
law.
21. In Mothey Anja Ratna Raja Kumar v. Koney Narayana Rao and Ors. MANU/SC/0069/1951 :
AIR1953SC433 whole approving the observations made in Ananthaya v. Vishnu 17 Mad. 160 this
Court inter alia held that under the Mitakshara law, an illegitimate son is entitled to maintenance as
long as he, lives, in recognition of his status, as a member of his father's family.
22. Under the codifying Acts namely the Hindu Marriage Act, 1955, the Hindu Succession Act,
1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoption and Maintenance
Act, 1956, the orthodox concept of the term 'Hindu' has undergone a radical change and it has been
given an extended meaning. The aforesaid codifying Acts not only apply to Hindus by birth or
religion i.e. to converts to Hinduism but also to a large number of other persons. According to
explanation (b) to Section 2(1) of the Hindu Succession Act, 1956, Hindu Adoption and
Maintenance Act, 1956 and Hindu Marriage Act, 1955 as also according to explanation (ii) to
Section 3(1) of the Hindu Minority and Guardianship Act, 1956, any child legitimate or illegitimate,
one of whose parents is a Hindu by religion and who is brought up as a Hindu is a Hindu.
23. In the present case, Sridharan is a Hindu by birth and was lawfully married to Rosa Maria
Steinbchler. Even after his marriage, he did not renounce Hinduism but continued to profess that
religion. Having been begotten out of the aforesaid valid and lawful wedlock, Nicolas Sundaram is
a legitimate child and lineal descendant of Sridharan. There is no material on the record to show
that Nicolas Sundaram was not brought up as a Hindu or that he did not conform to the habits and
usages of Hinduism or that he was not recognised as a Hindu by the society surrounding him or that
he became a convert to another faith. Sridharan has also unequivocally acknowledged and expressly
declared that he and his son, Nicolas Sundaram formed a Hindu undivided family. This declaration
in the circumstances is sufficient, as also found by the High Court, to establish that Nicolas
Sundaram was brought up as a Hindu member of the family to which his father belonged. At page
290 of his Treatise on Hindu Law, and Usage (Eleventh Edition), ;Mayne says that a child in India,
under ordinary circumstances, must be presumed to have his father's religion, and his corresponding
civil and social status. He, therefore, have no hesitation in holding that Nicolas Suadaram is it Hindu
and he could validly be a member of the Hindu undivided family headed by his father and he
governed by Hindu law,
24. Section 21 of the Special Marriage Act which has been heavily relied upon by the Revenue has,
in our opinion, no bearing on the present case. That section provides that succession to the property
of a person whose marriage has been solemnized under the Special Marriage Act, 1954 and the
property of the issue of such marriage shall be governed by the provisions of the Indian Succession
Act (XXXIX of 1925). In other words, the section guarantees inter alia to the issue of the person
whose marriage has been solemnized under the Special Marriage Act a collateral statutory right of
succession to the estate of the latter in case he dies intestate. It does not in any way impair or alter
the joint family structure between an assessee and his son. Nor does it effect, as observed by the
High Court, the discretion vested in a Hindu assessee to treat his properties as joint family properties
by taking into his fold his Hindu sons so as to constitute joint family properties.
25. For the foregoing reasons, we are of the opinion that the aforesaid question referred to the High
Court was rightly answered by it on both the occasions. In the result, we find no merit in these
appeals which are dismissed with costs.
Raja Chelikani Venkayyamma Garu v.
Raja Chelikani Venkatarama-Nayyamma, 7 CWN 1
Hon'ble Judges/Coram: Macnaghten, Lindley, Ford North, Andrew Scoble and Arthur
Wilson, JJ.
Court: The Privy Council
Case Note:
Family - Their Lordships will therefore humbly advise His Majesty to dismiss the plaintiff's
cross-appeal (No. 57 of 1900) setting up the will of Venkat Rao, and to allow the defendant's
appeal (No. 1 of 1900), and to dismiss the plaintiff's appeal to the High Court with costs, and
to reverse the decree of the High Court so far as it is inconsistent with the decree of the
District Judge, and to restore that decree and to remit the suit (No. 8 of 1893) whence these
appeals arise to the High Court for the purpose of executing or causing to be executed the
decree of the District Judge and the order made on these appeals. It remains only to deal
with the costs of the appeals. These must be paid by the plaintiff who has failed. But their
Lordships cannot refrain from expressing their strong disapprobation of the expense which
has been unnecessarily incurred in this case. A joint appendix of moderate dimensions
would have been ample for all the purposes of these appeals. The appellant's legal advisers
in India appear to have endeavoured, but unsuccessfully, to reduce the bulk of matter to be
printed. But, instead of an appendix containing no more than was necessary, several
volumes of over 1000 pages each have been translated and printed at vast expense, setting
out accounts running over many years which it was wholly unnecessary to print and which
no one has referred to. Their Lordships regard such reckless extravagance as an abuse of
the rights of suitors, whether appellants or respondents. The parties to blame are in India,
and their Lordships have no power to ascertain who they are nor to make them responsible
for the abuse. Their Lordships will do what they can. They will call the attention of the High
Court of Madras to the case, and suggest to them the propriety of exercising their
jurisdiction over those who conduct litigation and prepare appeals from, their decisions,
and of taking such steps as may be practicable to compel those who are to blame in this
instance to pay the costs unnecessarily incurred. If nothing can be done under existing
regulations, rules should be made to check such gross abuses. Their Lordships will direct
the registrar in taxing the costs to take no account of any of the volumes except the two
which were bound and used at the hearing, and not to allow more in respect of them than he
thinks fair and reasonable.
JUDGEMENT
Lindley, J.
1. A Hindu gentleman named Venkat Rao, living in the province of Madras, where the Mitakshara
law prevails, died in 1869 leaving one widow who died in July, 1875, and one daughter who died
in 1884. He left no other widow, and no descendant except his daughter and her issue. His daughter
married and left two sons, namely, Niladri and Appa Rao. Niladri was born in his grandfather's
lifetime and died in 1892; Appa Rao was born after his grandfather's death and died in 1901. Venkat
Rao's property was his own separate property. The litigation which has culminated in these appeals
is between persons claiming under these two brothers, grandsons of Venkat Rao; and the main
questions raised on the appeals and which their Lordships have to determine are as follows, namely:
(1.) Did Venkat Rao leave a will, or did he die intestate?
(2.) If he died intestate, did his property descend on the death of his daughter to her two sons jointly
with benefit of survivorship, or jointly or in common without benefit of survivorship? In the latter
case, Niladri's share would on his death devolve on his widow and children.
2. There was a subordinate question relating to a supposed will of Niladri in favour of his widow;
but this will was found to be a forgery by two Courts in Madras, and it has not been seriously
contended before their Lordships that this alleged will can be now relied upon. No further allusion
will therefore be made to it.
3. As regards the first question, it is clearly proved that Venkat Rao made a will disposing of his
property in favour of his wife for her life, and after her death in favour of his daughter for her life,
and after her death in favour of his grandson by her, i.e., Niladri. This will was made in 1866, when
Venkat Rao was ill; it was put into an envelope and was deposited and registered in the office of
the district registrar, where it remained until he died. Venkat Rao, however, recovered from his
illness, and in 1857 he executed a power of attorney appointing a vakil to obtain the will out of the
registry and to restore it to him. Owing to some blunder this was not done. Venkat Rao's intention
to get his will back into his own possession, and not to leave it as it was, cannot be doubted. There
is some evidence to shew that he believed he had destroyed it. He certainly cancelled some grants
of land recited in it. Persons existed whose interest it was to claim under it, but no one ever did so,
although it is difficult to believe that none of them knew of it. For nearly thirty years no one ever
thought of asserting any claim under it. The revocation of this will does not depend on any English
ordinance or code; and actual destruction or a formal revocation in writing are not essential to
constitute revocation: see Pertab Narain Singh v. Subkao Kooer. L. R. 4 Ind. Ap. 228, 245. The
District Judge who saw the witnesses came to the conclusion that the will was revoked, and his
decision has been affirmed by the High Court.
4. After carefully considering the evidence, their Lordships are not prepared to advise His Majesty
that their decision on this point ought to be reversed. The will must therefore be treated as revoked.
5. The next question which arises is whether the two grandsons took jointly with benefit of
survivorship, or whether each took an undivided share which on his death devolved upon his
representatives or assigns. Upon this question the Courts below have differed. The District Judge
held that they were joint owners with benefit of survivorship. He did not decide that they acquired
the property as joint owners, but he held that they had so dealt with it as to shew that it was joint
property. The High Court held that they succeeded as owners in common without benefit of
survivorship, and that they never ceased so to hold it. The High Court followed a previous decision
of the High Court of Calcutta in Jasoda Koer v. Sheo Pershad Singh Ind. L. R. 17 Calc. 33., the
correctness of which was strenuously denied by Mr. Mayne and must be considered.
6. The law of inheritance in the case of women is left in great obscurity by the Mitakshara. The
subject is dealt with in chap, ii., Section 11, and has more than once been considered by this Board.
The nature of a widow's estate was settled in two cases in 11 Moore's Ind. App. pp. 139 and 487;
and the nature of a daughter's estate was considered in Chotay Lal v. Chunno Lal. (1878) L. R. 6
Ind. Ap. 15. It was there decided that under the law of the Mitakshara a daughter's estate inherited
from the father is a limited and restricted estate only and not stridhun. Upon her death the next heirs
of her father succeed thereto. In Muttu Vaduganadha Tevar v. Dora Singha Tevar (1886) L. R. 8
Ind Ap. 99; S.C. Ind. L. R. 3 Madr. 290. the same principle was applied to cases in Madras governed
by the Mitakshara law. Their Lordships therefore consider it conclusively established that, in this
case, Niladri and Appa Rao on their mother's death succeeded as heirs to their grandfather's estate.
7. What then was the character of the property which they took? In the grandfather's hands it was
separately acquired property. In the hands of the grandsons it was ancestral property which had
devolved on them under the ordinary law of inheritance. Niladri and Appa Rao were members of a
united family.
8. "According to the principles of Hindu law, there is co-parcenaryship between the different
members of a united family, and survivorship following upon it. There is community of interest and
unity of possession between all the members of the family, and upon the death of any one of them
the others may well take by survivorship that in which they had during the deceased's lifetime a
common interest and a common possession": Katama Natchiar v. Rajah of Shivagunga. (1863) 9
Moore's Ind. Ap. 539, 611. It is true that on acceding to their grandfather's property, Niladri and
Appa Rao might have partitioned it, but they did not do so. It is the right to partition which
determines the right to take by survivorship; and where there is no partition the survivor takes.
9. The High Court have proceeded on the principle that although persons who succeed to joint
family property take jointly if their inheritance is unobstructed, yet that in cases of obstructed
inheritances those who succeed take as tenants in common and not as joint tenants. But the
authorities referred to by Mr. Mayne in his very able argument shew that this last proposition is by
no means universally true. Members of a joint family who succeed to self-acquired property take it
jointly: Rajah Ram Narain Singh v. Pertum Singh 20 Suth. W. R. 189., and see Rampershad
Tewarry v. Sheochurn Doss (1866) 10 Moore's Ind. Ap. 490.; but it may be that where sons succeed
the inheritance as to them is unobstructed. Widows succeed jointly: the Tanjore Case 3 Madr. H.
C. 424., Bhugwandeen Doobey v. Myna Baee 11 Moore's Ind. An. 487, 514, 5, B., and Sri Gajapathi
Nilamani Patta, &c. v. Sri Gajapathi Radhamani Patta, &c. L. R. 4 Ind. Ap. 212, 221.; so do
daughters: Aumirtolall Bose v. Rajoneekant Mitter L. R. 2 Ind. Ap. 113, 126., and see Srimuttu
Muttu Vizia Ragunada, &c. v. Dorasinga Tevar.(1871) 6 Madr. H. C. 310.
10. In Jasoda Koer v. Sheo Per shad Singh Ind. L. R. 17 Calc. 33. the High Court of Calcutta
certainly decided that the sons of a daughter (she being the only child) succeeded to their
grandfather's property in undivided moieties and not jointly with benefit of survivorship. This
decision was in 1889; it was followed in 1895 by the High Court of Madras in Saminadha Pillai v.
Thanga-thanni. Ind. L. R. 19 Madr. 70. The decision of the High Court now under appeal is based
upon these authorities. The Calcutta decision appears to their Lordships to have been based upon a
view of Mitakshara law which further investigation shews to be erroneous, namely, upon the view
that, according to the Mitakshara law, the doctrine of survivorship is limited to unobstructed
successions and to the succession to the joint property of re-united coparceners. No authority for
such a limitation can be found anterior to the Calcutta case. The only previous decision directly in
point is Gopalasami v. Chinnasami Ind. L. R. 7 Madr. 458., where the two sons of a daughter were
held to be jointly entitled to their grandfather's property; but the decision was based on the way they
had dealt with the property rather than on the title they acquired on succession. The head-note is
rather misleading on this point. The authorities to which their Lordships have referred, and others
cited by Mr. Mayne and which their Lordships have examined, although not directly in point are
clearly opposed to the general doctrine laid down in the Calcutta case.
11. It does not follow that because the reasons given for a decision are unsatisfactory the decision
itself is erroneous. But in this case the decision in question appears to their Lordships to be opposed
to the principles which regulate the devolution of joint family property to which the Mitakshara law
is applicable, and they therefore cannot adopt the decision in 17 Calc. 33 They think it erroneous.
The decision in 19 Madr 72 and the decision appealed from are both based upon it, and are open to
the same objections.
12. In the result, therefore, their Lordships agree with the District Judge. He, however, considered
that the conduct of the parties and the mode in which the grandsons dealt with and enjoyed -the
property were sufficient to decide the case. But their Lordships do not think that the evidence so
unmistakably negatives ownership in common as distinguished from joint ownership as to render
it safe to decide the case on this ground alone. There is certainly nothing in the evidence which
supports the view that the grandsons held the property in common rather than jointly; there is no
separate dealing with any share. It is not suggested that if they succeeded jointly they ever ceased
to hold it in the same way. The property was treated and dealt with as a whole, and so far joint
ownership rather than ownership in common is the more probable. After their mother's death, and
whilst their father was living, Niladri managed the whole property and acted as his brother's
guardian during his minority, which would hardly have been the case if the brothers had their
separate interests in undivided shares. But there is nothing so clearly decisive either way as to render
it unnecessary, in their Lordships' opinion, to decide the nature of the ownership which was acquired
by the grandsons when they succeeded to the property. It is, however, satisfactory to find that the
decision arrived at is in complete accordance with the mode in which the property has been dealt
with by the family as long as Niladri was alive.
13. Their Lordships will therefore humbly advise His Majesty to dismiss the plaintiff's cross-appeal
(No. 57 of 1900) setting up the will of Venkat Rao, and to allow the defendant's appeal (No. 1 of
1900), and to dismiss the plaintiff's appeal to the High Court with costs, and to reverse the decree
of the High Court so far as it is inconsistent with the decree of the District Judge, and to restore that
decree and to remit the suit (No. 8 of 1893) whence these appeals arise to the High Court for the
purpose of executing or causing to be executed the decree of the District Judge and the order made
on these appeals.
14. It remains only to deal with the costs of the appeals. These must be paid by the plaintiff who
has failed. But their Lordships cannot refrain from expressing their strong disapprobation of the
expense which has been unnecessarily incurred in this case. A joint appendix of moderate
dimensions would have been ample for all the purposes of these appeals. The appellant's legal
advisers in India appear to have endeavoured, but unsuccessfully, to reduce the bulk of matter to be
printed. But, instead of an appendix containing no more than was necessary, several volumes of
over 1000 pages each have been translated and printed at vast expense, setting out accounts running
over many years which it was wholly unnecessary to print and which no one has referred to. Their
Lordships regard such reckless extravagance as an abuse of the rights of suitors, whether appellants
or respondents. The parties to blame are in India, and their Lordships have no power to ascertain
who they are nor to make them responsible for the abuse. Their Lordships will do what they can.
They will call the attention of the High Court of Madras to the case, and suggest to them the
propriety of exercising their jurisdiction over those who conduct litigation and prepare appeals
from, their decisions, and of taking such steps as may be practicable to compel those who are to
blame in this instance to pay the costs unnecessarily incurred. If nothing can be done under existing
regulations, rules should be made to check such gross abuses. Their Lordships will direct the
registrar in taxing the costs to take no account of any of the volumes except the two which were
bound and used at the hearing, and not to allow more in respect of them than he thinks fair and
reasonable.
Muhammad Husain Khan v. Kishva Nandan Sahai, (1937) 39 BOMLR 979 
Hon'ble Judges/Coram: Maugham, S Lal, G Rankin 
Court: Bombay High Court
JUDGMENT
Shadi Lal, J.
1. This is an appeal from a decree of the High Court of Judicature at Allahabad, dated January 23,
1933, which reversed a decree of the Subordinate Judge of Banda, dated January 17, 1929, and
allowed the plaintiff's claim for possession of a village called Kalinjar Tirhati with mesme profits
thereof. One Ganesh Prasad, a resident of Banda in the Province of Agra, was the proprietor of a
large and valuable estate, including the village in dispute died on May 10, 1914, leaving him
surviving a son, Bindeshri Prasad, who was thereupon recorded in the Revenue Records as the
proprietor of the estate left by his father.
2. In execution of a decree for money obtained by a creditor against Bindeshri Prasad, the village
of Kalinjar Tirhati was sold by auction on November 20, Sir 1924; and the sale was confirmed on
January 25, 1925. Bindeshri Prasad then brought the suit, which has led to the present appeal,
claiming. possession of the property on the ground that the sale was vitiated by fraud. He died on
December 25, 1926, and in March, 1927, his widow, Giri Bala,. applied for the substitution of her
name as the plaintiff in the suit. She was admittedly the sole heiress of her deceased husband, and
this application was accordingly granted. She also asked for leave to amend the plaint on (the
ground that under a will made by her father-in-law, Ganesh Prasad, on April! 5, 1914, her husband
got the estate only for his life, and that on the latter's death his life interest came to an end, and the
devise in her favour became operative, making her absolute owner of the estate including the village
in question. She accordingly prayed that, even if the sale be held to be binding upon her husband,
it should be declared to be inoperative as against her rights of ownership.
3. The trial Judge made an order allowing the amendment, and on May 28,. 1927, recorded reasons
to justify that order. But in July, 1927, when the defendants in their additional pleas again objected
to the amendment, the learned Judge framed an issue as to the validity of the amendment. He was,
thereafter, transferred from the district; and his successor, who decided the suit, dismissed it on
various grounds, and one of these grounds was that the amendment of the plaint changed, the nature
of the suit and should not have been allowed. The High Court, on appeal by the plaintiff, has
dissented from that conclusion, and held that the amendment was necessary for the purpose of
determining the real questions in controversy between the parties.
4. On behalf of the defendants, who are the appellants before their Lordships, it is contended that,
while Giri Bala could continue the suit on the cause; of action which accrued to her husband, she
was not entitled to add to it an alternative cause of action which accrued to her in her personal
capacity. It is, however, clear that the suit has been tried on the amended plaint, and1 that the parties
have adduced all the evidence relating to both the causes of action. Their Lordships do not think
that, even if there is any substance in the objection raised to the amendment of the plaint, it should
now be allowed to prevail, and all the time and labour expended on the trial of the suit should be
thrown away. To prevent the mischief which may be caused by the reversal of the decree in a case
of this kind, Section 99 of the Code of Civil Procedure, 1908, provides that no decree shall be
reversed or substantially varied, nor shall any case be remanded in appeal, on account of any
misjoinder of parties or causes of action, or any error, defect or irregularity in any proceedings in
the suit, not affecting the merits of the case or the jurisdiction of the Court. Now, the High Court
has decided that the trial of the suit on the alternative causes of action is sanctioned by the law, and
it is not suggested that the alleged misjoinder of the causes of action has affected the merits of the
case or the jurisdiction of the Court. The issue is now narrowed down to the simple point whether,
even if there was a misjoinder, their Lordships should, on that ground, reverse the decree granted
by the High Court. The provisions contained in the Civil Procedure Code do not regulate the
procedure of their Lordships in hearing appeals from India, but there can be no doubt that the rule
embodied in Section 99 proceeds upon a sound principle, and is calculated to promote justice; and
their Lordships are not prepared to adopt a course which would merely prolong litigation. Assuming
that the High Court has erred in overruling the objection to the amendment and in upholding the
trial on both the causes of action, they do not think that the trial should be rendered abortive, when
the alleged misjoinder has affected neither the merits of the case nor the jurisdiction of the Court.
5. The next question for determination is whether Giri Bala has established her title to the village
in dispute, and the answer to that question depends upon the jactum and the validity of the will
alleged to have been made, on April 5, 1914, by her father-in-law, Ganesh Prasad, upon which she
founds her claim. Now, it may be stated at the outset that the original will has been lost, and its
contents are proved by two copies, the authenticity of which has not been challenged. But before
examining the terms of the will, it is necessary to give a brief history of certain circumstances which
are said to have led to its execution. It appears that in 1898 Ganesh Prasad applied to the
Government of his province to take over the management of his estate. In compliance with his
request the Court of Wards took charge of the estate and continued to manage it until his death in
May, 1914. During the last four years of his life he made several attempts to get his estate released!
from the management of the Court of Wards, but these attempts were unsuccessful. He had only
one son, Bindeshri Prasad, but his relations with the son were strained. The father was displeased
with the son because of his unsatisfactory character and extravagant habits. Accordingly he made a
will at Allahabad on August 4, 1911, and got it registered there on August 5, By this will he
dedicated the whole of his estate to certain charitable and religious purposes, and appointed seven
persons to be the executors of the will and the trustees to carry out the trusts. One of these seven
persons was the Collector of his own district, Banda, and, at that time, the Collector was one Mr.
Swan, a member of the Indian Civil Service. A copy of the will was sent by the testator to Mr.
Swan, who was, therefore, cognizant of the execution as well as of the contents thereof.
6. By this will the testator not only deprived Bindeshri Prasad of inheritance, but made no provision
for his daughter-in-law, Giri Bala, or for any children who might be bom to her.
7. In the beginning of 1914 there was an outbreak of bubonic plague at Banda, and Ganesh Prasad,
therefore, left that place to live in Motihari, one of the villages comprised in his estate. He was at
that time ill and was attended by a physician. While he was living there, the will relied upon by the
plaintiff is said to have been executed by him on April 5, 1914. It revoked the previous will of 1911
and made various devises which will be discussed hereinafter. Thereafter, when there was ao
abatement in the epidemic, he returned to Banda and died there on May 10, 1914.
8. Thereupon, the Collector, Mr. Swan, took immediate steps to guard the rooms in which the
deceased used to keep his valuables and important document in compliance with the direction of
the Collector, one Pandit Ram Adhin Shukla, a Deputy Collector and Magistrate of Banda, went to
the use or the deceased on the afternoon of May 10, and locked up both the rooms in that house
which contained several locked boxes and valuable properties belonging to the deceased. On the
following day he submitted his report in writing to the Collector.
9. The trustees appointed by the will of 1911 were, at that time, ignorant of the fact that it had been
revoked by a subsequent testament, and, considering that it became operative on the death of the
testator, four of them made an application, on June 3, 1914, to the High Court at Allahabad for
probate of the will. They filed with their application a certified copy of that will, and stated that the
original will was probably among the papers of the deceased in his house, of which the Collector
had taken charge. On June 29, 1914, the High Court ordered citations to issue, and directed the
Collector of Banda to transmit the original will to the Registrar of the Court. In the meantime the
Collector, who knew of the application for probate pending in the High Court, had sent a Deputy
Collector, Pandit Hari Har Nath Mutto, to the house of the deceased, and asked him to examine the
papers in the rooms which had been locked on May 10, 1914. The Deputy Collector opened the
locks of the rooms on June 28 and made a search for the will of 1911. That will was not found there,
but another will, dated April 5, 1914, was found by him. Upon that will he made an endorsement
mentioning the exact place from which it was recovered, and also the names of the persons in whose
presence it was found. He sent this will with his report to the Collector.
10. It must be stated here that the Collector was fully acquainted with the hand-writing of the
deceased, who had been working under him: as an Honorary Magistrate for many years, but he did
not, on examining the signatures of the testator on the will, suspect their genuineness. Indeed, he
wrote to the Registrar of the High Court on July 11, 1914, a letter stating that the will of 1911 could
not be found among the papers of the deceased, but that a later will was found, revoking the earlier
will. On July 15, he sent the original will of 1914 to the Government Advocate at Allahabad and
instructed him to oppose, the grant of probate of the will of 1911, and to produce the will of 1914
in the probate proceedings then pending in the High Court. On the same date he wrote to the
Commissioner of the Division, to whom he was subordinate, and also to the Legal Remembrancer
to the Local Government, informing them of what he had written to the Government Advocate. He
also stated that "there is no reason whatever to doubt the authenticity of the later will.
11. As instructed by the Collector of Banda, the Government Advocate produced the original will
in the High Court on July 27, 1914, when the probate case came on for hearing. The High Court
directed the Registrar to take charge of the will pending further orders.
12. In the meanwhile, Bindeshri Prasad had not only lodged a caveat in the High Court against the
grant of probate of the will of 1911, but also applied Khan to the Revenue Officer, for mutation, in
respect of the property left by his father, to be effected in his favour, on the ground that the estate
was ancestral arid that he was entitled to it by right of survivorship. On October 5, 1914, a
compromise was effected in the course of the mutation proceedings between Bindeshri Prasad on
the one side and the trustees under the Sir Shadi' Lai will of 1911 on the other. One of the trustees,
who was a resident of Allaha-bad, had died; and there were, at that time, five trustees who belonged
to Banda, and the Collector, who was an ex offlcio trustee. These five trustees stated that the second
will was genuine and bore the signatures of Ganesh Prasad, and they agreed to let Bindeshri Prasad
remain in proprietary possession of the estate of his father " as provided1 in the second will of April
5, 1914." They also undertook to apply to the High Court to dismiss their application for probate.
At the same time, Bindeshri Prasad agreed to be responsible for all the debts of his father, and to
create a trust of a house comprised in the estate to be used as a dharamsala, and, also to pay Rs. 300
per annum to defray the expenses of the Ram Lila festival at Banda.
13. On October 12, 1914, the trustees asked the Collector to transmit to the High Court their
application embodying the compromise and praying that their application for probate of the, will of
1911 might be dismissed, on the ground that it had been revoked by the later will of 1914. They
also stated in their application that they were " completely satisfied that the second will of April 5,
1914, is perfectly genuine," and that it bears the signatures of Ganesh Prasad and the two attesting
witnesses.
14. On November 7, 1914, the High Court accordingly dismissed the application for probate, and
this order of dismissal was followed in December by an order of the Revenue Officer sanctioning
mutation of immovable property in favour of Bindeshri Prasad instead of his father. On the
conclusion of the proceedings in the High Court, Mr. Malcomson, the Government Advocate,
applied to the High! Court for the return of the original will of 1914; and it was made over to him
on January 13, 1915. There is ho doubt that the will was delivered by the High Court to Mr.
Malcomson, but there is no evidence to show what happened to it thereafter. The plaintiff has
proved that a search was made for the original document, but it has not been discovered.
15. On these facts it must be held that the original will of 1914 has been lost, and the plaintiff is,
therefore, entitled to produce secondary evidence of its contents. The secondary evidence consists
of two certified copies of the original document, the copy was made when the original was in the
custody of the Collector, and the second copy was obtained from the High Court. Neither the
genuineness nor the accuracy of these copies has been challenged, but they prove only the contents
of the document which purported to be the will executed by Ganesh Prasad on April 5, 1914. It is
obvious that they R. 124 cannot prove that the) original, of which they are copies, was executed by
the' testator.
16. What is the evidence to prove its execution by Ganeah Prasad? That evidence is furnished by
the testimony of the scribe Mahabir Prasad. This witness was, in 1914, acting as the agent of Ganesh
Prasad in his village Motihari, and he states that Ganesh Prasad, who had come to live there in the
beginning of 1914 owing to the outbreak of plague at Banda, gave him a draft of the will which he
intended to execute, and asked him to make a fair copy of, it. The witness accordingly prepared a
fair copy, which was then signed by Ganesh Prasad and attested by two persons, Jugal Kishore,
who was. his physician and was treating him in his illness, and Piare Lai Dube, who- was his tenant.
These persons having died could not be examined as witnesses; but the Deputy Collector, who
recovered the original will in June, 1914, satisfied himself after taking down their statements that
it was the will. of Ganesh Prasad.
17. The certified copies show that the1 will bore two signatures of the testator, one in clearly legible
handwriting, and the other in running hand; but there is nothing suspicious in that fact, as even the
admittedly genuine will of 1911 was signed by him twice.
18. There is also evidence of several witnesses, who saw the original document immediately after
its recovery and had no difficulty in recognizing both the signatures of the testator on it. It is
significant that these witnesses included some of the persons who were trustees under the will of
1911, and there is no reason to impeach their veracity. Indeed, in their application submitted to the
High Court on October 12, 1914, they, as stated above, had declared m unequivocal terms that they
were familiar with the handwriting of Ganesh Prasad, and had satisfied themselves that the
signatures of the testator on the will of 1914 were genuine. The learned Judges of the High Court
have repelled the suggestion that the trustees were actuated by improper motives when they
accepted the genuineness of the will; and their Lordships, after examining the evidence to which
their attention has been invited, concur in their conclusion.
19. Mr. Swan, the Collector of Banda, who was familiar with the handwriting; of Ganesh Prasad,
also recognized his signatures on the will when it was sent to him by the Deputy Collector; and he
informed all the persons concerned of the recovery of the document and of its genuineness. He also
asked them to take steps in conformity with its provisions. This circumstance must be regarded as
an important corroboration of the direct evidence in support of the genuineness of the will.
20. It is true that unfortunately the relations between the father and the son were strained, and to
prove that fact the appellants desired to produce in evidence certain documents which were oh the
record of the Court of Wards. They asked the Court of Wards for an inspection of those documents,
but their request was refused. An application has been made to their Lordships that they should
direct the Court of Wards to transmit to the Registrar of the Privy Council the desired documents,
or remit the case to India for the reception of the additional evidence. The refusal of the Court of
Wards-was perhaps not justified, but their Lordships do not think that any useful purpose would be
served by postponing the determination of this appeal, as the enmity between the father and the son,
which was sought to be proved by the additional evidence, cannot be seriously disputed. Indeed, it
was this enmity which led the father to make the will in 1911, which, as stated, made no provision
for either the son or the son's wife, or even his own mistress. It was obviously an improvident will,
and when he fell ill, he probably thought that he should, before dying, make suitable provision for
his relatives and dependents. There is also evidence to show that the son was with his father shortly
before the latter's death, and that there was a reconciliation between them.
21. Whether there was a complete reconciliation with the son or not, it was only to be expected that
the deceased would realize the gravity of the harm which would be caused by the will of 1911. It
would, not only disinherit his only son, but also leave his daughter-in-law, for whom he had a great
regard and sympathy, without any provision. There was also his mistress, Jairaj Kuar; and it was
only fair that a suitable maintenance should be provided for her. Moreover, he could not be
unmindful of the fact that, if his daughter-in-law gave birth to a son or adopted a boy, there would
be no property which he could inherit. In these circumstances it was only natural and right that he
should; make another will providing for all the persons who had claims upon his affection or bounty.
The will in question did what a person in the position of Ganesh Prasad might be expected to do. It
gave only a life interest to Bindeshri Prasad, which, while enabling him to realise the income of the
estate during his lifetime, prevented him from disposing of the property. It also provided that, on
the death of Bindeshri Prasad, the estate should devolve upon the latter's son, natural or adopted,
and that, in the absence of any such son, it should become the absolute property of his daughter-in-
law. But the holder of the estate for the time being was directed to pay Rs. 50 a month to the mistress
of the testator.
22. No reasonable objection could be taken to these provisions of the will, and it is noteworthy that
in 1914, when the will was recovered from the house of the deceased, there was no suggestion made
by any person that it was a forged document. Indeed, the persons, who now condemn it as a forgery,
have not made any attempt to prove their allegation or to rebut the evidence, direct as well as
circumstantial, led by the plaintiff to establish its execution by Ganesh Prasad. Their Lordships,
therefore, agree with the High Court that the issue as to the factum of the will must be decided in
favour of the plaintiff.
23. The validity of the will is challenged on the ground that the testator had. no authority to dispose
of the property, as it belonged to a Hindu coparcenary consisting of himself and his son. It is
common ground that the property was inherited by Ganesh Prasad from his maternal grandfather,
Jadu Ram; and the question arises whether it was ancestral in his hands in the sense that his son
acquired therein an interest by birth jointly with him. There is a diversity of judicial opinion upon
this question in India, vide, inter alia, Karuppai Nachiar v. Sankarnaryanan Cketty (1903) I.L.R. 27
Mad. 300 F.B. Jamna Prasad v. Ram Partap (1907) I.L.R. 29 All. 667 and Bishwmath Prasad Sahu
v. Ganjadhar Prasad (1917) 3 P.L.J. 168. But the matter is of considerable practical importance, and
their Lordships think that it should not be left in a state of uncertainty.
24. The learned Counsel for the appellants argues that the property inherited Khan a daughter's son
from his maternal grandfather is ancestral property, and he relies, in support of his argument, upon
the expression "ancestral property" as used in the judgment of this Board in Raja Chelikani
Venkayyamma Garu v. Raja Chelikani Venkataramanayyamma (1902) L.R. 29 I.A. 156, s.c. 4
Bom. L.R. 657 in describing the property which had descended from the maternal grandfather to
his two grandsons. It is to be observed that the grandsons referred to in that case were the sons of a
daughter of the porosities, and constituted a with right of survivorship. On the death of their mother
they succeeded to the estate of their maternal grandfather, and continued to be joint in estate until
one of the brothers died. Thereupon, the widow of the deceased brother claimed to recover a moiety
of the estate from the surviving brother. The question formulated by the Board for decision was,
whether the property of the maternal grandfather descended, on the death of his daughter, to her
two sons jointly with benefit of survivorship, or in common without benefit of survivorship. This
was the only point of law which was argued before their Lordships, and it does not appear that it
was contended that the estate was ancestral in the restricted sense in which the term is used in the
Hindu law. Their Lordships decided that the estate was governed by the rule of survivorship, and
the claim of the widow was, therefore, negatived. The brothers took the estate of their maternal
grandfather at the same time and by the same title, and there was apparently no reason why they
should not hold that estate in the same manner as they held their other joint property. The rule of
survivorship, which admittedly governed their other property, was held to apply also to the estate
which had come to them from their maternal grandfather. In these circumstances it was unnecessary
to express any opinion upon the abstract question of whether the property, which a daughter's son
inherits from his maternal grandfather, is ancestral property iffl the technical sense that his son
acquires therein by birth an interest jointly with him. This question was neither raised by the parties
nor determined by the Board. It appears that the phrase " ancestral property," upon which reliance
is placed on behalf of the appellants, was used in its ordinary meaning, namely, property which
devolves upon a person from his ancestor, and not in the restricted- sense of the Hindu law which
imports the idea of the acquisition of interest on birth by a son jointly with his father.
25. There are, on the other hand, observations in a later judgment of the Board in Atar Singh v.
Thakar Singh (1908) L.R. 35 I.A. 206 which are pertinent here. It was stated in that judgment that
unless the lands came "by descent from a lineal male ancestor in the male line, they are not deemed
ancestral in Hindu law." This case, however, related to the property which came from male
collaterals, and not from maternal grandfather; and it was governed by the custom of the Punjab,"
but it was not suggested that the custom differed from the Hindu law on the issue before their
Lordships.
26. The rule of Hindu law is well-settled that the property which a maninherits from any of his three
immediate paternal ancestors, namely, his father, father's father and father's father's father, is
ancestral property as regards his male issue, and his son acquires jointly with him an interest in it
by birth. Such property is held by him in coparceners with his male issue, and the doctrine of
survivorship applies to it. But the question raised by this appeal is whether the son acquires by birth
an interest jointly with his father in the estate, which the latter inherits from his maternal grand
father. Now, Vijnanesvara, the author of Mitakshara, expressly limits such right by birth to an estate
which is paternal or grand-paternal. It is true that Colebrooke's translation of the 27th sloka of the
first section of the first chapter of Mitakshara, which deals with inheritance, is as follows : "It is a
settled point that property in the paternal or ancestral estate is by birth. "But Colebrooke apparently
used the word "ancestral" to denote grand-paternal, and did not intend to mean that in the estate,
which devolves upon a person from his male ancestor in the maternal line, his son acquires an
interest by birth. The original text of the Mitakshara shows that the word used by Vijnanesvara,
which has been translated by Colebrooke as "ancestral," is pmtamaha which means belonging to
pitamaha. Now, pitamaha ordinarily means father's father, and, though it is sometimes used to
include any paternal male ancestor of the father, it does not mean a maternal male ancestor.
27. Indeed, there are other passages in Mitakshara which show that it is the property of the paternal
grandfather in which the son acquires by birth an interest jointly with, and equal to that of, his
father. For instance, in the 5th sloka of the fifth section of the first chapter, it is laid down that in
the property "which was acquired by the paternal grandfather...the ownership of father and son is
notorious; and, therefore, partition does take place. For, or because, the right is equal, or alike,
therefore, partition is not restricted to be made by the father's choice, nor has he a double share."
Now, this is the translation of the sloka by Colebrooke himself, and it is significant that the Sanskrit
word, which is translated by him as "paternal grandfather," is pitamaha. There can, therefore, be no
doubt that the expression " ancestral estate" used by Colebrooke in translating the 27th sloka of the
first section of the first chapter was intended to mean grand-paternal estate. The word "ancestor" in
its ordinary meaning includes an ascendant in the maternal, as well as the paternal, line; but the
"ancestral" estate, in which, under the Hindu law, a son acquires jointly with his father an interest
by birth, must be confined, as shown by the original text of the Mitakshara, to the property
descending to the father from his male ancestor in the male line. The expression has sometimes
been used in its ordinary sense, and that use has been the cause of misunderstanding.
28. The estate, which was inherited by Ganesh Prasad from his maternal grandfather, cannot, in
their Lordships' opinion, be held to be ancestral property in which his son had an interest jointly
with him. Ganesh Prasad Consequently had full power of disposal over that estate, and the devise
made by him in favour of his daughter in-law, Giri Bala, could not be challenged by his son or any
other person. On the death of her husband, the devise in her favour came into operation against her
husband could not adversely affect her title.
29. For the reasons above stated, their lordships are of opioion that the decree of the High Court
should be affirmed, and this appeal should be dismissed with costs. They will humbly advise His
Majesty accordingly.
C. Krishna Prasad v. C. I. T. Bangalore, AIR 1975 SC 498
Hon’ble Judges/Coram: Hon'ble Mr. Justice Hans Raj Khanna, Hon'ble Mr. Justice A.C.
Gupta
Summary: Income Tax Act., 1961, ss. 2(31) and 4 - Charging of income Tax - HUF -
Partition - Unmarried member obtaining share - His status for assessment - Held, his status
for assessment held, is individual and not HUF - Appeal Dismissed.
JUDGEMENT
Hans Raj Khanna, J
1. This appeal on certificate is against the judgment of the Mysore High Court whereby the High
Court answered the following question referred to it u/s. 256(1) of the Income-tax Act, 1961
(hereinafter referred to as the Act) in the affirmative in favour of the revenue and against the
assessee-appellant :
"Whether on the facts and in the circumstances of the case the assessee, was rightly assessed in the
status of an individual for the assessment year 1964-65 ?"
2. C. Krishna Prasad assessee-appellant along with his father Krishnaswami Naidu and brother C.
Krishna Kumar formed a Hindu undivided family up to October 30, 1958, when there was a
partition between Krishnaswami Naidu and his two sons. In the said partition the assessee got some
house properties and vacant sites. The partition was recognised by the department and an order
under section 25-A of the Indian Income-tax Act, 1922 was passed recognising the partition with
effect from November 1, 1958.
3. On the date of partition and also during the relevant period, i.e., the year ending on March 31,
1964, the assessee was unmarried. Up to the year 1963-64 the assessee was assessed in the status
of an individual. For the assessment year 1964-65 the assessee filed a return showing his status as
an individual. In the Course, however, of the assessment proceedings for the assessment year 1964-
65 the assessee claimed that he should be assessed in the status of a Hindu undivided family. The
income-tax officer did not accept the claim of the assessee and held that his status was that of an
individual. The order of the income-tax officer was affirmed on appeal by the Appellate Assistant
Commissioner and on further appeal by the Appellate Tribunal. At the instance of the assessee, the
question reproduced above was referred to the High Court. The High Court, as already mentioned,
agreed with the departmental authorities and answered the question against the assessee.
4. The short question which arises for determination, as would appear from the resume of facts
given above, is whether an unmarried male Hindu on partition of a joint Hindu family can be
assessed in the status of a Hindu undivided family even though no other person besides him is a
member of the alleged family. This Court in the case of Gowli Buddanna v. Commissioner of
Income-tax Mysore([1966] 60 T.T.R, 293)1966 Indlaw SC 205 refrained from expressing an
opinion on the point "whether a Hindu undivided family pay for the purposes of the Indian Income
- tax Act be treated as taxable entity when it consists of a single member-male or female."
5. After hearing the learned counsel for the parties, we are of the opinion that the question which
arises for determination in this appeal should be answered against the assessee. S. 4 of the Act
provides for the charging of income-tax on the total income of every person subject to the
conditions prescribed in that s.. "'Person" has been defined in s. 2(31) of the Act and includes, inter
alia, an individual and a Hindu undivided family. The inherent fallacy of the case set up on behalf
of the assessee-appellant in our opinion, is that according to him a single individual can constitute
a Hindu undivided family and be assessed as such. "Family" connotes a group of people related by
blood or marriage. According to Shorter Oxford English Dictionary, 3rd Ed. the word "Family"
means the group consisting of parents and their children, whether living together or not; in wider
sense, all those who are nearly connected by blood or affinity; a person's children regarded
collectively; those descended or claiming descent from a common ancestor; a house, kindred,
lineage; a race; a people or group of peoples. According to Aristotle (Politics 1), it is the
characteristic of man that he alone has any sense of good and evil, or just and unjust, and the
association of living beings who have this sense make a family and a State. It would follow from
the above that the word "Family" always signifies a group. Plurality of persons is an essential
attribute of a family. A single person, male or female, does not constitute a family. He or she would
remain, what is inherent in the very nature of things, an individual, a lonely wayfarer till per chance
he or she finds a mate. A family consisting of a single individual is a Contradiction in' terms. S.
2(31) of the Act treats a Hindu undivided family as an entity distinct and different from an
individual and it would, in our opinion, be wrong not to keep that difference in view. It is well
settled that a Hindu joint family consists of all persons lineally descended from a common ancestor
and includes their wives and unmarried daughters.
6. A Hindu coparcenary is a much narrower body than the joint family; it includes only those
persons who acquire by birth an interest in the joint or coparcenary property, these being the sons,
grandsons, and great-grandsons of the holder of the joint property for the time being. The plea that
there must be at least two male members to form a Hindu undivided family as a taxable entity has
no force. Under Hindu law a joint family may consist of a single male member and widows of
deceased male members. The expression "Hindu undivided family" in the Income-tax Act is used
in the sense in which a Hindu joint family is understood under the various schools of Hindu law
(see Attorney-General of Ceylon v. Ar. Arunachalwn Chattiar & Ors.( [1958] 34 I.T.R. 42) and
Gowli Buddana v. Commissioner of Income-tax Mysore (supra). 1962 Indlaw MYS 28 In the case
of Commissioner of Income-tax Madras v. Ram Ar. Ar. Veerappa Chettiar([1970] 76 I.T.R. 467)
1969 Indlaw SC 199 this Court observed that under the Hindu law it is not predicated of a Hindu
joint family that there must be a male member. It was accordingly held that so long as the property
which was originally of the joint Hindu family remains in the hands of the widows of the members
of the family and is not divided among them, the joint family continues. One thing significant which
follows from the above is that the assessment in the status of a Hindu undivided family can be made
only when there are two or more members of the Hindu undivided family.
7. The share which a coparcener obtains on partition of ancestral property is ancestral property as
regards his male issue. They take an interest in it by birth, whether they are in existence at the time
of partition or are born subsequently. Such share, however, is ancestral property only as regards his
male issue. As regards other relations, it is separate property, and if the coparcener dies without
leaving male issue, it passes to his heirs by succession (see p. 272 of Mulla's Principles of Hindu
Law 14th Ed). A person who for the time being is the sole surviving coparcener is entitled to dispose
of the coparcenary property as if it were his separate property. He may sell or mortgage the property
without legal necessity or he may make a gift of it. If a son is subsequently born to him or adopted
by him, the alienation, whether it is by way of sale, mortgage or gift, will nevertheless stand, for a
son cannot object to alienations made by his father before he was born or begotten. In view of the
above it cannot be denied that the appellant at present is the absolute owner of the property which
fell to his share as a result of partition and that he can deal with it as he wishes. There is admittedly
no female member in existence who is entitled to maintenance from the above mentioned property
or who is capable of adopting a son to a deceased coparcener. Even if the assessee-appellant in
future introduces a new member into the family by adoption or otherwise, his present full ownership
of the property cannot be effected. Such a new member on becoming a member of the coparcenary
would be entitled to such share in 'the property as would remain un disposed of by the assessee.
8. In order to determine the status of the assessee for the purpose of income-tax, we have to look to
the realities as they exist at present and it would not be correct to project into the matter future
possibilities which might or might not materialise. This would indeed amount to speculation and
the same is not permissible excursions to the realm of speculation may be legitimate and justified
when one is engaged in the study of philosophy and metaphysics; they are wholly unwarranted
when one is dealing with the mundane subject of the status of the assessee for the purpose of the
income-tax assessment. For this Purpose we have to look to facts as they exist and emerge from the
record and not to what they may or may not be in future. As things are at present in the instant case,
there can in our view he hardly any doubt that the assessee is an individual and not a family.
9. Mr. Desai on behalf of the appellant has referred to the case of Anant Bhikappa Patil v. Shankar
Ramchandra Patil.( A.I.R. (30) 1943 P. C. 196) 1943 Indlaw PC 31 As considerable reliance has
been placed upon that case, it may be necessary to deal with that case, at some length. The dispute
in that case was between parties governed by Hindu law and related to watan lands, The pedigree
table of the parties was as under DHULAPPA Punnappa Hanamantappa d. 1901 Gundappa
Narayan d. 1902 d. 1908 Ramchandra Bhikkappa d. 1905 =Gangabai Keshav Anant Shankar
Hanmant Babu d. 1917 adopted defendant 1930 plantiff Dhulappa's sons Punnappa and
Hanumantappa separated in 1857.
10. The watan lands in dispute went to the share of Punnappa, Narayan, one of the sons of
Punnappa, Separated from him in his lifetime. Thereafter Punnappa died in 1901. Bhikappa died in
1905, leaving his widow Gangabai and son Keshav. Narayan died issueless, in 1908 leaving two
plots of watan lands. On the remarriage of the widow of Narayan, those two plots devolved by
inheritance on Keshav. Keshav died unmarried in 1917. At that time his nearest heir was his
collateral Shankar defendant. Shankar obtained possession 1928 of the land in dispute, which had
been left by Keshav after bringing a suit, against Gangabai. In 1930 Gangabai adopted Anant
plaintiff 'as a son to her deceased husband Bhikappa. In 1932 Gangabai as the next friend of Anant
brought suit for possession of the land in dispute against Shankar. The trial court decreed the suit.
On appeal the High Court dismissed the suit for possession. On further appeal the Judicial
Committee restored the decree of the trial court. It was held by the Judicial Committee that the,
power of a Hindu widow to adopt does not come to an end on the death of the sole surviving
coparcener. Neither does it depend upon the vesting or divesting of the estate, nor can the right to
adopt be defeated by partition between the coparceners.
11. The Judicial Committee also held that on the death of a sole surviving coparcener a, Hindu joint
family cannot be finally brought to an end while it is possible in nature or law to add a male member
to it. The family cannot be at an end while there is still a potential mother if that mother in the way
of nature or in the way of law brings in a new male member- The Judicial Committee further held
that an adopted son can claim as preferential heir the estate of any person other than his adoptive
father if such estate has vested before the adoption in some heir other than the adopting mother.
12. The above case, in our opinion, can hardly be of any assistance to the assessee-appellant. As
would appear from the facts of that case, the question involved there related to the adoption by a
widow after the death of the sole surviving coparcener. The question with which we are concerned,
as to whether one individual can constitute a Hindu undivided family, Was not before the Judicial
Committee and it expressed no opinion on that question. According to Mr. Desai it is implicit in
that judgment that from 1917 when Keshav died till 1930 when Anant plaintiff was adopted, there
was a joint Hindu family even though the joint family consisted of Gangabai alone. We find it
difficult to agree with Mr. Desai in this respect as would appear from the facts of that case, Anant
was adopted by Gangabai as a son of Bhikappa. It is now firmly established that the rights of the
adopted son relate back to the date of the adoptive father's death and the adopted son must be
deemed by a fiction of law to have been in existence as the son of the adoptive father at the time of
latter's death (see v. 543 of Mullah's Principles of Hindu Law 14th Ed.).
13. This principle of relation back is subject to certain exceptions but we are not concerned with
them. As Bhikhappa died in 1905, Anant should be deemed to have been in existence as the son of
Bhikappa at the time of latter's death in 1905. A necessary corollary of the above legal fiction would
be that Anant as the adopted, on of Bhikappa would be taken to be in existence during the years
1917 to 1930. Gangabai consequently cannot be considered to be the sole member of the Hindu
undivided family during the above period.
14. There is no merit in the appeal. It is accordingly dismissed with costs.

Appeal dismissed
Kshetra Mohan-sannyasi Charan Sadhukhan v. Commissioner of Excess Profits Tax, West
Bengal, AIR 1953 SC 516
Hon'ble Judges/Coram: M. Patanjali Sastri, C.J., Ghulam Hasan, N.H. Bhagwati, Sudhi
Ranjan Das and Vivian Bose, JJ.
Case Note:
Direct Taxation - change in person - Sections 26-A, 66 (1) and 66-A (2) of Indian Income-tax
Act and Sections 7, 8 (1) and 21 of Excess Profits Tax Act, 1940 - appeal from judgment and
Order of High Court affirming Order of Income-tax Appellate Tribunal - Assessee claimed
for carry forward of deficiencies from previous years up to chargeable accounting year -
Assistant Commissioner denied claim - affirmed by High Court - business carried on by two
Hindu Undivided Families - families disrupted - business carried on by individual member
forming new partnership firm - not same persons as those who carried on the business
earlier - Supreme Court held, deficiencies cannot be carried forward.
JUDGEMENT
Das, J.
1. This is an appeal from the judgment and order pronounced on the 20th June, 1951, by a Bench
of the Calcutta High Court on a reference made by the Income-tax Appellate Tribunal under section
66(1) of the Income-tax Act read with section 21 of the Excess Profits Tax Act whereby the High
Court answered in the affirmative the following question :-
"Whether on the facts and circumstance of this case there is a change in the persons carrying on the
business within the meaning of section 8(1) of the Excess Profits Tax Act, 1940, with effect from
14th of the April, 1943, when the business, which had previously been carried on in partnership
between two Dayabhaga Hindu undivided families, was carried on by a partnership between the
separated male members of the two families ?"
2. The controversy arose at the time of the assessment of the appellant firm to excess profits tax for
three chargeable accounting periods, namely, 14th April, 1943, to 13th April, 1944, 14th April,
1944, to 13th April, 1945, and 14th April, 1945, to 31st March, 1946. During the aforesaid
chargeable accounting periods the status of the assessee was that of a firm registered under section
26-A of the Indian Income-tax Act. In the chargeable accounting period ending 13th April, 1944,
there was no profit in excess of the standard profit but there was a deficiency of Rs. 12,804. The
assessee claimed that the total deficiencies amounting to over Rs. 84,000 carried forward from
previous years up to the chargeable accounting period ending 13th April, 1943, should be added to
the sum of Rs. 12,804 and the aggregate amount should be carried forward under section 7 of the
Excess Profits Tax Act. The Excess Profits Tax rejected this contention on the ground that there
had been a change in the persons carrying on the business and the old business should be deemed
to have been discontinued and a new business to have commenced within the meaning of section 8
of the Excess Profits Tax Act and carried over only Rs. 12,804. In the chargeable accounting period
ending 13th April, 1945, there was a profit of Rs. 88,652 over the standard profit and the Excess
Profits Tax Officer allowed only Rs. 12,804 as the deficiency brought forward and assessed the
firm for the net excess of Rs. 75,848. He rejected the contention of the assessee that the deficiency
which accrued before 14th March, 1943, should also be deducted from the excess profits of this
chargeable accounting period. In the chargeable accounting period ending 31st March, 1946, no
deduction whatever was allowed on account of the deficiency that was said to have accrued up to
the chargeable accounting period ending 13th April, 1943.
3. There were three separate appeals by the assessee to the Appellant Assistant Commissioner
against the three orders of the Excess Profits Tax Officer. The Appellate Assistant Commissioner
confirmed the assessments and dismissed the appeals. Further appeals were taken to the Income-
tax Appellate Tribunal. By an order made on the 25th July, 1949, the Appellate Tribunal dismissed
all the three appeals. Thereupon three applications were made before the Appellate Tribunal under
section 66(1) of the Indian Income-tax Act read with section 21 of the Excess Profits Tax Act. The
Appellate Tribunal thereupon drew up a statement of case and submitted for the opinion of the High
Court the question referred to above. The High Court, in agreement with the Appellate Tribunal,
answered the question in the affirmative. Hence the present appeal under a certificate granted by
the High Court under section 66-A(2) of the Indian Income-tax Act.
4. According to learned counsel who appears in support of this appeal Kshetra Mohan Sadhukhan
and Sannyasi Charan Sadhukhan who were two brothers governed by the Dayabhaga School of
Hindu law separated from each other many years ago. The two separated brothers, as kartas of their
respective families, started a business in partnership under the name and style of Kehetra Mohan
Sadhukhan and Sannyasi Charan Sadhukhan, each having an eight-annas share in the profit and
loss thereof. Sannyasi Charan Sadhukhan died in 1932 and his sons were admitted into the
partnership and the business was continued by Kshetra Mohan Sadhukhan and the sons of Sannyasi
Charan Sadhukhan. Kshetra Mohan Sadhukhan died in 1934 and on and from 17th June, 1934, the
sons of Kshetra Mohan Sadhukhan and the sons of Sannyasi Charan Sadhukhan continued the
business in partnership.
5. Although this business was carried on in partnership, the members of each branch as between
themselves constituted a separate Hindu undivided family right up to the 13th April, 1943, when
there was a severance of both the families inter se. The business, however, carried on by the
members of the two branches in partnership continued. A deed of partnership is said to have been
executed between the right partners on the 19th September, 1943, and eventually another deed of
partnership was executed on the 28th December, 1944. Learned counsel's contention is that the firm
was originally a partnership of two Hindu undivided families represented by their respective kartas
Kshetra Mohan Sadhukhan and Sannyasi Charan Sadhukhan and that on and from the 17th June,
1934, the sons of Kshetra Mohan Sadhukhan and the sons of Sannyasi Charan Sadhukhan
individually became partners in the firm and the firm has remained so constituted at all material
times and that there has been no change in the persons carrying on the business within the meaning
of section 8 of the Excess Profits Tax Act. It appears to us that this is an entirely new case which is
not now open to the assessee to put forward.
6. In the course of the assessment the Excess Profits Tax Officer found that previous to 14th April,
1943, the business was carried on by two Hindu undivided families, that on 13th April, 1943, both
the families were disrupted and since then the individual members of the two families began
carrying on the business after forming a partnership concern and accordingly these new partners
were not the same persons as the persons who carried on the business up to 13th April, 1943. The
case made by the assessee before the Appellate Assistant Commissioner was that the business was
carried on by the two Hindu undivided families right up to 13th April, 1943, when there was a
disruption of both the families inter se and that after that day the eight individual members formed
themselves into a partnership and carried on the business. Before the Appellate Tribunal also the
same case was made, namely, that up to 13th April, 1943, the business was a partnership concern
of two Dayabhaga Hindu undivided families, namely, the family of Kshetra Mohan Sadhukhan
consisting of four adult male members and the family of Sannyasi Charan Sadhukhan also
consisting of four adult male members and that from 14th April, 1943, the eight members of the
two families constituted themselves into a partnership and carried on the business as such, although
the contention of the assessee at one stage was that though the original partnership was entered into
by the two kartas of the two families, in effect the partnership was between the adult members of
the two families even at the inception. However, in its application under section 66(1) an attempt
was made for the first time to suggest yet another case, namely that prior to 13th April, 1943, the
business was carried on in partnership by two associations of persons and not by two Hindu
undivided families, implying that before that date the business was carried on by the eight individual
members of the two families. It was not suggested at any time before that at first there was a
partnership of two kartas and then a partnership of the eight sons of the two kartas on and from the
17th June, 1934, and that such partnership of eight continued ever since then.
7. Learned counsel for the assessee maintains that there has not been any variance in the case made
by his client inasmuch as the partnership which, according to him, was being carried on by and
between the individual members of one Hindu undivided family, namely, the four sons of Kshetra
Mohan Sadhukhan and the individual members of another Hindu undivided family, namely, the
four sons of Sannyasi Charan Sadhukhan may well have been described as a partnership between
two Hindu undivided families. A Hindu undivided family is no doubt included in the expression
"person" as defined in the Indian Income-tax Act as well as in the Excess Profits Tax Act but it is
not a juristic person for all purposes. The affairs of the Hindu undivided family are looked after and
managed by its karta. When two kartas of two Hindu undivided families enter into a partnership
agreement the partnership is popularly described as one between the two Hindu undivided families
but in the eye of the law it is a partnership between the two kartas and the other members of the
families do not ipso facto become partners. There is, however, nothing to prevent the individual
members of one Hindu undivided family from entering into a partnership with the individual
members of another Hindu undivided family and in such a case it is a partnership between the
individual members and it is wholly inappropriate to describe such a partnership as one between
two Hindu undivided families. We need not pursue this matter further, for in the case now before
us there is no evidence whatever to prove that all the members of the two families had individual
become partners in the business at any time before the 14th April, 1943. The documents to which
reference will presently be made do not support the case now sought to be made by learned counsel
for the assessee.
8. Section 26-A permits an application to be made to the Income-tax Officer on behalf of any firm
constituted under an instrument of partnership specifying the individual shares of the partners of
registration for the purposes of the Indian Income-tax Act. Sub-section (2) of that section provides
that the application shall be made by such person or persons and shall be in such form and be
verified in such manner as may be prescribed. Rule 2 of the Indian Income-tax Rules requires that
such application shall be signed by all the partners personally. Rule 3 enjoins that the application
shall be made in the form annexed to that rule. It appears that on the 19th October, 1943, an
application was made on behalf of Kshetra Mohan Sadhukhan and sons and Bijan Kumar
Sadhukhan and brothers for the renewal of the registration of the firm under section 26-A of the
Indian Income-tax Act for the assessment for the Income-tax year 1942-43. It was alleged in that
application that the constitution of the firm and the individual shares of the partners as specified in
the instrument of partnership remained unaltered. In the schedule to the application were set out the
required particulars. The column showed that in the balance of profits or loss the share of Kshetra
Mohan Sadhukhan and sons was Rs. 4,370 and that of Bijan Kumar Sadhukhan and brothers was
also Rs. 4,370. The instrument of partnership dated the 19th September, 1943, referred to in the
application appears to be one made between Gosta Behari Sadhukhan and Bros. called the first
party and Bijan Kumar Sadhukhan and Bros. called the second party. Clause 6 of that deed provided
that the profits of the partnership should belong to "the partners equally, i.e., eight annas share
each". Clause 7 of the deed referred to "either partner" and clause 8 to "either of the partners". These
expressions clearly indicate that the partners were two only, and an equal share of eight annas also
indicates the same. It further appears that on the 28th December, 1944, another deed of partnership
was drawn up. In this deed there are eight parties. Learned counsel for the appellant relies on the
first four recitals as clearly indicating that even before the 13th April, 1943, the eight individual
members of the two families carried on business in partnership. This construction of those clauses
is clearly inconsistent with the fifth recital which says that on and from the 1st Baisak, 1350 B. S.
i.e. 14th April, 1943, the said firm was reconstituted as constituted of eight partners. If the firm was
before 1st Baisak, 1350, B. S., constituted of eight partners then there could be no occasion for
reciting that "the firm was reconstituted as constituted of eight partners". Further, the statement of
case drawn up by the Appellate Tribunal, which is binding on the assessee, clearly indicates that up
to 13th April, 1943, the business was a partnership concern carried on by two Dayabhaga Hindu
undivided families and that it was after that date that the eight members of the two families
constituted themselves into a partnership. The returns in the firm's files up to 1943-44 also show
only two partners - Kshetra Mohan Sadhukhan and sons and Sannyasi Charan Sadhukhan and sons
- each having an eight annas share. It is from 1944-45 that eight partners are being shown. As
already stated, the application dated the 19 October, 1943, also indicates that the parties themselves
considered that the business was carried on by two partners. Further, the very question referred by
the Appellate Tribunal implies, as pointed out by the High Court, that a business was carried on by
a partnership composed of two partners each of which was a Hindu undivided family, that there
was a disruption of both the families and that on and after such disruption the business was carried
on by a partnership entered into by and between the separated male members of the two families.
We also agree with the High Court that if the case of the assessee was that even before 14th April,
1943, there was a partnership of eight persons and if that case was accepted by the Appellate
Tribunal then no question of law could have arisen on those facts. It is only because the fact found
was that prior to 13th April, 1943, the business was carried on on by a partnership of two Hindu
undivided families which prima facie means a partnership between two Kartas representing two
Hindu undivided families and that from 14th April, 1943, it became a business of eight individual
members of two disrupted families that the question of law could arise. If, as we hold, the assessee
is not entitled to go behind the facts so found by the Appellate Tribunal in the statement of the case
and as is implicit in the question itself, then there can be no doubt that there had been a change in
the persons carrying on the business within the meaning of section 8 of the Excess Profits Tax Act
and it has not been argued otherwise. In our opinion, therefore, the answer given by the High Court
to the referred question was correct.
9. In this view of the matter it is not necessary to consider whether the fact of Nandodulal, the
youngest son of Sannyasi Charan, being a minor before 13th April, 1943, and of his attaining
majority on 18th July, 1943, as stated by the learned counsel for the assessee will bring the case
within the meaning of section 8 of the Excess Profits Tax Act.
10. For the reasons stated above this appeal is dismissed with costs.
12. Agent for the appellant : H. N. Sen.
13. Agent for the respondent : G. H. Rajadhyaksha.

Suraj Bunsi Koer (Mother and guardian of the infant sons)
v. Proshad Singh and Ors., (1879)L.R. 6 I.A. 88
Hon'bleJudges/Coram: James W. Colvile, Barnes Peacock, Montague E. Smith and Robert

P. Collier, JJ.
CaseNote:
Property - Their Lordships are of opinion that it is not necessary in this case to determine
that vexed question, which their former decisions have hitherto left open. They think that,
at the time of Adit Sahai's death, the execution proceedings under which the mouzah had
been attached and ordered to be sold had gone so far as to constitute in favour of the
judgment creditor, a valid charge upon the land, to the extent of Adit Sahai's undivided
share and interest therein, which could not be defeated by his death before the actual sale.
They are aware that this opinion is opposed to that of the High Court of the North-Western
Provinces 4 N. W. Prov. Rep. 137, already referred to. But it is to be observed that the Court
by which that decision was passed does not seem to have recognised the seizable character
of an undivided share in joint property which has since been established by the before-
mentioned decision of this tribunal in the case of Deendyal Lal. If this be so, the effect of
the execution sale was to transfer to the Respondents the undivided share in eight annas of
mouzah Bissumbhurpore, which had formerly belonged to Adit Sahai in his lifetime; and
their Lordships are of opinion that, notwithstanding his death, the Respondents are entitled
to work out the rights which they have thus acquired by means of a partition. They will
therefore humbly advise Her Majesty to allow this appeal, and to reverse the decree of the
High Court, and also that of the Subordinate Judge, which is clearly wrong in so far as it
absolutely set aside the bond, the decree, and the execution sale, and in lieu thereof to make
an order declaring that by virtue of the execution sale to them the Respondents acquired
only the one undivided third share in the eight-anna share of mouzah Bissumbhurpore, in
the pleadings mentioned, which formerly belonged to Adit Sahai, with such power of
ascertaining the extent of such third part or share by means of a partition as Adit Sahai
possessed in his lifetime; and ordering that the Appellants be confirmed in the possession
of the said eight-anna share of mouzah Bissumbhurpore, subject to such proceedings as the
Respondents may take in order to enforce their rights above declared. The order should
further direct that the costs in the Courts below be apportioned according to the usual
practice of those Courts, when the party Plaintiff is only partially successful. But the
Appellants, having succeeded here on a material portion of their claim, are entitled to the
costs of this appeal.
JUDGMENT
James W. Colvile, J.
1. The question to be determined on this appeal is, what are the respective rights of the infant
Plaintiffs and Appellants on the one hand, and of the Respondents claiming as purchasers at an
execution sale on the other, in an eight anna share of mouzah Bissum-hhurpore, a village situate
in the district of Tirhoot. The material facts out of which this question arises are the following:
2. Baboo Adit Sahai, the father of the Plaintiff, became on the death of his father Nursing Sahai
in 1862, or by virtue of a subsequent partition effected with a coparcener, the sole owner of
certain ancestral immovable property in Tirhoot, including eight annas of mouzah
Bissumbhurpore. It has been assumed throughout the proceedings that the case was governed by
the law of the Mitakshara; that, or the Mithila law, which is the same in respect of the questions
raised in the suit, being the general law of the district. He had afterwards two sons, who are the
infant Plaintiffs. Of these, Ram Sahai was born in 1862, and Bhuggobutti in October, 1869. These
dates were disputed, but have, in their Lordships' opinion, been conclusively established in the
suit. On the 21st of January, 1870, Adit Sahai executed, in favour of one Bolaki Chowdry, a
Defendant in the suit, though not a Respondent on this appeal, an instrument in the form of a
bond and Bengali mortgage, whereby he bound himself to repay the sum of Rs. 13,000, which
he had borrowed from Bolaki, with interest at the rate of 15 per cent. per annum, and pledged as
security for such repayment the whole and entire proprietary shares owned and possessed by him
in mouzah Surakdeeha (also part of the ancestral estate) and mouzah Bissumbhurpore. This bond
does not expressly state any reason for incurring the debt, but it refers to a negotiation for a loan
of a smaller sum from another party, which had fallen through, and says that that sum was not
then sufficient to meet the payments of the obligor's several creditors. It was registered on the
21st of January, 1870.
3. On the 30th of December, 1872, Bolaki Chowdry, suing on this instrument, obtained an ex
parte decree against Adit Sahai alone for the sum of Rs. 16,901. 13a. 3p., the amount due for
principal, interest and costs. The terms of this decree were in the usual terms of a decree in such
a suit, viz., that the sum decreed should be realized by the sale of the mortgaged property, and
that if the said property should not be found sufficient to meet the payment of it, the person and
other properties of the judgment debtor should be held liable for it.
4. On the 21st of March, 1873, Adit Sahai presented a petition to the Court. This, after stating
that execution having been issued in the usual way, the mortgaged property had been ordered to
be put up for sale; that on production of Rs. 3,000 out of the decretal amount the Court had
granted time for one month, and postponed the sale to the 7th of April; that the Petitioner was
very ill, and would be ruined by a forced sale, prayed the Court to grant a further postponement
of the sale, and, under the provisions of the 243rd section of the Act VIII. of 1869, to appoint a
surbarakur of the mouzahs in question, and certain other portions of the ancestral estate, From
the order made on this petition it appears that the attachment of Bissumbhurpore had for some
reason been already quashed, and that a new attachment was about to be made; and it was
accordingly directed that in the meantime the petition should stand over. That second attachment
must have been made, for subsequent proceedings in execution were had, in the course of which
Binda Koer, the mother of Adit Sahai, claimed to be entitled in her own right to one anna of
mouzah Bissumbhurpore, and to some part of the other property taken in execution. Her latter
claim was allowed, but that affecting Bissumbhurpore was rejected; and the execution sale stood
fixed for the 23rd of May, 1873, when, on the 19th of that month Adit Sahai died. The
proceedings against Adit Sahai were thereupon revived in the usual way against his two sons as
his heirs, and the 28th of July, 1873, was fixed as the day of the sale of the property liable to the
execution. On the 14th of that month, however, Mussumat Sooraj Bunsi Koer, as the mother and
guardian of the infant Appellants, filed a petition of objections for the protection of their interests
as the sons of, and, therefore, under the Mitakshara law, the co-sharers with, their father in his
lifetime in the property; and the order passed on that petition was in effect that the objections
could not be heard and decided in the execution department, but that if the Petitioners had any
interest in the property attached apart from and other than what their late father possessed, they
could obtain their remedy by bringing a regular suit. The execution accordingly proceeded, the
sale took place on the 28th of July, and the lot described as " the eight anna share of the judgment
debtor in mouzah Bissumbhurpore, part of the mortgaged property as per inventory of the decree-
holder " was purchased by the Respondents for Rs. 6600. The sale proceeding was ordered to be
duly kept with the record, Whether the usual certificate was afterwards issued to the purchasers,
or in what terms, if issued, it was expressed, does not clearly appear on the record; but it is certain
that they had not been put into possession on the 27th of August, 1873, when the present suit was
commenced.
5. That is a suit by the infant Appellants, suing, by their mother and guardian, against the
Respondents as the purchasers of the eight annas of Bissumbhurpore at the execution sale, and
also against Bolaki Chowdry, the execution creditor. The plaint prayed for the adjudication of
the right of the Plaintiffs to, and the confirmation of their possession in the eight annas of Bissum-
hhurpore; to have the mortgage bond of the 21st of January, 1870, the ex parte judgment obtained
by the Defendant Bolaki thereon, the miscellaneous orders rejecting the Plaintiffs' objections,
and the auction sale of the 28th of July, 1873, set aside; and for an injunction to restrain the
delivery of possession of the disputed property to the Respondents. The claim to this relief was
founded on the rights which, under the law of the Mitakshara, a son acquires on his birth in
ancestral property, and the consequent limitation on the father's power to alienate, encumber, or
waste that property; and the plaint contained the charges, usual in such cases, of immoral and
extravagant conduct on the part of Adit Sahai.
6. The subordinate Judge, by his judgment of the 27th of April, 1874, found for the Plaintiffs on
all the issues in the suit, and gave them a decree for the confirmation of their possession, and the
cancellation of the bond of the 21st of January, the decree founded thereon, and the execution
sale.
7. He found in particular that there was no justifying necessity for the loan of the Rs. 13,000, or
for the former loans in repayment of which part of that money was employed; that the balance of
the money was not shewn to have been applied to family purposes; that Bolaki had failed in his
duty to make bona fide inquiry into the necessity, but had lent without such inquiry the money to
a man whom he well knew to be over head and ears in debt, and living a life of debauchery and
sensuality; that consequently the ex parte decree was void of all legal force against the family
estate of which the debtor was but a joint owner; and that for the same reason the execution sale
effected thereunder could not stand so far as the family property was concerned. He also held
that the rights of the purchasers stood on no better ground than those of the execution creditor;
that they were " not innocent purchasers in the proper sense of the term, since notice was given
before the sale by the Plaintiffs that the family property advertised for sale could not legally be
sold for the debt of one of the joint members of the family."
8. On appeal to a Division Bench of the High Court the learned Judges, in their judgment of the
21st of July, 1875, said:
The Subordinate Judge has decided (in the words of the well-known case of Hunooman Pershad 6
Moore, Ind. Ap. Ca. 421) that although the creditor would have been justified in advancing his
money if he had made such inquiry as was open to him, and satisfied himself, as well as he could,
as to the existence of the necessity, he did not in this case make such inquiry; or rather, perhaps, his
words may be taken to mean that the result of any inquiry must have shewn him quite clearly that
the only necessity of Adit Sahai was his own improper and immoral way of life, which required the
expenditure of funds not derivable from his regular income. And this decision would, we think,
have been perfectly fair and right, were we dealing with Bolaki Chowdry only; for he appears to
have acted as the family mahajun for a long time previous, and must necessarily have been
acquainted with Adit's circumstances and way of life.
9. The learned Judges, however, proceeded to rule that the purchasers (the Respondents) stood
on higher ground; that under the authority of the case of Muddun Thakoor v. Kantoo Lall Law
Rep. 1 Ind. Ap. 321 they were to be treated as strangers who had purchased at public auction for
valuable consideration, and had bought on the faith that the decree under which the sale was
made was a proper decree, and properly obtained. In a subsequent part of their judgment they
threw out that the onus of shewing against the purchasers that the decree was an improper one
lay upon the Plaintiffs; and that the evidence in the cause as to the habits and immoral conduct
of Adit Sahai, though strong enough to support a decree against Bolaki Chowdry, might not be
strong enough to support one against the purchasers. The formal decree passed was that the decree
of the Lower Court should be reversed, and the suit as against the purchasers, Defendants,
dismissed.
10. The result, then, of the judgment and decree under appeal is that the Plaintiffs had established,
as against the execution creditor, a case which, had he been the purchaser at the execution sale,
would have entitled them to full relief against him; but that they had not established a title to any
relief against the purchasers, the Respondents.
11. The extreme contention on the part of the Appellants is, that nothing passed or could pass to
the Respondents under the execution sale, because, on the death of the judgment debtor before
the sale, the whole of his interest vested by survivorship in his sons, leaving nothing upon which
the execution could operate.
12. The extreme contention on the part of the Respondents is, that the sale took effect on the
whole of the mortgaged property, and passed the interest of the sons, as well as that of the father
therein.
13. An intermediate proposition is, that the sale was operative upon the right, title, and interest
of the judgment debtor in the property put up for sale, so as to pass the share to which, upon a
partition effected in his lifetime, he would have been entitled in eight annas of mouzah
Bissumbhurpore.
14. The arguments addressed to their Lordships make it desirable to consider, somewhat in detail,
what are the principles of the Hindu law which are the foundation of the Plaintiff's claim, and
what the rights which flow from them. These questions are of course determinable by the texts
of the Mitakshara, as interpreted by judicial decisions either of the Courts of India or of this
Board; and it cannot be said that the course of decision has been altogether uniform and
consistent.
15. That under the law of the Mitakshara each son upon his birth takes a share equal to that of his
father in ancestral Immovable estate is indisputable. Upon the questions whether he has the same
right in the self-acquired Immovable estate of his father, and what are the extent and nature of
the father's power over ancestral moveable property, there has been greater diversity of opinion.
But these questions do not arise upon this appeal. The material texts of the Mitakshara are to be
found in the 27th and following slokas of the first section of the first chapter. It was argued at the
bar that, because in the third sloka of the above section it is said that the wealth of the father
becomes the property of his sons, in right of their being his sons, and that "that is an inheritance
not liable to obstruction," their rights in the family estate must be taken to be only inchoate and
imperfect during their father's life, and in particular that they cannot, without his consent, have a
partition even of Immovable ancestral property. There was some authority in favour of this
proposition, notwithstanding the texts to the contrary which are to be found in the Mitakshara
itself (see slokas 5, 7, 8, 11 of the 5th section of the 1st chapter). But it seems to be now settled
law in the Courts of the three presidencies that a son can compel his father to make a partition of
ancestral Immovable property. On this point it is sufficient to cite the cases of Laljeet Singh v.
Rajcoomar Singh 12 Beng. L.R. 373 and Raja Ram Tewarry v. Luchman Persad Bengal Full
Bench Rulings from 1863 to 1867, p. 731, decided by the High Court of Calcutta; that of
Kaliparshad v. Ramcharan Ind. L.R. 1 Allahabad, 150, decided by the High Court of the North-
West Provinces; that of Na'galina Mudali v. Subbiramaniya Mudali and Ors. 1 Madras, H.C.R.
77, decided by the High Court of Madras; and the case of Moro Vishvanath and Ors. v. Garnesh
Vithal and Ors. 10 Bomb. H.C.R. 444, decided by the High Court of Bombay. The decisions do
not seem to go beyond ancestral Immovable property.
16. Hence, the rights of the coparceners in an undivided Hindu family governed by the law of the
Mitakshara, which consists of a father and his sons, do not differ from those of the coparceners
in a like family, which consists of undivided brethren, except so far as they are affected by the
peculiar obligation of paying their father's debts which the Hindu law imposes upon sons (a
question to be hereafter considered), and the fact that the father is in all cases naturally, and, in
the case of infant sons, necessarily, the manager of the joint family estate.
17. The right of coparcencers to impeach an alienation made by one member of the family without
their authority, express or implied, has of late years been frequently before the Courts of India,
and it cannot be said that there has been complete uniformity of decision respecting it.
18. All are agreed that the alienation of any portion of the joint estate, without such express or
implied authority, may be impeached by the coparceners, and that such an authority will be
implied, at least in the case; of minors, if it can be shown that the alienation was made by the
managing member of the family for legitimate family purposes. It is not so clearly settled
whether, in order to bind adult coparceners, their express consent is not required; but this is a
question which does not arise in the present case.
19. To what extent an unauthorized alienation can be impeached by coparceners is a more

important question, and one upon which there has been a greater conflict of authorities. Nor can
it be said that the same law even yet prevails in all parts of India upon it.
20. A distinction has been often made, both by Courts of Justice and by text writers, between
alienations by private contract and conveyance, and alienations under legal process, as in the case
of joint family property seized and sold in execution of a decree against one member of the family
for his separate debt.
21. Since the decision, however, of the cases of Virasvami Gramini v. Ayyasvami Gramini 1
Madras, H.C.R. 471, of Peddamuthuluty and Ors. v. N. Timma Reddy 2 Madras, H.C.R. 270,
Palanivelappa-Kaundan v. Manndru Naikan and Anr. 2 Madras, H.C.R. 416, and J. Rayacharlu
v. J.V. Venkataramaniah 4 Madras, H.C.R. 60, it has been settled law in the presidency of Madras
that one coparcener may dispose of ancestral undivided estate, even by contract and conveyance,
to the extent of his own share; and a fortiori that such share may be seized and sold in execution
for his separate debt.
22. That the same law now obtains in the presidency of Bombay is shewn by the cases of
Damodhar Vithal Khare v. Dhamodar Hari Soman 1 Bomb. H.C.R. 182, Pandurang Anandrav v.
Bhaskar Shadashiv 11 Bomb. H.C.R. 72, and Udaram Sitaram v. Ranu Panduji and Anr. 11
Bomb. H.C.R. 76. But it appears from the case of Vrandavandas Rumdas v. Yamunabai 12 Bomb.
H.C.R. 229, and the cases there cited, that, in order to support the alienation by one coparcener
of his share in undivided property, the alienation must be for value. The Madras Courts, on the
other hand, seem to have gone so far as to recognise an alienation by gift. There can be little
doubt that all such alienations, whether voluntary or compulsory, are inconsistent with the strict
theory of a joint and undivided Hindu family; and the law as established in Madras and Bombay
has been one of gradual growth, founded upon the equity which a purchaser for value has to be
allowed to stand in his vendor's shoes, and to work out bis rights by means of a partition: see 1
Strange, Hindu Law [1st Ed.] p. 179, and App. vol. ii. pp. 277 and 282.
23. In Bengal, however, the law which prevails in the other presidencies as regards alienation by
private deed has not yet been adopted. In a lending case on the subject, that of Sadabart Prasad
Sahu v. Foolbash Koer 3 Beng. L.R. Full Bench Rulings, p. 31, the law was carefully reviewed,
and the Court, refusing to follow the Madras and Bombay decisions, held that, according to the
Mitakshara law as received in the presidency of Fort William, one coparcener had not authority
without the consent of his co-sharers to mortgage his undivided share in a portion of the joint
family estate, in order to raise money on his own account, and not for the benefit of the family.
In another part of the same case the Chief Justice intimated a doubt upon a question which did
not then call for decision, viz. whether, under a decree against one coparcener in his lifetime, his
share of joint property might be seized and sold in execution. That question must now be taken
to have been set at rest by the recent decision of this tribunal in Deendyal Lal v. Jugdeep Narain
Singh Law Rep. 4 Ind. Ap. 247, by which the law has so far been assimilated to that prevailing
in Madras and Bombay, that it has been ruled that the purchaser of undivided property at an
execution sale during the life of the debtor for his separate debt does acquire his share in such
property with the power of ascertaining and realizing it by a partition.
24. But then the question arises, what is the consequence of the debtor dying before the execution
is complete; whether in that event the coparceners take his undivided share by survivorship, so
as to defeat the remedy which the creditor would otherwise have against it.
25. This was much considered in the case of Udaram Sitaram v. Ranee Panduji and Anr. already
cited from the 11 Bombay H. C. Report, p. 76. There the debt was the separate debt of a son joint
in estate with his father. The suit was brought, after the death of the son, against the father. A
decree was obtained against the father and the son's widow, and it was sought, in a supplemental
suit, to enforce that decree against the son's undivided share in joint property, treating that share
as liable, in the father's hands, for the son's debt. It was ruled that this could not be done; that,
though a son might be liable to pay his father's separate debts, there was no corresponding
obligation on a father to pay his son's debts; that the right of a son to a share in the joint ancestral
property had died with him; and that his share, having survived to the father, was no longer a
subject upon which the execution could operate. This case is the more important, because the
Court, whilst coming to the above conclusion, fully recognised the alienability of the share of
one coparcener, as established at Bombay; and shewed, with some detail, how the remedy against
such a share is to be worked out by the holder of a decree in the debtor's lifetime.
26. Mr. Mayne, in his valuable Treatise on Hindu Law and Usage, Section 288, states that there
had recently been a decision to the same effect as that just stated at Madras. Indeed, this was
stronger than that at Bombay, because the debtor had died after decree, though before execution.
The case is cited as that of Kooppookonan v. Chinnayen 1 Madras Reporter, 63, but their
Lordships have been unable to obtain access to a copy of those reports, and can refer only to the
abstract of the case in Mr. Mayne's work. The Chief Justice in that case seems to have taken a
distinction between a specific charge on the land and a mere personal decree. The existence of
such a distinction would be the logical consequence of the power of a coparcener, as recognised
at Madras and Bombay, to sell or mortgage joint property to the extent of his undivided share.
27. In his judgment in the Bombay Case 11 Bomb. H. C. R. p. 85 Chief Justice Westropp cites a
decision of the High Court of the North-Western Provinces, Goor Pershad v. Sheodeen 4 N.W.
Prov. Rep. 137, which is still stronger than the last-mentioned case at Madras, because there the
property had been actually attached in the debtor's lifetime.
28. It may be further observed that the Chief Justice in the case already cited from 3 Bengal
Reports See p. 36 at seq, seems to have intimated an opinion in favour of the general rule that an
undivided share in joint property cannot be followed in the hands of coparceners to whom it
passed by right of survivorship. It was not, however, necessary to decide the point in that case.
29. Their Lordships have hitherto dealt with the powers and rights of ordinary coparceners. They
have now to consider how far those rights and powers are qualified by the obligation which the
Hindu law lays upon a son of paying his father's debts. The obligation is thus succinctly stated
by Chief Justice Westropp 11 Bomb. H. C. R. p. 83:
Subject to certain limited exceptions (as, for instance, debts contracted for immoral or illegal
purposes) the whole of the family undivided estate would be, when in the hands of the sons or
grandsons, liable to the debts of the father and grandfather.
30. And as authorities for this proposition he cites Colebrooke's Digest, Book I., chap. v., par.
167, and Girdhari Lall v. Kantoo Lall Law Rep. 1 Ind. Ap. 321. One of the earlier authorities
cited at the bar upon this point was a case decided by the late Suddur Court of Lower Bengal in
1861, which is reported at p. 213 of the Decisions of the Suddur Dewanny Adawlut of Bengal
for that year. In it an infant son sued by his guardian, in the lifetime of his father, to set aside
various conveyances which had been made by the father of portions of the joint family estate,
and to recover the property sold under them, and also to recover other portions of the estate which
had been sold under orders of the Court in execution of decrees. The family was governed by the
Mithila law, and the first point decided was that the restrictions on a father's power of alienation
over ancestral Immovable estate under that law were the same as those imposed by the law of the
Mitakshara.
31. This case recognised the distinction between alienations by conveyance and those made under
process of execution. The Court set aside the sales by conveyance because no justifying necessity
for them had been established, and it did this although the considerations for the sales were in
some instances money raised in order to satisfy either judgment or bond debts. On the other hand,
it dismissed the suit so far as it sought to recover property which had been sold under decrees of
Court, on the ground that the son was under an obligation to pay the debts of the father if not
contracted for immoral purposes, and that he had failed in this case to prove, as against the
purchasers under the decrees, that they were so contracted. The words of the judgment on this
point are, "Freedom on the part of the son, as far as regards ancestral property, from the obligation
to discharge the father's debts, under Hindu law, can be successfully pleaded only by a
consideration of the invalid nature of the debts incurred. Now we are clearly of opinion that the
Plaintiff has been unable to shew that the expenses for which these decrees were passed were,
looking to the decrees themselves, and we cannot now look beyond them, immoral, and such as,
under Hindu law, the son would not be liable for."
32. The decision of this tribunal in the before-mentioned case of Kantoo Lall has, however, gone
beyond this decision of the Sudder Dewanny Adawlut, because it treats the obligation of a son to
pay his father's debts, unless contracted for an immoral purpose, as affording of itself a sufficient
answer to a suit brought by a son either to impeach sales by private contract for the purpose of
raising money in order to satisfy pre-existing debts, or to recover property sold in execution of
decrees of Court. The judgment, moreover, and this is the portion of it that is chiefly material to
the determination of the present appeal, affirms the principle laid down in the judgment of the
Suddur Dewanny Adawlut, that a purchaser under an execution is not bound to go further back
than to see that there was a decree against the father; and that the property was property liable to
satisfy the decree, if the decree had been given properly against the father. In such a case, one
who has bond fide purchased the estate under the execution, and bond fide paid a valuable
consideration for it, is protected against the suit of the sons seeking to set aside all that has been
done under the decree and execution, and to recover back the estate as joint ancestral property.
33. This case then, which is a decision of this tribunal, is undoubtedly an authority for these
propositions:
1st. That where joint ancestral property has passed out of a joint family, either under a conveyance
executed by a father in consideration of an antecedent debt, or in order to raise money to pay off an
antecedent debt, or under a sale in execution of a decree for the father's debt, his sons, by reason of
their duty to pay their father's debts, cannot recover that property, unless they shew that the debts
were contracted for immoral purposes, and that the purchasers had notice that they were so
contracted; and 2ndly, that the purchasers at an execution sale, being strangers to the suit, if they
have not notice that the debts were so contracted, are not bound to make inquiry beyond what
appears on the face of the proceedings.
34. Their Lordships have now to apply the principles to be extracted from the authorities which
have been considered in the case before them.
35. It has been found by both the Indian Courts, and, in their Lordships' opinion, properly found,
that the Plaintiffs, as between them and Bolaki Chowdhry, the judgment creditor of Adit Sahai,
had established that neither they, nor the ancestral Immovable estate in their hands, were liable
for the debt to Bolaki which had been contracted by their father. The two material issues on this
point were, 1st, Whether the bond to Bolaki executed by the late father of the minors, was legally
valid so far as the minors' interest is concerned, and whether the money thus borrowed was
devoted to the satisfaction of debts incurred when the minors had no existence; and, 2ndly, What
sort of a life did Adit Sahai live; did he spend the money borrowed from Bolaki Chowdhry in
immoral purposes? The Subordinate Judge, upon a full consideration of the evidence, found both
these issues in favour of the Plaintiffs, and decreed to them the relief sought by their plaint. The
judgment of the High Court does not impeach this finding as regards Bolaki Chowdhry. On the
contrary, the words of the learned Judge who wrote the judgment of the Court are, "And this
decision would, I think, have been perfectly fair and right were we dealing with Bolaki Chowdhry
only." There is no doubt a subsequent passage to the effect that the onus was clearly on the
Plaintiffs of shewing against the Respondents, who purchased at the execution, that the decree
against Adit Sahai was an improper one, and that the evidence was insufficient to prove the fact.
36. If in this last passage of the judgment the Court meant to rule that the evidence which was
sufficient to prove the two issues above mentioned, and the matters of fact involved in them
against Bolaki Chowdhry, was insufficient to prove them against the Respondents, that ruling
would, in their Lordships' opinion, be erroneous. The Respondents were parties to the suit, they
went to trial upon those issues, and had equally with Bolaki Chowdhry the means of cross-
examining the Plaintiffs' witnesses, and of adducing counter evidence. This observation,
however, leaves untouched the principal ground upon which the High Court dismissed the
Plaintiffs' suit as against the Respondents, viz., that upon the authority of the decision of this
Board in Muddun Thakoor v. Kantoo Lall, the Respondents are to be treated on the looting of
purchasers for value, without notice; for it is one thing to prove a fact, and another to prove that
a particular party had notice of that fact. Their Lordships desire to say nothing that can be taken
to affect the authority of Muddun Thakoor's Case, or of the cases which may have since been
decided in India in conformity with it. The material passage of the judgment in Muddun Thakoor'
s Case is in these words:
A purchaser under an execution is surely not bound to go back beyond the decree to ascertain
whether the Court was right in giving the decree, or, having given it, in putting up the property for
sale under an execution upon it. It has already been shewn that if the decree was a proper one, the
interest of the .sons as well as the interest of the fathers in the property, although it was ancestral,
was liable for the payment of the father's debts:. The purchaser under the execution, it appears to
their Lordships, was not bound to go further back than to see that there was a decree against the
fathers; that the property was property liable to satisfy the decree, if the decree had been given
properly against them; and he having inquired into that, and bona fide purchased the estate under
the execution, and bona fide paid a valuable consideration for it, the Plaintiffs are not entitled to
come in, and to sot aside all that has been done under the decree and execution, and recover back
the estate from the Defendant.
37. It appears to their Lordships that the present case is clearly distinguishable from that of
Muddun Thakoor, and does not fall within the principle laid down in the passage just cited. It has
been seen that before the Respondents purchased, the claim of the Plaintiffs was preferred in the
Court wherein the execution proceedings were pending in the form of objections to the sale. The
Court refused to adjudicate upon the claim in an execution proceeding, and accordingly allowed
the sale to take place, but made an order referring the Plaintiffs to a regular suit for the
establishment of their rights. Their Lordships think that the Respondents must be taken to have
had notice, actual or constructive, of the Plaintiff's objections, and of the order made upon them,
and therefore to have purchased with knowledge of the Plaintiff's claim, and subject to the result
of this suit. It follows that, as against them as well as against Bolaki Chowdhry, the Plaintiffs
have established that by reason of the nature of the debt neither they nor their interests in the joint
ancestral estate are liable to satisfy their father's debt.
38. The question remains, Whether they are entitled to any and what relief as regards the father's
share in this suit? It seems to be clear upon the authorities that if the debt had been a mere bond
debt, not binding on the sons by virtue of their liability to pay their father's debts, and no sufficient
proceedings had been taken to enforce it in the father's lifetime, his interest in the property would
have survived on his death to his sons, so that it could not afterwards be reached by the creditor
in their hands. On the other hand, if the law of the Presidency of Fort William were identical with
that of Madras, the mortgage executed by Adit Sahai in his lifetime, as a security for the debt,
might operate after his death as a valid charge upon mouzah Bissumbhurpore to the extent of his
own then share. The difficulty is that, so far as the decisions have yet gone, the law, as understood
in Bengal, does not recognise the validity of such an alienation.
39. Their Lordships are of opinion that it is not necessary in this case to determine that vexed
question, which their former decisions have hitherto left open. They think that, at the time of Adit
Sahai's death, the execution proceedings under which the mouzah had been attached and ordered
to be sold had gone so far as to constitute in favour of the judgment creditor, a valid charge upon
the land, to the extent of Adit Sahai's undivided share and interest therein, which could not be
defeated by his death before the actual sale. They are aware that this opinion is opposed to that
of the High Court of the North-Western Provinces 4 N. W. Prov. Rep. 137, already referred to.
But it is to be observed that the Court by which that decision was passed does not seem to have
recognised the seizable character of an undivided share in joint property which has since been
established by the before-mentioned decision of this tribunal in the case of Deendyal Lal. If this
be so, the effect of the execution sale was to transfer to the Respondents the undivided share in
eight annas of mouzah Bissumbhurpore, which had formerly belonged to Adit Sahai in his
lifetime; and their Lordships are of opinion that, notwithstanding his death, the Respondents are
entitled to work out the rights which they have thus acquired by means of a partition.
40. They will therefore humbly advise Her Majesty to allow this appeal, and to reverse the decree
of the High Court, and also that of the Subordinate Judge, which is clearly wrong in so far as it
absolutely set aside the bond, the decree, and the execution sale, and in lieu thereof to make an
order declaring that by virtue of the execution sale to them the Respondents acquired only the
one undivided third share in the eight-anna share of mouzah Bissumbhurpore, in the pleadings
mentioned, which formerly belonged to Adit Sahai, with such power of ascertaining the extent
of such third part or share by means of a partition as Adit Sahai possessed in his lifetime; and
ordering that the Appellants be confirmed in the possession of the said eight-anna share of
mouzah Bissumbhurpore, subject to such proceedings as the Respondents may take in order to
enforce their rights above declared. The order should further direct that the costs in the Courts
below be apportioned according to the usual practice of those Courts, when the party Plaintiff is
only partially successful. But the Appellants, having succeeded here on a material portion of their
claim, are entitled to the costs of this appeal.
Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree, 6 MIA 393.
JUDGMENT
Lord Justice Knight Bruce
1. The complainant in the original suit, was Lal Inderdowun Singh, described in the plaint as
proprietor of the Raj of Pergunnah Munsoor Nuggur Bustee. The suit was against the present
Appellant, the chief Defendant, and Ranee Degumber Koonweree, the second Defendant, the
mother of the complainant. The complainant sought by his plaint the possession of certain
immoveable property described in his claim, the particulars of which it is unnecessary to state. He
sought also to set aside a mortgage Bond bearing date Assar Soodee Poorunmashee, 1246 Fuslee,
set up by the Appellant; to oust the Appellant, to cancel the name of the Appellant as mortgagee in
the Collector's records, and to recover mesne profits. To this suit the Defendant put in his answer.
The title of the complainant to the lands as heir was not denied by the answer; but the Defendant
alleged his title as mortgagee (except as to some Birt lands, the claim to which was abandoned in
the suit, and to which it is unnecessary further to refer). The substantial dispute between the parties
was, as to the lands for which the suit proceeded, whether the Defendant could resist, Under his
title as mortgagee to the extent of that interest, the title of the complainant as heir and proprietor of
the lands.
2. It is unnecessary to enter in detail into the pleadings or proceedings in the suit. It is sufficient to
state, that, in the result the Sudder Ameen decided in favour of the security, and dismissed the claim
generally, but that on appeal from that decision, the Sudder Court decided against the security, and
in substance granted the relief asked by the plaint, except in so far as it was abandoned.
3. The reasons for the decision of the appellate Court are contained in their judgment. The Court
says, " The question with which the Court have first to deal, respects the right of the Ranee to
execute the instrument before them." They then remark, "that the Bond itself assigns to the Ranee
a proprietary character, and that it was not amongst the Defendant's pleas that; the Ranee acted as
her son's guardian, but that he has claimed for her the proprietary character, both in his answer to
the plaint, and still more broadly and unreservedly in his answer to the pleadings in appeal. The
Plaintiff, on the other hand, has throughout argued for the avoidance of the Bond, by denying the
Ranee's proprietary title in any way; and such being the issue joined between the parties, the Court,
looking to the fact that the estates in dispute unquestionably devolved on the Plaintiff, to the
exclusion of the Ranee, on the death of the Plaintiff's father, Raja Sheobuksh Singh, have no
hesitation in declaring that, even on the assumption that the Ranee voluntarily executed the Bond,
and received full consideration for it, the Bond is not binding on the Plaintiff, and that neither he
nor his ancestral property can be made liable in satisfaction of it. It is needless for the Court, their
inquiries being thus stopped in limine, to enter on the real merits of the transaction as between the
Ranee and Hunoomanpersaud Panday."
4. Their Lordships collect from this judgment that the Court thought that a bar was interposed by
the pleadings, and by the Ranee's act of assumption of proprietorship, to the further consideration
whether the Appellant's charge could in any character be sustained against the estate.
5. The Court did not enter upon the question of the validity of the charge, in whole or in part, as a
charge effected by a de facto Manager, or proprietor, whether by right or by wrongful title, nor
advert to the fact that the charge included some items of former charge wholly unaffected by the
objection which they considered of so much weight.
6. This judgment may be considered under the following points of view :
First. Did the appellate jurisdiction rightly construe the pleadings, and take a right view of the issues
framed under the direction of the Judge, according to the practice of those Courts?
Secondly. Did it take a right view of the relation in which the Ranee intended to stand to her son's
estate? And,
Thirdly. Did it consider the point, whether the rights of these parties could wholly depend upon the
question whether that relation was duly or unduly constituted?
7. On the first point their Lordships think it right to observe, that it is of the utmost importance to
the right administration of justice in these Courts, that it should be constantly borne in mind by
them that by their very constitution they are to decide according to equity and good conscience;
that the substance and merits of the case are to be kept constantly in view; that the substance and
not the mere literal wording of the issues is to be regarded ; and that if, by inadvertence, or other
cause, the recorded issues do not enable the Court to try the whole case on the merits, an opportunity
should be afforded by amendment, and, if need be, by adjournment, for the decision of the real
points in dispute.
8. But their Lordships think that if the wording of the issues he carefully considered, it will be
found that the issue in substance is, whether the charge under the instrument bound the lands. The
words in which the Principal Sudder Ameen states the issue on this point are : " whether it (the
mortgage Bond) ought to have effect against the mortgaged villages." It was not an issue limited to
the particular description or character in which this act was done, and a misdescription or error in
that respect would not have been fatal to the charge. Consequently, their Lordships cannot agree
with the Sudder Dewanny Adawlut, upon the first point, that the real question in dispute between
these parties, namely, whether the charge bound the lands in the hands of the heir, was not
substantially included in the issues, which were evidently intended to raise it. Neither can their
Lordships adopt the reasoning or the conclusion of the Sudder Dewanny Adawlut, upon the second
point, as to the relation in which the Ranee meant to stand, and substantially stood, to the estate of
her son.
9. Deeds and contracts of the people of India ought to be liberally construed. The form of
expression, the literal sense, is not to be so much regarded as the real meaning of the parties which
the transaction discloses. Now, what is meant by the assumption of proprietorship on the part of
the Ranee, which the judgment ascribes to her? It is not suggested that she ever claimed any
beneficial interest in the estate as proprietor; had she done so, it would have been, pro tanto, a claim
adverse to her son ; and it is conceded by the Respondent's counsel that she did not claim adversely
to her son. The terms of "proprietor" and of "heir" when they occur, whether in deeds or pleadings,
or documentary proofs may, indeed, by a mere adherence to the letter, be construed to raise the
conclusion of an assumption of ownership, in the sense of beneficial enjoyment derogatory to the
rights of the heir ; but they ought not to be so construed unless they were so intended, and in this
case their Lordships are satisfied that they were not so intended. They consider that the acts of the
Ranee cannot be reasonably viewed otherwise than as acts done on behalf of another, whatever
description she gave to herself, or others gave to her; that she must be viewed as a Manager,
inaccurately and erroneously described as "proprietor," or "heir;" and it is to be observed, that the
Collector takes this view, for, whilst he remarks on the improper description of her as heir, or
proprietor, he continues her name as "Surberakar." If the whole context of all these documents and
pleadings be taken into consideration and the construction proceed on every part, and not on
portions of them, they are sufficient, in their Lordships' judgment, to show the real character of her
proprietorship.
10. Upon the third point, it is to be observed that under the Hindoo law, the right of a bond fide
incumbrancer who has taken from a de facto Manager a charge on lands created honestly, for the
purpose of saving the estate, or for the benefit of the estate, is not (provided the circumstances
would support the charge had it emanated from a de facto and de jure manager) affected by the
want of union of the de facto, with the de jure title. Therefore, had the Ranee intruded into the estate
wrongfully, and even practised a deception upon the Court of Wards, or the Collector, exercising
the powers of a Court of Wards, by putting forth a case of joint proprietorship in order to defeat the
claim of a Court of Wards to the wardship, which is the case that Mr. Wigram supposed, it would
not follow that those acts, however wrong, would defeat the claim of the incumbrancer. The
objection, then, to the Ranee's assumption of proprietorship, in order to get the management into
her hands, does not really go to the root of the matter, nor necessarily invalidate the charge ;
consequently, even had the view which the Sudder Dewanny Adawlut took of the character of the
Ranee's act, as not having been done by her as guardian, been correct, their decision against the
charge without further inquiry would not have been well-founded. It would not have been accordant
with the principles of the Hindoo law, as declared in Coleb. Dig., vol. i., p. 302, and in the case of
Gopee Churun Burral v. Mussummaut Ishwuree Lukhee Dibia, (3 Sud. Dew. Adaw. Rep. 93,) and
as illustrated by the case cited for the Appellant in the argument, against the authority of which no
opposing decision was cited. Their Lordships, however, must not be understood to say, that they
see any ground of probability for the assertion, that the Ranee really meant to deceive the Court of
Wards, or the Collector exercising its authority, by any consciously false description of herself.
The title to this Raj cannot readily be supposed to have been unknown in the Collector's office, nor
is it probable that the Ranee could have deceived the office by such a false description of herself.
11. It is a circumstance worthy of remark, too, that the complainant does not ascribe this conduct
to her in his plaint. The case that the plaint makes is not that she intruded upon him and assumed
proprietorship ; the plaint itself says she had possession as guardian, that is, as managing in that
character ; and on a review of the whole pleadings and documentary evidence, and of the
probabilities of the case, their Lordships think it a strained and untrue construction to assign any
other character to her acts than that which the plaint ascribes to them, notwithstanding the use of
terms inconsistent with it. For these reasons, their Lordships think that the judgment of the Sudder
Dewanny Court cannot be supported on the grounds which that Court has assigned.
12. It then remains to be considered whether the judgment is substantially right, though the reasons
as signed for it are not satisfactory or sufficient.
13. If the evidence discloses, as it is contended for the Respondent that it does disclose, no primá
facie case of charge at all on this ancestral estate, then, as the only bar to the resumption by the heir
of his estate is the alleged mortgage title over it, the proof of which lies on the mortgagee, the
complainant's title to the estate, to the mesne profits, and to the other relief, is made out; but if, on
the other hand, the evidence discloses even a primá facie case of charge, some inquiry at least
ought, as it seems to their Lordships, to have been directed.
14. The question then next to be considered is, whether a primá facie case of a subsisting charge is
made out by the Appellant. The question involves the consideration of two points: first, the actual
factum of the deed ; and, next, the consideration for it.
15. First, as to the factum. The execution of the Bond by the Ranee is stated by several of the
attesting witnesses. It was argued, however, on behalf of the Respondent, that the Court ought not
to act on their evidence. Some discrepancies,--such, however, as are not unfrequently found in
honest cases in native testimony,--were dwelt upon. The Sudder Ameen, who decided this case
originally, has made some pertinent remarks on the confirmation which circumstances give to the
oral evidence that the Bond is the deed of the Ranee. The decision by a native Judge, possessing
the intelligence which this judgment of the Sudder Ameen evinces, on a question of fact in issue
before him, is, in the opinion ' of their Lordships, entitled to respect; he must necessarily possess
superior knowledge of the habits and course of dealing of natives, and that knowledge would be
likely to lead him to a right conclusion upon a question of disputed fact. The Sudder Ameen
observes, in substance, that possession went along with this Bond, and that the mortgagee was
inscribed in that character as proprietor on the records of the Collector. He was, therefore, put in
possession as mortgagee, and was publicly known as mortgagee in the Collector's office.
16. It is to be observed further, that his receipt of the rents and profits of the lands included in this
conveyance would diminish, pro tanto, the annual income of the estate, which would come to be
administered by the Ranee, and that this state of things continued for several years after the
execution of the Bond. The Ranee's ignorance, then, of such title, possession, receipt, and
diminution, is, as the Sudder Ameen justly observes, not a probable supposition. It could be
rationally accounted for only on one supposition--that the Ranee was a mere cypher, and entirely
ignorant of that which was done in her name. This, however, does not appear to have been the case
: she herself denied it on a subsequent contest as to the managership; and the act of the Collector
in his decision upon that dispute, in putting her into the management, confirms her own statement
of her capacity. Had her incompetency been of so flagrant a character, as the above hypothesis
demands to be attributed to her, it is not reasonable to suppose that it would have been unknown in
the Collector's office, nor is it reasonable to suppose that the management would have been
confided to her had such been her character. It was argued, indeed, that she may have become by
that time capable ; but it is to be observed that a long course of neglect and mismanagement, which
is attributed to her, would not be a school of improvement.
17. It was argued that the complainant was not to be bound by the Ranee's allegations of her own
competency ; that she had tasted the sweets of management, and would desire their continuance.
Certainly the complainant is not to be bound by her assertion ; but it is not the assertion that is
relied on as confirmation. What is relied on is the result of the contest, and the acknowledgment of
her as one competent to the management of the estate by an officer interested in its right
administration.
18. Their Lordships cannot but concur with the Sadder Ameen in thinking that these circumstances
do materially confirm the story of the attesting witnesses as to the Ranee's execution of the deed.
The story of her non-execution of it is based, in a considerable degree, on a supposition of her
incapacity. That the deed is hers, is, in the opinion of their Lordships, further confirmed by the
great improbability of the history which some of the witnesses of the Respondent give as to the
factum of the instrument. The story told by the witnesses, Heera Lal and Gyapershad Patuk, is so
destitute of probability, so little in harmony with the ordinary conduct of men in like circumstances,
that their Lordships can place no reliance upon it. According to the case of the Respondent, this
Bond was fraudulently executed in the name of the Ranee, without her sanction or knowledge, in
order to fix a false charge of Rs. 15,000, in the Defendant's favour, on the property of the infant
Raja. The Defendant and several associates were, according to this story, conspiring together for
this object. According to the witnesses, who give nearly verbatim the same account of the
transaction, these conspirators had witnesses ready, though not present, who were to attest
consciously the false deed as true ; yet such is at once the impatience and the folly of these
conspiring parties, that every one of the witnesses, each of whom is described as dropping in by
chance as it were, is solicited without any assigned adequate motive, and with no previous
sounding, to become a party to this fraud by consciously attesting the false deed as true. Each
witness declines, and each is entreated to secrecy; and each preserves the secret inviolate, contrary
to duty, and without any assigned motive for secrecy. The communication and the concealment are
both without motive according to the account which is given us. And the story of this utterly
needless communication of his crime, is told of a man used to business, intelligent, and described
by the Respondents as the habitual accomplice of crafty and designing men, the Karindas, in acts
of fraud.
19. Taking the whole circumstances as to the factum of this instrument into consideration, their
Lordships concur in the finding by the Sudder Ameen as to it.
20. Next, as to the consideration for the Bond. The argument for the Appellant in the reply, if
correct, would indeed reduce the matter for consideration to a very short points; for according to
that argument, if the factum of a deed of charge by a manager for an infant be established, and the
fact of the advance be proved, the presumption of law is primá facie to support the charge, and the
onus of disproving it rests on the heir. For this position a decision, or rather a dictum of the Sudder
Dewanny Adawlut at Agra, in the case of Oomed Rai v. Heera Lall (6 Sud. Dew. N. W. P. 218),
was quoted and relied upon. But the dictum there, though general, must be read in connection with
the facts of that case. It might be a very correct course to adopt with reference to suits of that
particular character, which was one where the sons of a living father were, with his suspected
collusion, attempting, in a suit against a creditor, to get rid of the charge on an ancestral estate
created by the father, on the ground of the alleged misconduct of the father in extravagant waste of
the estate. Now, it is to be observed that a lender of money may reasonably be expected to prove
the circumstances connected with his own particular loan, but cannot reasonably be expected to
know or to come prepared with proof of the antecedent economy and good conduct of the owner
of an ancestral estate; whilst the antecedents of their father's career would be more likely to be in
the knowledge of the sons, members of the same family, than of a stranger; consequently, this
dictum may perhaps be supported on the general principle that the allegation and proof of facts,
presumably in his better knowledge, is to be looked for from the party who possesses that better
knowledge, as well as on the obvious ground in such suits of the danger of collusion between father
and sons in fraud of the creditor of the former. But this case is of a description wholly different,
and the dictum does not profess to be a general one, nor is it so to be regarded. Their Lordships
think that the question on whom does the onus of proof lie in such suits as the present, is one not
capable of a general and inflexible answer. The presumption proper to be made will vary with
circumstances; and must be regulated by and dependent on them. Thus, where the mortgagee
himself with whom the transaction took place, is setting up a charge in his favour made by one
whose title to alienate he necessarily knew to be limited and qualified, he may be reasonably
expected to allege and prove facts presumably better known to him than to the infant heir, namely,
those facts which embody the representations made to him of the alleged needs of the estate, and
the motives influencing his immediate loan.
21. It is to be observed that the representations by the Manager accompanying the loan as part of
the res gestæ and as the contemporaneous declarations of an agent, though not actually selected by
the principal, have been held to be evidence against the heir; and as their Lordships are informed
that such primá facie proof has been generally required in the Supreme Court of Calcutta between
the lender and the heir, where the lender is enforcing his security against the heir, they think it
reasonable and right, that it should be required. A case in the time of Sir Edward Hyde East,
reported in his decisions in the 2nd volume of Morley's "Digest," seems the foundation of this
practice. (See also the case of Brown v. Ram Kunaee Dutt, ii Sud. Dew. Adaw. Rep. 791)
22. It is obvious, however, that it might be unreasonable to require such proof from one not an
original party, after a lapse of time, and enjoyment and apparent acquiescence; consequently, if, as
is the case here as to part of the charge, it be created by substitution of a new security for an older
one, where the consideration for the older one was an old precedent debt of an ancestor not
previously questioned, a presumption of the kind contended for by the Appellant would be
reasonable. The case before their Lordships is one of a mixed character; the existing security
represents loans and transactions at various times and under varying circumstances : it is a
consolidating security; and as to part, at least--namely, the ancestral debt--there is, in the opinion
of their Lordships, ground to raise a primá facie presumption in the Appellant's favour of a
consideration that binds the estate. It is unnecessary to the decision to pursue the inquiry as to the
other items of charge, but that part of it which relates to the advance for payment of the revenue
seems to be at least primá facie proved as against the estate. And, as to the whole charge, there is
also at least primá facie evidence in the admissions of the Plaintiff, proved by several witnesses,
uncontradicted on the point. As to the debt of the ancestors, it was said that it was already secured,
and that the estate being ancestral, could not, according to the law current in the North-Western
Provinces, be charged, in the hands of the heir, for an ancestor's debt. But it is to be observed as to
the change of security, that there was a reduction of interest; it is, therefore, a transaction, primá
facie, for the benefit of the estate; and though an estate be ancestral, it may be charged for some
purposes against the heir, for the father's debt, by the father, as, indeed, the case above cited from
the 6th volume of the Decisions of the Sudder Dewanny Adawlut, North-Western Provinces,
incidentally shows. Unless the debt was of such a nature that it was not the duty of the son to pay
it, the discharge of it, even though it affected ancestral estate, would still be an act of pious duty in
the son. By the Hindoo law, the freedom of the son from the obligation to discharge the father's
debt, has respect to the nature of the debt, and not to the nature of the estate, whether ancestral or
acquired by the creator of the debt. Their Lordships, therefore, are clearly of opinion that a primá
facie case of charge for something was made out; and it is not necessary to determine, nor, indeed,
have their Lordships the necessary facts before them to enable them to determine, for how much,
if for anything, this deed must ultimately stand as a security.
23. One point remains to be considered, namely, whether, in taking the account between these
parties, the Defendant is to be charged, as mortgagee in possession, with the actual rents and profits,
or only with the rent fixed by the pottah. It is said for the Appellant, that the Sudder Dewanny
Adawlut did not set aside the pottah. In terms they certainly did not. But their Lordships think that
it was part of one mortgage-security, consisting of several instruments of equal dale with the
mortgage Bond; and that it was intended to create, not a distinct estate, but only a security for the
mortgage-money. Mr. Palmer contended that a stipulation such as this pottah evidences, may stand
in India between mortgagor and mortgagee, and that the Regulations as to interest do not touch
such a case. The Regulations provide for the case of an evasion of the law as to interest by
invalidating the mortgage security, and forfeiting the claim of the mortgagee to his principal and
interest: but Mr. Palmer contends that where there is no such evasion, and a bond fide and fair rent
is fixed upon as representing communibus annis, the rents and profits of the estate, the Court ought
to stand on that, the agreement of the parties, and not to direct the taking of the accounts between
mortgagor and mortgagee- on any other basis. It is certainly possible that, by reason of the provision
that the rent shall be a fixed one, notwithstanding losses and casualties, the mortgagee might be a
loser, in his character of lessee, on an account calculated on this basis ; but, notwithstanding that
contingency, their Lordships think that, as it was not meant that the principal should be risked, it
was virtually a provision to exclude an account, of the rents and profits, and that the decree of the
Sudder Dewanny Adawlut, directing an account of the actual rents and profits, therefore, proceeds
on the right principle, and is in accordance with the true nature of the security and the spirit of the
Regulations.
24. In the case of Roy Juswunt Lall v. Sreekishen Lall, reported in the decisions of the Sud. Dew.
Adaw. in (1852) 14, p. 577, the Court seems to have thought that where a mortgage lease was
granted, and whilst the term was running, the mortgage account could not be taken ; but it appears
from that case, that in former decisions of that Court not reported, where the lease had expired, the
Court directed the account to be taken on the ordinary footing of the receipt of rents and profits of
the mortgaged estate. Their Lordships think that, under the Regulations, unless the principal is
meant to be risked, and is put in risk, the estate created as part of a mortgage security, whatever be
its form or duration, can be viewed only as a security for a mortgage debt, and must be restored
when the debt, interest, and costs are satisfied by receipts.
25. Upon the whole, their Lordships are of opinion that the cause must be sent back for further
inquiry. They think it desirable, however, in order to prevent a future miscarriage, to state the
general principles which should be applied to the final decision of the case.
26. The power of the Manager for an infant heir to charge an estate not his own, is, under the
Hindoo law, a limited and qualified power. It can only be exercised rightly in a case of need, or for
the benefit of the estate. But where, in the particular instance, the charge is one that a prudent owner
would make, in order to benefit the estate, the bond fide lender is not affected by the precedent
mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the
benefit to be conferred upon it, in the particular instance, is the thing to be -regarded. But of course,
if that danger arises or has arisen from any misconduct to which the lender is or has been a party,
he cannot take advantage of his own wrong, to support a charge in his own favour against the heir,
grounded on a necessity which his wrong has helped to cause. Therefore, the lender in this case,
unless he is shown to have acted mala fide, will not be affected, though it be shown that, with better
management, the estate might have been kept free from debt. Their Lordships think that the lender
is bound to inquire into the necessities for the loan, and to satisfy himself as well as he can, with
reference to the parties with whom he is dealing, that the Manager is acting in the particular instance
for the benefit of the estate. But they think that if he does so inquire, and acts honestly, the real
existence of an alleged sufficient and reasonably-credited necessity is not a condition precedent to
the validity of his charge, and they do not think that, under such circumstances, he is bound to see
to the application of the money. It is obvious that money to be secured on any estate is likely to be
obtained on easier terms than a loan which rests on mere personal security, and that, therefore, the
mere creation of a charge securing a proper debt cannot be viewed as improvident management;
the purposes for which a loan is wanted are often future, as respects the actual application, and a
lender can rarely have, unless he enters on the management, the means of controlling and rightly
directing the actual application. Their Lordships do not think that a bona fide creditor should suffer
when he has acted honestly and with due caution, but is himself deceived. Their Lordships will,
therefore, humbly report to Her Majesty in the following terms :--
" Their Lordships are of opinion that the Ranee ought to be deemed to have executed the mortgage
Bond, dated Assar Soodee Poornumashee, in the pleadings mentioned, as and in the character of
guardian of the infant Lal Inderdowun Singh.
"And their Lordships are of opinion that the validity, force, and effect of the Bond, as to all and
each of the sums, of which the sum of Rs. 15,000, thereby purporting to be secured, is composed,
depend on the circumstances under which the sums, or such of them as were advanced by the
Appellant, were respectively so advanced by him, regard being had also, in so far as may be just,
to the circumstances under which the same were respectively borrowed.
" And their Lordships are also of opinion that, assuming the Bond to be invalid and ineffectual, the
Appellant would, nevertheless, be entitled to the benefit of any prior mortgage or mortgages paid
off by him affecting the property comprised in the Bond, if and in so far as such prior mortgage or
mortgages was or were valid and effectual.
" And their Lordships, therefore, are of opinion that the decrees of the Zillah and Sudder Courts
respectively ought to be reversed, and the cause remitted to the Sudder Court, with directions that
inquiry be made into the several matters aforesaid, and that all such accounts be taken and such
other inquiries made as having regard to such matters and to the circumstances of the case, may be
found to be necessary and proper, with directions also that the Sudder Court do proceed therein as
may be just, both with respect to the said mortgage Bond and the several instruments of even date
therewith; and that the costs of the appeal be costs in the cause, to be dealt with by the Sudder
Court."
Murarka Properties (P) Ltd. v. Beharilal Murarka and Ors., AIR 1978 SC 300
Hon'ble Judges/Coram: N.L. Untwalia and P.S. Kailasam, JJ.
Authorities Referred:
Mulla in his Principles of Hindu Law (14th Ed.)
Prior History:
From the Judgment and Order dated May 18, 1967 of the Calcutta High Court in Appeal 14
of 1957. Appeal set down ex parte against Respondents 7(a) to 7(e), 10, 11, 13-15, 18, 24, 27-
33, 45 and 46-48--
Case Note:
Family - rights of 'karta' - Hindu Law and Sections 59, 62 and 63 of Indian Evidence Act,
1872 - property of HUF transferred to appellant company - co-parceners challenged
transfer on ground that at time of transfer partition had taken place - co-parceners also
asked for their share in property - appeal allowed by High Court - appeal against High
Court judgment - established by Hindu law and several precedents that 'karta' can alienate
property of HUF if justified by circumstances - acts of 'karta' bind interest of co-parceners -
records proved that property was transferred before partition - Court satisfied that
property was transferred with consent of adult members of family and for benefit of family
- held, transfer of property valid since date of document of transfer and no co-parcener can
challenge its validity.
JUDGEMENT
Kailasam, J.
1. This appeal is by certificate granted by the Calcutta High Court against its judgment dated 18th
May, 1967 in appeal No. 14 of 1957, upholding and affirming the judgment and decree dated 13-
9-1956 in suit No. 1607 of 1938. The appellants in this appeal are defendants 12 and 13 in the suit.
The suit was filed by Beharilal and his mother Ginni praying amongst other reliefs for a declaration
that the respondent is entitled to 1/8th share in the assets and properties belonging to the joint family,
for setting aside all conveyances and transfers and for a declaration that plaintiff is entitled to
separate properties and funds of Laloolal Murarka, the father of the plaintiff and husband of second
plaintiff. After written statements were filed, the plaint was amended on 6-7-1939 whereby an
alternative claim for 1/8th share of the Company's property was made if it was held that there was
no joint family but only a company.
2. One Ram Niranjandas Murarka died on 29th October, 1930 leaving his widow Janki Devi, the
10th defendant and 8 sons-Hiralal Murarka defendant No. 1. Nandlal Murarka since deceased,
Radhelal Murarka defendant No. 3, Misri Lal Murarka defendant No. 5, Chinni Lal Murarka
defendant No. 7, Chotelal Murarka defendant No. 8, Kisenlal Murarka defendant No. 9, and vast
movable and immovable properties and several business assets situate within and outside the
jurisdiction of the Calcutta High Court. Motilal Murarka died without leaving any issue. Amongst
8 sons, in this appeal, we are concerned with the families of 3 sons. Laloolal's wife Ginni is the
second plaintiff and their son is Beharilal, the first plaintiff. Radheylal's son is Makhanlal and
Makhanlal's son is Murarilal respondent 12 in this appeal. Murarilal's widow is Bimla and their son
is Rahul. Bimla and Rahul were brought on record as legal representatives of Murari lal after his
death pending appeal in this Court and they are contesting the present appeal. Chinnilal's son is
Ratanlal and he is respondent 20 who is also contesting this appeal. The other sons and their
descedants contested the plaintiff's plea that they were members of a joint family. Their case was
that family was divided and the impugned alienations in favour of D. 12 and D. 13 were valid. They
have stuck to this plea throughout and as they are in fact supporting the appellants, it is unnecessary
to consider their case separately. The suit was decreed and an appeal was preferred by (defendants
12 and 13. Pending appeal the plaintiffs changed their front and started supporting the present
appellants, defendants 12 and 13, stating that the impugned alienations were binding on them. But
Bimla and Rahul who were brought on record pending the appeal in this Court are questioning the
validity of the impugned transaction though Murarilal opposed the plaintiffs' claim during the suit
and the appeal. Though Chinnilal in his written statement supported the case of the present
appellants that the impugned transactions were valid, Chinnilal's son Ratanlal, who attained
majority in 1943, challenged the validity of the impugned transactions 3 years after attaining
majority. The position therefore is that the plaintiffs who belonged to Laloolal's group (the widow
and son of one of the sons of Laloolal) who were the only persons that questioned the alienations
at the time of the suit later on supported the case of the present appellants, while the descendants of
two sons Radheylal and Chinnilal though they originally affirmed the impugned transactions are
questioning the validity of transactions and contesting the appeal before us.
3. The present litigation is about 39 years old. The suit was filed on 22-8-1938. The decree was
passed by the trial court on 13-9-1956 and the appellate decree is dated 18-5-1967. It has now come
up before us after 10 years since the passing of the decree by the appellate court in Calcutta. The
trial went on for 63 days.
4. The main contention that was raised in the appellate court by Defendant 12 and Defendant 13,
the present appellants, was that the immovable properties which stood in the name of
Ramniraniandas were his self-acquired properties and they were brought: into the assets of company
of his 8 sons having defined shares in the said properties. The properties were conveyed to the
appellant's company. The appellate court held that the family of Ramniranjandas Murarka consisted
of himself and his sons and was a joint Hindu family governed by Mitakasbara law until the death
of Ramniranjandas and thereafter the families of his sons and their sons and grandsons continued
to be a joint Hindu family until the institution of the suit. They also rejected the plea that even if
the family was joint the transfers of the impugned property were for better management of the
immovable properties and as such for legal necessity and would thus bind the members of the joint
family. It further held that there is no evidence that immovable properties were brought into the
joint stock of the firm by Ramniran jandas and that on the assumption that the said properties were
separate and self-acquired properties of Ramniranjandas, the said properties were inherited by his
8 sons from their father and upon the father's death they were ancestral properties in their hands
and the respective male descendants of the said 8 sons of Ramniranjandas also acquired coparcenary
interest in the said immovable properties. In this view the appellate court dismissed the appeal
preferred by defendants 12 and 13.
5. In this appeal before us Mr. Lal Narain Sinha, the learned Counsel - for appellants, defendants
12 and 13, submitted that without going into -the correctness of the finding of lower court that
Ramniranjandas and his sons were members of joint Hindu family, he would confine himself to a
limited submission that the impugned transactions showed that there was a partition earlier and in
any event the family became divided in status on 9-12-1932, and a disruption of the original joint
family into 8 different families took place. Secondly, he submitted that even) if this contention is
not accepted, and it is found that 8 sons were members of a joint family, as the impugned alienations
were as a result of joint deliberations and unanimous decision of all of the eight sons and other adult
members of the family, it must be presumed to be a prudent transaction as the entire family
properties were preserved for 8 sons though it was by transferring them to a company, and that the
alienations were for the benefit of the family and therefore for family necessity. Apart from the two
main contentions, the learned Counsel also submitted that even if the transactions were not binding
on the members of the joint family as they are only voidable they can be set aside only at the instance
of a coparcener to the extent of his interest in the joint family and as the only branch that questioned
the validity of alienation has left the field, the present respondents who originally supported the
alienations are not entitled to any relief and in any event their claim, if any, is barred by limitation.
6. The transactions that are impugned are conveyances in favour of the appellants Murarka
Properties Limited and Buckingham Court (F) Ltd. by various conveyances, one of which is Ex. L.
As the plea Of Shri Lal Narain Sinha, the learned Counsel for the appellants, is that Ex. L itself
proves that at the date of the document there was no joint family and that in any event the document
itself effected a separation, it is necessary to refer to the relevant recitals in the document. The
document prefaces : "This indenture of conveyance dated 9th December, 1932 between Hiralal.
Murarka eldest son of Ramniranjandas Murarka for himself and as the father and natural guardian
of his infant son Kunj Lal Murarka and as the Karta of the joint family consisting of himself and
his son. The same description is adopted in the cases of all sons, for instance in the case of second
son the recital is Nandial Murarka son of the said Ramniranjandas Murarka deceased for self and
as the father and natural guardian of his infant sons Shankerlal Murarka and Purshottamlal Murarka
and as the Karta of joint family consisting of himself and his sons. It will be seen that all the 8 sons
have described themselves each one stating that he is acting on behalf of himself and his sons.; The
recitals show that there were 8 different joint families consisting of each of the sons with his sons
etc. The plea of the learned Counsel that a reading of the document would show that the, brothers
themselves affirmed that there were 8 joint families is sound. The reply to this contention on behalf
of the contesting respondents as put forward by Mr. Mridul, the learned Counsel, is that the plea
that there was disruption of joint family in 1932 is a new point and should not be allowed to be
raised. This plea cannot be accepted. The appellants denied the existence of a joint family consisting
of Ramniranjandas and his sons and grandsons or that the joint family continued after the death of
Ramniranjandas. It was specifically mentioned in para 2 of the written statement that there was
disruption of coparcenary prior to 1926 and Ramniranjandas and his 8 sons carried on the company
after they became separate and as such there was no joint family as alleged in the plaint. This plea
is very specific that there was disruption of the joint family prior to 1926. The point at which the
disruption took is not stated clearly but the plea of the appellants that it was prior to 1926 would
enable him to rely on the document of 1932 to establish that there was a separation some time before
1932. In the Memorandum of appeal dated 24-1-1967 by the appellants in ground No. 26 it was
clearly alleged that the learned Judge was wrong in holding that Ramniranjandas and other sons
were members of joint family. The contention of Shri Mridul, the learned Counsel for respondents,
that this plea is new and should not be allowed cannot therefore be sustained. The second contention
of Shri Lal Narain Sinha, the learned Counsel for the appellants, relying on the recitals in Ex. L, is
that in any event the document itself effected a separation in status at least from the date of the
document. The effect of the documents L, M, N, O etc. is that the properties which were owned by
several sons were transferred to a company consisting of themselves alone. Even if the recitals in
the document do not prove separation of status before the date of the document they make it clear
that 8 sons who were acting as Kartas of their sons and grandsons were transferring the properties
to a company consisting of themselves alone. It is to be noted that the entire family properties were
transferred to the company consisting of 8 brothers and their descendants, alone. The transaction
will have the effect of transferring the properties from the families to the company though it may
not be in the nature of a family settlement. Even if the joint family of Ramniraniandas Murarka was
in existence before 9-12-1932 by this transaction had the effect of bringing about a separation in
status and the members entered into the transactions as co-tenants. We are satisfied that the recitals
in documents Ex. L and others prove that even if there was a joint family in existence before the
date of the document, the recitals in the documents would have the effect of disrupting the joint
family.
7. Mr. Lal Narain Sinha submitted that even if it is held that there was a joint family is existence on
the date of the impugned documents, the transactions are for the benefit of the family and as such
binding on all the members. The facts disclose that the transactions were entered into not only by
all the eight sons but also by all the adult coparceners of the eight branches. It cannot be denied that
the transections were the result of joint deliberations and unanimous decision of all the adult
members. The evidence of the Solicitor who prepared the documents is that it was for necessity and
with the object of preserving the property, the entire properties of the family were transferred to the
company consisting of eight sons and their families alone. Eight branches secured equal number of
shares in the transferee company. On the facts the question arises whether the transaction could be
held to be prudent and binding on the members of coparcenary. Bearing in mind the fact that all the
adult members unanimously joined in the transaction after deliberations by all of them and that the
entire properties were transferred in equal shares to the company of which the 8 sons were only
shareholders, we will proceed to examine the validity of transaction.
8. Mulla in his Principles of Hindu Law at p. 300 (14th Ed.) states the law thus :
"The power of the manager of a joint Hindu family to alienate joint family property is analogous to
that of a manager for an infant heir as defined by the Judicial Committee in Hunooman Persaud v.
Musummat Baboose (1856) 6 Moo. I.A. 393. The manager of a joint Hindu family has power to
alienate for value joint family property, so as to bind the interest of both adult and minor coparceners
in the property, provided that the alienation is made for legal necessity, or for the benefit of estate."
As to what is benefit of these state there was conflict of opinion. One view was that a transaction
cannot be said to be for the benefit of an estate unless it is of defensive character calculated to
protect the estate from some threatened danger or destruction. Another view was that for a
transaction to be for the benefit of the estate it is sufficient if it is such as a prduent owner, or father
a trustee, would have carried out with the knowledge that was available to him at the time of
transaction. The question whether it is for the benefit of family would depend upon the facts of the
case. On the facts of this case there could be no difficulty in coming to the conclusion that the
transaction was for the benefit of the estate. The evidence of Mitra, the Solicitor who was
instrumental in bringing about the transactions, is that the purpose or the reason for these
transactions is for protecting the properties for the members of the family and that the idea was that
the properties may not tie. partitioned and to prevent any member of the Murarka family front
selling away any share of the property by transfer or mortgage. The witness was not cross-
examined. It is clear therefore that by the transaction there was no dissipation of the property. The
transaction was only for the purpose of preserving the properties for all the members after due
deliberations by all the adult members. In Bal Mukand v. Kamla Vati and Ors.
MANU/SC/0303/1964 : [1964]6SCR321 , the Court held that any transaction to be regarded as one
which is of benefit to the family need not necessarily be only of a defensive character but what
transactions would be for the benefit of the family would depend on the facts and circumstances of
each case. The Court must be satisfied on the material before it, that it was in fact such as conferred
or was necessarily expected to confer benefit on the family at the time it was entered into. The
property in question in the case referred to consisted of a fractional share belonging to the family
in a large plot of land. Earnest money was paid to Karta, but the Karta did not execute the sale deed.
The appellant instituted a suit for specific performance. The other members who were brothers of
the Karta and who were adults at the time of the contract were also impleaded in the suit as
defendants. The suit was resisted on the ground that there was no legal necessity and that the
contract for sale was not for the benefit of the family. On the facts, the Court held that to sell such
property and that too on advantageous terms and to invest the sale proceeds in a profitable way
could certainly be regarded as beneficial to the family. These observations apply with equal force
to the facts of the present case. We have no hesitation in holding that the transaction was for the
benefit of the family and as such even if it was found that there was a joint family, the transaction
would be binding on all of the coparceners. In this view, it is unnecessary for us to consider whether
the transaction could be regarded as a family arrangement as was contended by Mr. Lal Narain
Sinha. The transaction may not strictly be a family arrangement as there is a transfer of properties
from the family to the company in which all the 8 brothers were allotted equal shares.
9. We will now refer to certain documents and conduct of the parties relied on by the learned
Counsel for the contesting respondents in support of his contention that die transactions entered
into under Ex. L were not considered as having effected division in status. After the date of the
impugned document in 1932, the parties entered into two transactions one on 6-10-1935 and another
on 19-10-1935. By the document dated 6-10-1935 Ex. 000040, the eight brothers put on record that
their mother gifted and distributed all the ornaments, jewellery and silver wares to and amongst all
the eight brothers and nothing now remained undistributed and the said property so gifted and
distributed remained the property of each individual concerned. By the document Ex. 000039 dated
10th October, 1935 the eight brothers put on record that they have divided and distributed equally
amongst themselves all the household furniture, fittings, electrical equipments, musical
instruments, beddings, photo cameras, cutleries, radios and field-glasses which were with them and
their sons in Calcutta and it remained only the exclusive property of each individual and was in
their possession. It was submitted by Mr. Mridul, counsel for the respondents, that these documents
would indicate that the separation was effected for the first-time in October, 1935 or at any rate the
immovable properties were divided about the time when these transactions were entered into. It is
a common knowledge that usually a division of the movables takes place after immovable
properties are divided. These two documents instead of supporting the plea of the respondents
probabilise the case of the appellants that the separation took place before the date of these
documents. The learned Counsel for the respondent relied on two affidavits filed by the members
of the family to the effect that the joint family continued. In Ex. I dated 9th December, 1936
Mohanlal Murarka stated in a petition for bringing on record the legal representatives for executing
a decree obtained by Ramniranjandas Murarka that Ramniranjandas Murarka (the deponent's
grandfather) during his life-time and at the time of, his death along with the applicants named in
the petition constituted a Hindu joint family governed by the Mitakshara School of Hindu Law.
This affidavit though filed before the institution of the suit cannot be taken as proving the existence
of the joint family after the death of Ramniranjandas Murarka. All that it states is that
Ramniranjandas Murarka during his life-time and at the time of his death along with the applicants
was member of joint family. The affidavit does not throw any light as to whether the joint status
continued after Ramniranjandas died. In Ex. UU a verified petition filed for bringing on record legal
representatives of Ramniranjandas Murarka for executing a decree stated that the petitioners were
legal representatives as Ramniranjandas Murarka was a Hindu governed by Mitkshara School of
Law. It is averred that the joint family continued after the death of Ramniranjandas Murarka. These
two affidavits do not advance the case of the. respondents any further. Reference was made to
evidence of Radheylal and that of Ganariwale who spoke to the existence of the joint family. In the
face of the documentary evidence on record, the oral evidence is not entitled to any weight.
10. Though the conclusions arrived at by us would dispose of the appeal, we would shortly refer to
the submission of Shri Lal Narain Siriha that the present respondents have no status to oppose this
appeal, the plaintiff having retired from the contest. While this plea may be sound as regards Bimla
and Rahul son of Murarilal the case of Ratanlal stands on a different footing. Radheylal son of
Ramniranjandas and his son Makhanlal father of R. 12 contended that the impugned transactions
were valid. The legal representatives of Murarilal, Bimla and Rahul who came on the record in the
appeal before the Supreme Court cannot be allowed to put a different case from that of Murarilal.
This objection is not available against Ratanlal, respondent 20. In 1946, three years after the date
of his attaining majority, he filed the statement challenging the validity of impugned transaction. It
was submitted on behalf of the appellants that Ratanlal cannot be permitted to challenge the validity
of the transactions as the plea was taken 3 years after his attaining majority. It was also contended
that the plaintiff representing one of the 8 brothers alone prayed for allotment of 1/8th share and
the challenge as regards alienation of share of others cannot be sustained. We do not think we are
called upon to decide this question, but we may observe that one of the reliefs asked for is for setting
aside the alienation and therefore the failure of one of the branches to question the validity of the
alienation would not bar the right of the other branch for the said relief.
11. On a consideration of the entire evidence placed before us. and the contentions of the parties,
we hold that the family of Ramniranjandas Murarka became divided in status before 1932 and that
in any event a division in status was effected from the date of the document Ex. L etc. in 1932, and
that even if there was a joint family in existence as the. transactions were for the benefit of the
family, the other coparceners cannot challenge its validity. In the result the appeal is allowed and
the decree of the trial court is set aside so far as the appellants, Defendant 12 and Defendant 13, are
concerned. Costs will be paid by the contesting respondents who are legal representatives of R-12,
Bimla and Rahul, and R-20 and his three sons R-42, R-43, R-44.
Apoorva Shantilal Shah v. Commissioner Of Income Tax Gujarat I, Ahmedabad, AIR 1983 SC
409
Hon’ble Judges/Coram: Hon'ble Mr. Justice Amarendra Nath Sen, Hon'ble Mr. Justice P.N.
Bhagwati
Summary : Family and Personal - Income Tax and Direct Taxes - Income Tax Act, 1961, s.
171 - Hindu Law - (A) Whether the father in exercise of his right as patria potestas or
otherwise can effect a partial partition between himself and his minor sons of joint family
properties of a Hindu joint family governed by the Mitakshara school of Hindu law - Held,
partial partition among father and minor sons is permissible - (B) Determination of effect of
unequal distribution amongst co-sharers - Held, partition is not invalid - Appeal allowed.
JUDGEMENT
Amarendra Nath Sen, J.
1. The principal question for decision 5 in this appeal by Special Leave is whether the father in
exercise of his right as Patria Potestas or otherwise can effect a partial partition between himself
and his minor sons of joint family properties of a Hindu joint family governed by the Mitakshara
School of Hindu Law. The assessee, a Hindu undivided family (hereinafter referred to as H.U.F.),
which consists of four members, namely, (1) Shri Apoorva Shantilal Shah, (2) his wife Smt. Karuna
and their minor sons (3) Chintan and (4) Tejal, is the appellant before us. The members of the H.U.F.
are governed by the Mitakshara School of Hindu Law.
2. The D assessment year in question is the year 1975-76. During the assessment pertaining to the
assessment year under consideration, Shri Apoorva who is the father of the minor sons and husband
of Smt. Karuna and the Karta of the H.U.F. made an application to the Income Tax officer for
recognising partial partition under S. 171 of the Income Tax Act, 1961 (hereinafter referred to as
the Act), claiming that two partial partitions bad taken place amongst the members of the said
family, one on 24.12.1973 in respect of 200 shares of Gujarat Steel Tubes Ltd. and the other on
29.12.1973 in respect of 1777 shares of the same company.
3. On enquiry the Income-Tax officer (hereinafter for the sake of brevity referred to as I.T.O.) found
that the partial partitions had been embodied in memoranda of agreements of partition. The I.T O.
however, refused to record that there had been a partial partition of joint family properties, as he
was of the view that partial partitions in question could not be recognised inasmuch as the remaining
shares, after making certain allocations in favour of the two minor sons were not allotted in their
entirety to the remaining third coparcener, namely, Shri Apoorva separately or to Shri Apoorva and
his wife Karuna jointly, describing them as members of the H.U.F. The I.T.O. further held that the
said partitions did not purport to have been made at the distance of the minor children, as this course
would require the approval of the Court but the same had been purported to have been made at the
instance of Shri Apoorva.
4. The I.T.O. hinted in the order that the distribution of the shares had not been made equally either
amongst the three members including the two minor sons or amongst the four members of the
H.U.F., as Apoorva's wife Karuna also became entitled to an equal share on partition between the
father and the sons. Against the order of the I.T.O. the assessee H.U.F. presented an appeal before
the Appellate Assistant Commissioner (hereinafter referred to as A.A.C. for the sake of brevity).
The A.A.C. allowed the appeal and held that there had been genuine partial partitions between the
coparceners in respect of the said shares. The A.A.C. held that it was not necessary to obtain court's
sanction even in a case where some of the parties to the partition were minors.
5. As regards the print that the distribution of shareholding had not been made on equal basis, the
A.A.C., taking into consideration some earlier partitions, came to the' conclusion that the
distribution had been equally made. The A.A.C. further observed that even if the distribution had
not been made on equal basis that would not affect the validity-of the partitions in question and the
minor sons, if they felt aggrieved in this regard, could on attainment of majority seek to avoid the
said partitions. Aggrieved by the order of the A.A.C., the Revenue went up in appeal to the Income-
Tax Appellate Tribunal (referred to as tribunal hereinafter for the sake of brevity) to challenge the
A.A.C's recognition of the said partitions.
6. The Tribunal held for reasons recorded in the order that partial partitions in the instant case were
outside the framework of the Hindu Law and as such they could not be recognised as valid for the
purposes of S. 171 of the Act. In that view of the matter the Tribunal set aside the A.A.C's order and
restored the order of the I.T.O.
7. Under S. 256 (1) of the Act, the Tribunal referred the following question to the High Court:-
(1) Whether on the facts and in the circumstances of the-case, the Tribunal was right in holding that
Shri Apoorva Shanti1al could not himself have given consent on behalf of his minor sons to the
partitions proposed by him in his individual capacity as father ?
(2) Whether on the facts and in the circumstances of A the case, the Tribunal was right in holding
that the partial partitions were outside the framework of Hindu Law ?
(3) Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that
the partial partitions could not be recognized as valid for the purpose of s. 171 of the Income-tax
Act, 1961 ?
(4) Whether on the facts and circumstances of the case, the Tribunal was right in holding that partial
partitions made by a Hindu father in exercise of his patria potestas cannot be recorded as a valid
partitions under s. 171 of the Income-tax Act, 1961 ?
(5) Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that
the partial partition did not amount to a family arrangement in which the father acted as a natural
guardian of the two minors sons after he had exercised his patria potestas ?
(6) Whether the Income-tax Department 9 competent to challenge the exercise of patria potestas by
a Hindu father in respect of coparcenery property, making a partial 1 partition ? For reasons recorded
in the judgment the High Court answered all the questions in the affirmative and against the
assessee.
8. The High Court in its judgment has held that the father under the Hindu Law has no power or
authority to effect any partial partition of Joint family properties between himself and his minor
sons. The High Court has observed that apart from the decision of the Madhya Pradesh High Court
in the case of Commissioner of Income-tax v. Seth Gopaldas H.U.F there was no decision of any
court on the point. The High Court also considered other decisions and books and C' treatises on
Hindu Law. The High Court held that on a consideration of the authorities, the following
propositions were established.
9. From the stand point of ancient Hindu Law, what was recognised was only a partition in respect
of all the properties of the H.U.F., upon disruption of the status of H.U.F. regardless of whether
the properties were actually divided by metes and bounds or whether these were there after (after
disruption of joint status) held as tenants-in common.
10. Partial partition in the sense of division in respect of part of the assets while continuing the
status of HUF in respect of rest of the assets was not known to the ancient Hindu Law and was not
recognised by ancient Hindu Law
11. Partial Partition in the sense of division of some of the properties whilst continuing the status
of HUF in respect of other items of property originally belonging to the HUP came to be recognised
only later on by evolution of custom and by judge-made law.
12. Such a partial partition was so recognised only if it was made by consent of all the coparceners.
In other words, partial partitions in respect of only some items of property whilst continuing the
status of HUF in respect of rest of the items of property could be effected only with the consent of
all the coparceners. When there was a disruption of the status of the HUF only one or more of the
coparceners could not insist for division of some items of the property without effecting division
in respect of all the items of properties except by consent of all the coparceners.
13. Tn respect of a joint family consisting of a father and his sons, the traditional Hindu Law
recognised the right of a father in his capacity as patria protestas to exercise his extraordinary
power to disrupt the status of HUF and to divide his sons inter se without their consent subject to
the rider that 'all' assets of the HUF were subjected to partition.
14. The aforesaid extra ordinary power is subject to the qualification that he gives to his sons an
equal share and division is not unfair (vide Gupte's Hindu Law 2nd Edn.,). "The Power of the
father to sever the sons inter se is a survival of the patria potestas and may be exercised by him
without the consent of his sons'.. "Again, in all A cases his power must be exercised by him
bonafide and in accordance with law; the division must not be unfair and the allotment must be
equal. He must give his sons equal share with himself"
15. There is nothing in (I) either ancient Hindu Law or (2) customary or judge-made law which
authorises the father in exercise of his extraordinary power to effect a partial partition of HUF
consisting of himself and his minor sons by dividing some items of properties whilst continuing
the joint status in respect of the rest of the properties.
The High Court observed:-
"The validity of the aforesaid propositions is incapable of being disputed and has not been
disputed. What has been contended on behalf of the assessee is that whilst there is no express
provision in so many words, either in the ancient Hindu texts or Judge-made law, that the power
of a Hindu father to effect partition of a HUF consisting of him self and his sons including minor
sons in exercise of his power as patria protestas extends even to partition in respect of only some
items of property it is required to be inferred by implication. In other words, it is argued that though
there is no express reference to the power to effect that partial partition in the sense of division of
some items of property while continuing the status of HUF in respect of the rest and though such
power is not recognised in terms, it follows as a necessary corollary."
16. The High Court noted that this contention has been negatived by the Madhya Pradesh High
Court in the case of Gopaldas (supra) and the High Court for reasons recorded in "the judgment
rejected this contention. The High Court further held that the transaction in question was in any
event invalid in the facts and in the circumstances of this case.
17. Aggrieved by the judgment of the High Court, the assessee with special leave granted by this
Court has preferred this appeal.
18. In this appeal before us, two main contentions have been urged on behalf of the appellant. The
first contention urged is that the High Court went wrong in holding that the father cannot effect
any valid partial partition between himself and his minor sons of joint family property belonging
to Hindu undivided family consisting of himself, his wife and minor sons who are governed by the
Mitakashra School of Hindu Law. The other contention raised is that the High Court erred in
coming to the conclusion that in the facts and circumstances of this case, the partial partitions were
invalid.
19. Mr. Desai learned counsel appearing on behalf of the appellant has advanced the following
arguments.
20. According to the Mitaksbara School of Hindu Law, the father has a power to divide ancestral
property among his sons and the partition made by him is binding on his sons provided that the
power is exercised bonafide and in accordance with law which regulates and restricts it in the
interests of his sons. This power on the part of the father is recognised in text books on Hindu Law
and has been accepted in a number of decisions beginning with the case of Kondaswami v.
Doraisamy Ayyar.
21. A father in any such case of ancestral property has the power to separate from all or from even
some of his sons remaining joint with the other sons or leaving them to continue as a joint family
with each other. The consent of the sons is not necessary for the exercise of that power whether
they are majors or minors. In this connection reference is made to para 323 of Hindu Law by D.F.
Mulla and para 458 of Mayne's Hindu Law ).
22. Mulla's Hindu Law, 11th Edn. reads as follows:- Hindu Law, 11th Edn. reads as follows:-
"The father of a joint family has the power to divide the family property at any moment during his
life, provided he gives his sons equal shares with himself, and if he does so, the effect in law is not
only a separation of the father from the sons, but a separation of the sons inter se. The consent of
the sons is not necessary for the exercise of that power. But a grandfather has no power to bring A
about a separation among the grandsons. The right of a father to sever sons inter se is a part of the
patria potestas still recognised by the Hindu Law."
23. Para 458 of Mayne's Hindu Law and Usage, 11th Edn.reads as follows:-
"Partition may be either total or partial. A partition may be partial either as regards the persons
making it or the property divided.
It is open to the members of a joint family to sever in interest in respect of a part of the joint estate
while retaining their status of a joint family and holding the rest as the properties of an undivided
family.
Any one coparcener may separate from the others. but no coparcener except the father or
grandfathers, can compel the others to become separate amongst themselves. A father may
separate from all or from some of his sons, remaining joint with the other sons or leaving them to
continue a joint family with each other. A separation between coparceners, for instance, between
two brothers, does neither necessarily nor even ordinarily involve a separation between either of
the coparceners and his own sons."
24. So extensive and wide is this patriarchal power of the father that it has been recognised even
in cases where all the sons were minors or an only son was a lunatic. Reference is made to the
decision of the Bombay High Court in the case of Bapu Hambira Patil v. Shankar Bahu Patil, and
to the decision of the Madras High Court in the case of Venkataswara Pattar v. K. Mankayammal
.
25. S. 171 of the Income-tax Act, 1971 and S. 25A of the earlier Act have been all along accepted
as machinery provisions and not charging sections. In the earlier Act though there was no express
reference to partial partitions, the preferable view expressed in decisions under that Act was that
if there was a partial partition of an asset of the family or an asset of the family was divided and a
partnership was constituted and the family continued joint as regards other properties, the
assessment on the basis of undivided Hindu family would be confined to the income of the
properties so remaining undivided and the income of the property partitioned would be excluded
from the computation of the income for assessment. It was only income received from the
properties not partitioned that would be considered to be the income of the joint family. Reliance
has been placed on the decision in the case of Charandas Haridas v. C.I.T. Bombay, (1960) 39
I.T.R. 2021960 Indlaw SC 344.
26. This power of the father has been described as his "superior power" or "peculiar power" or
"patria potestas". There is neither principle nor authority for the proposition that the exercise of
this independent and extensive power of the father even in the context of minor sons could not
take into its purview the lesser power to partition only some of the family properties without
disrupting the status of the members of the joint family as regards other properties even when it is
a genuine exercise of the lesser power. At no time was there recognised any limitation or inhibition
on the power of the father, though of course the partition effected by him had to be fair and
equitable. There is no text of Hindu Law which prohibits partial partition whether as to person or
as to property.
27. The decision of the Privy Council in the case of Appovier v. Ram Subba Aiyan when it speaks
of partial partition of the joint family by agreement of the coparcener cannot possibly be read as
restricting the patriarchal and superior power of the father to effect division of the entire joint
family properties and to exclude operation in case of exercise of the lesser right of division of only
some of the family properties.
28. Mr. Manchanda learned counsel appearing on behalf of the department, has advanced the
following arguments:
29. Under ancient Hindu Law, partial partition was unknown. Severence of status disrupted the
family. The joint family need not necessarily have any property. If it bas property, then its
separation is only an incidence of the severence of status.
30. Partial partition is judge made law and the earliest case where this was mooted was in 1846 in
the case of Rewun Prashad v. Radha Beeby This was followed in Appovier's case (supra) and then
in certain decisions of Indian Courts. Reference is also made to paragraph 458 of Mayne's Book
on Hindu Law and Usage for contending that agreement between the parties is a sine qua non.
31. The powers of patria potestas are confined mainly to the power to sever the status of the joint
family as-a whole. Judge. made law which has recognised partial partition has attempted to extend
the ancient, feudal archaic patriarchal powers of patria potestas to joint families so as to include
the power of partial partition with the consent of the parties. There could be no justification for
now extending it, particularly as the legislature itself, as per the Finance (No. 2) Act, 1980 w.e.f.
1.4.80 has de-recognised partial partition altogether. Sub-s. (9) has been added to S. 171 of the Act
and by this provision partial partition of a HUF effected after 31.12.78 will be de-recognised for
income-tax purposes and this sub-section has been incorporated with the object of curbing the
creation of multiple HUF by making partial partitions. Where a HUF is taxed in the status of HUF
it will continue to be taxed as such unless there has been a total partition of the family properties
by metes and bounds and an order to that effect is recorded by I.T.O.
32. The powers of patria potestas of a father have always been understood to be restricted and
limited to a complete and whole partition. This power can only be exercised with regard to the
entire property, provided the property is divided equally and fairly by the father.
33. We may observe that in course of the hearing, reference was made to a number of decisions of
various courts by the learned counsel for the parties.
34. We shall now proceed to consider the decisions which appear to us to leave a material bearing
on the question involved in the appeal. We shall first refer to the decision of this Court in the case
of Charandas Haridas1960 Indlaw SC 344 (supra). This decision which appears to have clear
bearing on the question and which considers an earlier decision of the Privy Council, does not
appear to have been cited before the High Court. The material facts of this case may be briefly
noted;-
"Charandas Haridas was the Karta of a Hindu undivided family consisting of his wife, Shantaben,
three sons and himself. He was a partner in six managing agency firms in six mills In previous
years the income received by him as partner in these Managing Agencies was being assessed as
the income of the Hindu undivided family. On December 11, 1945, Charandas Haridas acting for
his three minor sons and himself and Shantaben his wife, entered into an oral agreement for partial
partition. By that agreement Charandas Haridas gave one pie share to his daughter Pratibha in the
managing agency commission from two of the six managing agencies held by the family. The
balance together with the other shares in the other managing agencies was divided in five equal
shares between Charandas Haridas, his wife and sons.
This agreement was to come into effect from 1st January, 1946 which was the beginning of afresh
accounting year. On 11th September, 1946 Charandas Haridas acting for himself and his minor
sons and Shantaben executed a memorandum of partial partition in which the above facts were
recited, the document purporting to be a record of what had taken place orally earlier. In the
assessment year 1947-48 and 1948-49, Charandas Haridas claimed that the income should no
longer be treated as income of Hindu undivided family but as separate income of the divided
members. The Income-tax officer declined to treat the income as any but of the Hindu undivided
family, and assessed the income as before. An appeal to the Appellate Assistant Commissioner
was unsuccessful and the matter was taken to the Income-tax Appellate Tribunal. The Tribunal
held that by the document in question, the division, if any, was of the income and not of the assets
from which the income was derived inasmuch as "the agreements of the managing agency with
the managed companies did not undergo any chaoge whatever as a result of the alleged partition."
35. The Tribunal, therefore, held that the arrangement to share the receipts from this source of
income was not binding on the department, if the assets themselves continued to remain joint. A
It further held that the document was "a farce", and did not save the family from assessment as
Hindu undivided family. The following question as directed by the High Court on the application
of Charandas Haridas was referred to the High Court:
"Whether there were materials to justify the finding of the Tribunal that the income in the share of
the com mission agency of the mills was the income of the Hindu undivided family ?"
36. The High Court held that though the finding given by the Appellate Tribunal could not be
construed as a finding that the document was not genuine, the method adopted by the family to
partition the assets was insufficient to bring about the results intended by it. According to the High
Court the Tribunal was right in holding that the document was ineffective and though the income
might have been purported to be divided and might, in fact, have been so divided, the source of
income still remained undivided as belonging to the Hindu undivided family.
37. The High Court accordingly answered the question in the affirmative holding that there were
materials before the Tribunal to enable the Tribunal to reach the conclusion that in so far as these
income-bearing assets were concerned, they still belonged to the Hindu undivided family. The
assessee Charandas Haridas filed an appeal in this Court with special leave granted by this Court.
This Court-allowed the appeal. this Court referred to the following observations of the Privy
Council in Appovier v. Rama Subba Aiyan (supra).
"Nothing can express mere definitely a conversion of the tenancy, and with that conversion a
change of the status of the family quoad this property. The produce is no longer to be brought to
the common chest, as representing the income of an undivided property, but the proceeds are to be
enjoyed in six distinct equal shares by the members of the family, who are thenceforth to become
entitled to those definite shares."
Thereafter this Court proceeded to hold :-
"In our opinion, here there are three different branches of law to notice. There is the law of
partnership, which takes no account of Hindu undivided family. There is also the Hindu Law which
permits a partition of the family and also a partial partition binding upon the family. There is then
the income-tax law, under which a particular income may be treated as the income of the Hindu
undivided family or as the income of the separated members enjoying separate shares by partition.
The fact of a partition in the Hindu Law may have no effect upon the position of partner, in so far
as the law of partnership is concerned, but it has full effect upon the family in so far as the Hindu
Law is concerned. Just as the fact of a karta becoming a partner does not introduce the member of
the undivided family into the partnership, the division of the family does not change the position
of the partner vis-a-vis the other partner or partners. The Income-tax law before the partition takes
note, factually, of the position of the karta, and assessee not him qua partner but as representing
the Hindu undivided family. In doing so, the Income-tax law looks not to the provisions of the
Partnership Act, but to the provisions of Hindu Law. When once the family has disrupted, the
position under the partnership continues as before, but the position under the Hindu Law changes.
There is then no Hindu undivided family as a unit of assessment in point of fact, and the income
which accrues cannot be said to be of a Hindu undivided family.
There is nothing in the Indian Income-tax law or the law of partnership which prevents the
members of a Hindu joint family from dividing any asset. Such division must, of course, be
effective so as to bind the members; but Hindu law does not further require that property must in
every case be partitioned by metes and bounds, if separate enjoyment can otherwise be secured
according to the shares of the members. For an asset of this kind, there was no other mode of
partition open to the parties if they wished to retain the property and yet held it not jointly but in
severalty, and the law does contemplate that a person should do the impossible. Indeed, the result
would have been the same, even if the dividing members had said in so many words that they had
partitioned the assets, because in so far as the firms were concerned, A the step would have been
wholly inconsequential."
This Court further observed :-
"No doubt, there were many modes of partition which might have been adopted; but the question
remains that if the family desired to partition these assets only and no more, could they have acted
in some other manner to achieve the same result ? No answer to the question was attempted; It is,
therefore, manifest that the family took the fullest measure possible for dividing the joint interest
into separate interests. There is no suggestion here that this division was a mere pretence nor has
the Appellate Tribunal given such a finding. The document was fully effective between the
members of the family, and there was actually no Hindu undivided family in respect of these
particular assets."
38. In the case of Kalloomal Tapeswari Prasad (HUF) v. Commissioner of Income-tax, Kanpur,
(1982) 133 I.T.R. 6901982 Indlaw SC 162, this Court observed :-
"Under Hindu Law partition may be either total or partial. A partial partition may be as regards
persons who are members of the family or as regards properties which belong to it. Where there
has been a partition, it is presumed that it was total one both as to the parties and property but when
there is a partition between brothers, there is no presumption that there has been partition between
one of them and his descendents. It is, however, open to a party who alleges that the partition has
been partial either as to persons or as to property, to establish-it. The decision on that question
depends on proof of what the parties intended-whether they intended the partition to be partial
either as to persons or as to properties or as to both.
When there is partial partition as to property, the family ceases to be undivided as regards
properties in respect of which such partition has taken place but continues to be undivided with
regard to the remaining family property. After such partial partition the right of inheritance and
alienation differ according as to property in question belongs to the members in their divided or
undivided capacity. Partition can be brought about, (1) by a father during his life time between
himself and his sons by dividing equally amongst them, (2) by agreement, or (3) by a suit or
arbitration."
39. These two decisions of this Court clearly state that partial Partition under Hindu Law is
permissible.
40. We may mention that in the case of Moti Lal Shyam Sunder v. Commissioner of Income-tax,
U.P a division Bench of the Allahabad High Court also recognised the validity of partial partition.
R.S. Pathak, J. (as his Lordship then was) who spoke for the Bench held for reasons stated in the
judgment that the tribunal was in error in holding that there was no valid partial partition in law
on 1st July, 1961. It may be noted that in the case of Charandas Haridas1960 Indlaw SC 344
(supra) decided by this Court and in the case of Motilal Sham Sunder (supra) decided by the
Allahabad High Court to which we have just referred, all the sons were minor. We have earlier
quoted the relevant passages on the subject from Mulla's Hindu Law and from Mayne's Hindu Law
and Usage.
41. We may now qoute the following observations appearing in 'Mitacshare and Daya-Bhaga-Two
Treatises on the Hindu Law of Inheritance translated by H.T. Colebrooke, Esq.,' in Ch. I, sec. II
(2):-
"When a father wishes to make a partition, he may at his pleasure separate his children from
himself, whether one. two or more sons."
42. In 'History of Dharamshastra' by Shri P.V. Kane (second Edition, 1973) Vol. III it has been
stated:-
"The Manager is called Karta in modern times though the smritis and digests employ words like
Kutumbin (Yaj II. 45), Grhin, Grhapali, Prabhupa Kat. 543) and not Karta. He has special powers
of disposition (by mortgage, sale or gift) of family property in a season of distress (for debts), for
the purposes and benefit of the family (maintenance, education and marriages of members and
other dependents) and particularly for religious purposes (Sradhas and the like). The father has the
same powers as manager and certain other special powers, which no other coparcener has. The
father can separate his sons from himself and also among themselves if he so desires, even if they
do not desire to separate (Yaj. II. 114)".
43. There are observations more or less to the similar effect in the other commentaries on Hindu
Law by other learned authors. We do not, therefore, consider it necessary to refer to the comments
of the other learned authors placed before us in course of the hearing of the appeal.
44. The various commentaries on Hindu Law by the various learned 1 authors go to indicate that
ancient Hindu Law speaks of complete severance of joint family and partition of joint family
properties and does not mention partial partition either with regard to the joint family properties
or with regard to some of the members of the joint family. The right of the father to bring about
the disruption of the joint family properties in exercise of his superior right as father or of his rights
as patria potestas is recongnised in ancient Hindu Law.
45. It is, however, well settled by judicial decisions that partial partition of a joint Hindu family
qua some joint family properties or qua some members of the joint family is permissible and valid
in law. The High Court appears to have accepted this position but the High Court then proceeds to
hold that the proposition laid down by judicial decisions with regard to partial partition will apply
only when partial partition is effected with the consent of the members of the joint family and
cannot be extended to a case where partial partition is sought to be brought about by father in
exercise of his superior rights as father or his right, as patria potestas. On an anxious and careful
consideration of the matter we are unable to agree with the view expressed by the High Court. If
the father in execise of his superior right or of his right. as patria potestas is entitled to bring about
a complete disruption of the joint family and to effect a complete partition of joint family properties
of a Hindu family consisting of himself and his minor sons even against the wishes of the minors
and if partial partition be permissible with the consent of sons when they have all become major,
we see no reason to limit the power or authority of tho father to effect the partition only to a case
where the partition is total.
46. The superior right or the right of patria potestas which a father enjoys is always expected to be
exercised in the best interest of the members of the family and more particularly his minor sons.
The father, undoubtedly, enjoys the right to bring about a complete disruption of the joint family
consisting of himself and his minor sons and to effect a complete partition of The joint family
properties even against the will of the minor sons.
47. It is also now recognised that partial partition of joint family properties is permissible. When
father can bring about a complete partition of joint family properties between himself and his
minor sons even against the will of the minor sons and when partial partition under the Hindu Law
is now accepted and recognised as valid by judicial decisions, we fail to appreciate on what logical
grounds it can be said that the father who can bring about a complete partition of the joint family
properties between himself and his minor sons will not be entitled to effect a partial partition of
joint family properties between himself and his minor sons if the father in the interest of the joint
family and its members feels that partial partition of the properties will be in the best interest of
the joint family and its members including the minor sons. Even if the test of consent is to apply,
the father as the natural guardian of the minor sons will normally be in a position to give such
consent and it cannot be said as a matter of universal application that in all such cases of partition,
partial or otherwise, there is bound to be a conflict of interest between the father and his sons.
48. If the father does not act bona fide in the matter when he effects partition of joint family
properties between himself and his minor sons, whether wholly or partially, the sons on attaining
majority may challenge the partition and ask for appropriate reliefs including a proper partition. In
appropriate cases even during minority, the minor sons through d proper guardian may impeach
the validity of the partition brought about by the father either in entirety of the joint family
properties or only in respect of part thereof, if the partition had been effected by the father to the
detriment of the minor sons and to the prejudice of their interests.
49. We may point out that in the case of Charandas Haridas to which we have earlier referred and
in which this Court recognised the validity of partial partition brought about by the father of some
joint family properties, the sons were all minors. Also in the case of Motilal Shamsunder earlier
quoted, where the Allahabad High Court recognised the validity of partial partition brought about
by the father between himself and his sons, all the sons were minors.
50. The decision of this Court in the case of Charandas Haridas and the observations of this Court
in the case of Kalloomal Tapeswari Prasad1982 Indlaw SC 162 (supra) which we have earlier
quoted, in our opinion, clinch the decision of the question.
51. We must, therefore, hold that partial partition of properties brought about by the father between
himself and his minor sons cannot be said to be invalid under the Hindu Law and must be held to
be valid and binding. We wish to make it clear that this right of the father to effect a partial partition
of joint family properties between himself and his minor sons, whether in exercise of his superior
right as father or in exercise of the right as patria potestas has necessarily to be exercised bona fide
by the father and is subject to the right of the sons to challenge the partition if the partition is not
fair and just.
S. 171 of the Income-tax Act, 1971 provides as follows:
(1) A Hindu family hitherto assessed as undivided shall be deemed for the purposes of this Act to
continue to be a Hindu undivided family, except where and in as far as a finding of partition has
been given under this section in respect of the Hindu undivided family.
(2) Where, at the time of making an assessment under sec. 143 or section 144, it is claimed by or
on behalf of any member of Hindu family assessed as undivided that a partition, whether total or
partial, has taken place among the members of such family, the Income Income-tax officer shall
make an enquiry thereinto after giving notice of the enquiry to all the members of the family.
(3) On the completion of the enquiry, the Income tax officer shall record a finding as to whether
there has been a total or partial partition of the joint family property, and, if there has been such a
partition the date on which it has taken place.
(4) Where a finding of total or partial partition has been recorded by Income tax officer under this
section, and the partition took place during the previous year-
(a) the total income of the joint family in respect of the period up to the date of partition shall be
assessed as if no partition had taken place; and
(b) each member or group of members shall, in addition to any tax for which he or it may be
separately liable and notwithstanding anything contained in cl. (2) of section 10, be jointly and
severally liable for the tax on the income so assessed.
(5) Where a finding of total or partial partition has been recorded by the Income tax officer under
this section, and the partition took place after the expiry of the previous year, the total income of
the previous year of the joint family shall be assessed at as if no partition had taken place; and the
provisions of cl. (b) of sub-s. (4) shall, so far as may be, apply to the case.
(6) Notwithstanding anything contained in this section if the Income-tax officer finds, after
completion of the assessment of a Hindu undivided family that the family has already effected a
partition, whether total or partial the Income-tax officer shall proceed to recover the tax from every
person who was a member of the family before the partition, and every such person shall be jointly
and severally liable for the tax on the income so assessed:
(7) For the purposes of this section, the several liability of any member or group of members
thereunder shall be computed according to the portion of the joint family property allotted to him
or it at the partition, whether total or partial.
(8) The provisions of this section shall, so far as may be apply in relation to the levy and collection
of any penalty, interest, fine or other sum in respect of any period up to the date of the partition,
whether total or partial of a Hindu undivided family as they apply in relation to the levy and
collection of tax in respect of any such period. ....... .......
Explanation: In this section.-
(a) "partition" means-
(i) where the property admits of a physical division, a physical division of the property, but a
physical division of the income without a physical division of the property producing the income
shall not be deemed to be a partition; or
(ii) where the property does not admit of a physical division then such division as the property
admits of, but a mere sevence of status shall not be deemed to be a partition;
(b) "partial partition" means a partition which is partial as regards the persons constituting the
Hindu undivided family, or the properties belonging to the Hindu undivided family, or both.
52. It may be noted that the following further provision was included in the said section as sub-s.
(9) by the Finance (No. 2) Act, 1980 w. e. f. 1st April, 1980 :-
" Notwithstanding anything contained in the foregoing provisions of this section, where a partial
partition has taken place after the 31st day of December, 1978 among the members of a Hindu
undivided family hitherto assessed as undivided:-
(a) no claim that such partial partition has taken place shall be inquired into under sub-s. (2) and
no finding shall be recorded under sub-s. (3) that such partial partition had taken place and any
finding recorded under sub-s. (3) to that effect whether before or after the 18th day of June, 1980
being the date of introduction of the Finance (No 2) Bill 1980, shall be null and void;
(b) such family shall continue to be liable to be assessed under this Act as if no such partial partition
had taken place;
(c) each member or group of members of such family immediately before such partial partition
and the family, shall be jointly and severally liable for any tax, penalty, interest, fine or other sum
payable under this Act by the family in respect of any period whether before or after such partial
partition;
(d) the several liability of any member or group of members aforesaid shall be computed according
to the portion of the joint family property allotted to him or it at such partial partition and the
provisions of this Act shall apply accordingly."
53. This sub-s. (9) was not in existence at the relevant time and has no retrospective operation and
it is of no material consequence in deciding the present case.
54. The aforesaid provisions of the Income-tax Act, as they stood at the material time, clearly
recognise partial partition. The definition of partial partition in explanation (b) makes it clear that
partial partition as regards the persons constituting the Hindu undivided family or as regards
properties belonging to the Hindu undivided family, or both, is recognised.
55. In the present case, the partial partition of the shares belonging to the Hindu undivided family
cannot, therefore, be said to be bad either under the Hindu Law or under the Indian Income tax
Act. We must, therefore, hold that the High Court went wrong in deciding that partial partition of
the joint family properties of the Hindu joint family by the father was invalid and could not be
recognised under the Income-tax Act. The subsequent amendment of s. 171 by the inclusion of
sub-s. (9) does not require any consideration as the said, sub-section was not in existence in the
relevant assessment year and is only operative from 1st April, 1980. The other question which falls
for determination is whether the partition can be said to be bad at the time of the partition there
was no equal division of the shares by the father amongst himself and his minor sons and a part of
the share holding had not been distributed to the father or to the father and mother jointly.
56. We may point out that the A.A.C. has found that at the time of division of the shares, the shares
had been distributed equally taking into consideration the shares which had earlier been distributed
amongst the parties. In our opinion, a partial partition of any joint family property by the father
between himself and his sons does not become invalid on the ground that there has been no equal
distribution amongst the co-sharers. It is expected that the father who seeks to bring about a partial
partition of joint family properties will act bonafide in the interest of the joint family and 13 its
members, bearing in mind in particular the interests of the minor sons. If however, any such partial
partition causes any prejudice to any of the minor sons and if any minor son feels aggrieved by
any such partial partition, he can always challenge the validity of such partial partition in an
appropriate proceeding and the validity of such partition will necessarily have to be adjudicated
upon in the proceeding on a proper consideration of all the facts and circumstances of the case.
Till such partial partition has been held to be invalid by any competent court, the partial partition
must be held to be valid.
57. It is not open to the Income-tax Authorities to consider a partial partition to be invalid on tho
ground that shares have not been equally divided and to refuse to recognise the same. It is
undoubtedly open to the Income-tax officer before recognising the partition to come to a
conclusion on proper enquiry whether tho partition is genuine or not. If the Income-tax officer on
enquiry comes to a finding that the partition is sham or fictious, he will be perfectly within his
right to refuse to recognise the same. In the instant case, there is no finding that the partial partition
is sham or fictitious or that the partial partition is not a genuine one and has not been acted upon.
58. As there is no finding that the partial partition is sham or fictitious or not a genuine one, on
enquiries made by the Income-tax officer, and as the partial partition is otherwise valid under the
Hindu Law, the partial partition has necessarily to be recognised under the provisions of S. 171 of
the Income-tax Act and the assessment must be necessarily made on the basis that there is Partial
partition of the said shares. In the result, the appeal succeeds. The judgment and order of the High
Court are hereby set aside. The partial partition is held to be valid and the Income-tax Officer is
directed to recognise the same and to proceed to make the assessment on the basis that there has
been a partial partition of the said shares between the parties.
59. In the facts and circumstances of this case, we do not propose to make any order as to costs.
Appeal allowed.
Puttarangamma and 2 Ors. v. M.S. Ranganna and 3 Ors., AIR 1968 SC 1018
Hon'ble Judges/Coram: J.C. Shah and V. Ramaswami, JJ.
Case Note:
Family - partition and severance of joint family status - Hindu Law - suit filed by deceased
plaintiff for partition of his share in properties and for granting him separate possession of
same - notice issued by deceased plaintiff to separate from joint family property - Trial
Court found deceased plaintiff was in sound state of mind at time of execution of plaint and
granted decree in appellant's favour - High Court reversing said judgment on grounds of
non execution of plaint by deceased plaintiff and notice issued declared improper - appeal
before Supreme Court - notice given by plaintiff clear and sufficient to show his intention to
be separated from joint family status - both plaint and vakalatnama was countersigned by
responsible advocate who would not have signed if it was executed by person who was
unable to understand content - held, decision of High Court set aside and decision of Trial
Court restored and appellants entitled to decree in terms directed by District Judge.
JUDGEMENT
Ramaswami, J.
1. This appeal is brought by certificate from the judgment of the Mysore High Court dated
December 5, 1960 in R.A. No. 81 of 1956.
2. The appellants and respondent No. 4 are the daughters and legal representatives of Savoy
Ranganna who was the plaintiff in O.S. 34 of 1950-51 instituted in the court of the District Judge,
Mysore. The suit was filed by the deceased plaintiff for partition of his share in the properties
mentioned in the schedule to the plaint and for granting him separate possession of the same.
Respondent No. 1 is the brother's son of the Plaintiff. The relationship of the parties would appear
from the following pedigree :
3. The case of the plaintiff was that he and the defendants lived together as members of a Joint
Hindu family till January 7, 1951, plaintiff being the karta. The plaintiff had no male issue but had
only four daughters, Chikka Rangamma Putta Rangamma, Rangathayamma and Chinnathayamma.
The first 2 daughters were widows. The fourth daughter Chinnathayamma was living with her
husband. Except Chinnathayamma, the other daughters with their families had been living with the
joint family. The plaintiff became ill and entered 'Sharda Nursing Home' for treatment as an in-
patient on January 4, 1951. In order to safeguard the interests of his daughters the plaintiff, Savoy
Ranganna issued a notice on January 8, 1951 to the defendants declaring his unequivocal intention
to separate from them. After the notices were registered at the post office certain well-wishers of
the family intervened and wanted to bring about a settlement. On their advice and request the
plaintiff notified to the post office that he intended to withdraw the registered notices. But as no
agreement could be subsequently reached between the parties the plaintiff instituted the present suit
on January 13, 1951 for partition of his share of the joint family properties. The suit was contested
mainly by respondent no. 1 who alleged that there was no separation of status either because of the
notice of January 8, 1951 or because of the institution of the suit on January 13, 1951. The case of
respondent no. 1 was that Savoy Ranganna was 85 years of age and in a weak state of health and
was not in a position to understand the contents of the plaint or to affix his signature or thumb
impression thereon as well as on the Vakalatnama. As regards the notice of January 8, 1951,
respondent no. 1 asserted that there was no communication of any such notice to him and, in any
case, the notices were withdrawn by Savoy Ranganna unconditionally from the post office. It was
therefore contended that there was no disruption of the joint family at the time of the death of Savoy
Ranganna and the appellants were not entitled to a decree for partition as legal representatives of
Savoy Ranganna. Upon the examination of the evidence adduced in the case the trial court held that
Savoy Ranganna had properly affixed his thumb impression on the plaint and the Vakalatnama and
the presentation of the plaint was valid. The trial court found that Savoy Ranganna was not dead by
the time the plaint was presented. On the question whether Savoy Ranganna was separate in status
the trial court held that the notices dated January 8, 1951 were a clear and unequivocal declaration
of the intention of Savoy Ranganna to become divided in status and there was sufficient
communication of that intention to respondent no. 1 and other members of the family. The trial
court was also of the opinion that at the time of the issue of the notices dated January 8, 1951 and
at the time of execution of the plaint and the Vakalatnama dated January 13, 1951 Savoy Ranganna
was in a sound state of mind and conscious of the consequences of the action he was taking. The
trial court accordingly granted a decree in favour of the appellants. Respondent no. 1 took the matter
in appeal to the Mysore High Court which by its judgment dated December 5, 1960 reversed the
decree of the trial court and allowed the appeal. Hegde, J. one of the members of the Bench held
that the suit could not be said to have been instituted by Savoy Ranganna as it was not proved that
Savoy Ranganna executed the plaint. As regards the validity of the notice Ex. A, and as to whether
it caused any disruption in the joint family status, Hegde, J. did not think it necessary to express
any opinion. The other member of the Bench, Mir. Iqbal Husain, J. held that the joint family of
which the deceased Savoy Ranganna was a member had not been disrupted by the issue of the
notice dated January 8, 1951. The view taken by Mir Iqbal Husain, J. was that there was proof that
the notice was communicated either to respondent no. 1 or other members of the family and, in any
event, the notice had been withdrawn by Savoy Ranganna and so there was no severance of joint
status from the date of the notice.
4. The first question to be considered in this appeal is whether Savoy Ranganna died as a divided
member of the joint family as alleged in the plaint. It is admitted that Savoy Ranganna was very
old, about 85 years of age and was ailing of chronic diarrhoea. He was living in the family house
till January 4, 1951 when he was removed to the Sharda Nursing Home where he died on January
13, 1951 at 3 p.m. According to the case of respondent no. 1 Savoy Ranganna had a paralytic stroke
in 1950 and was completely bed-ridden thereafter and his eyesight was bad for 5 to 6 years prior to
his death. It was alleged in the written statement that Savoy Ranganna was unconscious for some
days prior to his death. The case of respondent no. 1 on this point is disproved by the evidence of
D.W. 6, Dr. Venkata Rao who was in charge of the Sharda Nursing Home of the material dates.
This witness admitted that the complaint of Savoy Ranganna was that he was suffering from chronic
diarrhoea for over five months. He was anemic but he was not suffering from any attack of paralysis.
As regards the condition of Savoy Ranganna on January 8, 1951, the evidence of P.W. 1, Dr.
Subbaramiah is important. This witness is the owner of the Sharda Nursing Home and he has
testified that the notice Ex. A was read over to Savoy Ranganna and after getting it read the latter
affixed his thumb mark thereon. The witness asked Savoy Ranganna whether he was able to
understand the contents of the notice and the latter replied in the affirmative. The witness has
certified on the notice, Ex. A-1 that Savoy Ranganna was conscious when he affixed his left thumb
mark to the notice in his presence. No reason was suggested on behalf of the respondents why the
evidence of this witness should be disbelieved. The trial court was highly impressed by the evidence
of this witness and we see no reason for taking a different view. The case of the appellants is that
respondent no. 1 had knowledge of the notice, Ex. A because he was present in the Nursing Home
on January 8, 1951 and he tried to snatch away the notice from the hands of P.W. 1 but he was
prevented from so doing. P.W. 5, Chinnanna stated in the course of the evidence that after P.W. 1
had signed the certificate in all the three copies, respondent no. 1 and one Halappa came to the ward
and tried to snatch away the notices. The first respondent tried to snatch away the copy Ex. A-1 that
was in the hands of Dr. Subbaramiah and attempted to tear it. Dr. Subbaramiah somehow prevented
respondent no. 1 from taking away Ex. A and handed it over to P.W. 5. The evidence of P.W. 5
with regard to the "snatching incident" is corroborated by Dr. Subbaramiah who stated that after
Savoy Ranganna had executed the notices and he had signed the certificates, one or two persons
came and tried to snatch the document. P.W. 1 is unable to identify the first respondent as one of
the persons who had taken part in the "snatching incident". The circumstance that P.W. 1 was unable
to Identify respondent no. 1 is not very material, because the incident took place about three years
before he gave evidence in the court, but his evidence with regard to the "snatching incident"
strongly corroborates the allegation of P.W. 5 that it was respondent no. 1 who had come into the
Nursing Home and attempted to snatch the notice. There is also another circumstance which
supports the case of the appellants that respondent no. 1 had knowledge of the contents of Ex. A
and of the unequivocal intention of Savoy Ranganna to become divided in status from the joint
family. According to P.W. 5 respondent no. 1 and his wife and mother visited Savoy Ranganna in
the Nursing Home later on and pressed him to withdraw the notices promising that the matter will
be amicably settled. Sowcar T. Thammanna also intervened on their behalf. Thereafter the deceased
plaintiff instructed his grandson P.W. 5 to withdraw the notice. Accordingly P.W. 5 prepared two
applications for the withdrawal and presented them to the postal authorities. The notice, Ex. A
meant for the first respondent and Ex. E meant for the original second defendant were withheld by
the postal authorities. These notices were produced in court by the postal authorities during the
hearing of the case. In our opinion, the evidence of P.W. 5 must be accepted as true, because it is
corroborated by the circumstance that the two notices, Exs. A and E were intercepted in the post
office and did not reach their destination. This circumstance also indicates that though there was no
formal communication of the notice, Ex. A to the first respondent, he had sufficient knowledge of
the contents of that notice and was fully aware of the clear and unequivocal intention of Savoy
Ranganna to become separate from other members of the joint family.
5. It is now a settled doctrine of Hindu Law that a member of a joint Hindu family can bring about
his separation in status by a definite, unequivocal and unilateral declaration of his intention to
separate himself from the family and enjoy his share in severalty. It is not necessary that there
should be an agreement between all the coparceners for the disruption of the joint status. It is
immaterial in such a case whether the other coparceners give their assent to the separation or not.
The jural basis of this doctrine has been expounded by the early writers of Hindu Law. The relevant
portion of the commentary of Vijnaneswara states as follows :
[And thus though the mother is having her menstrual courses (has not lost the capacity to bear
children) and the father has attachment and does not desire a partition, yet by the will (or desire) of
the son a partition of the grandfather's wealth does take place]"
6. Saraswathi Vilasa, placitum 28 states :
[From this it is known that without any speech (or explanation) even by means of a determination
(or resolution) only, partition is effected, just an appointed daughter is constituted by mere intention
without speech.]"
7. Viramitrodaya of Mitra Misra (Ch. II. pl. 23) is to the following effect :
[Here too there is no distinction between a partition during the lifetime of the father or after his
death and partition at the desire of the sons may take place or even by the desire (or at the will) of
a single (coparcener)]."
8. Vyavahara Mayukha of Nilakantabhatta also states :
[Even in the absence of any common (joint family) property, severance does indeed result by the
mere declaration 'I am separate from thee' because severance is a particular state (or condition) of
the mind and the declaration is merely a manifestation of this mental state (or condition).]" (Ch. IV,
s. iii-I).
9. Emphasis is laid on the "budhi visesha" (particular state or condition of the mind) as the decisive
factor in producing a severance in status and the declaration is stated to be merely "abhivyanjika"
or manifestation which might vary according to circumstances. In Suraj Narain v. Iqbal Narain
I.L.R. 35 All. 80. the Judicial Committee made the following categorical statement of the legal
position :
"A definite and unambiguous indication by one member of intention to separate himself and to
enjoy his share in severalty may amount to separation. But to have that effect the intention must be
unequivocal and clearly expressed............ Suraj Narain alleged that he separated a few months later;
there is, however, no writing in support of his allegational nothing to show that at that time he gave
expression to an unambiguous intention on his part to cut himself off from the joint undivided
family."
10. In a later case - Girja Bai v. Sadashiv Dhundiraj I.L.R. 43 Cal. 1031 the Judicial Committee
examined the relevant texts of Hindu Law and referred to the well-marked distinction that exists in
Hindu law between a severance in status so far as the separating member is concerned and a de
facto division into specific shares of the property held until then jointly, and laid down the law as
follows :
"One is a matter of individual decision, the desire on the part of any one member to sever himself
from the joint family and to enjoy his hitherto undefined or unspecified share separately from the
others without being subject to the obligations which arise from the joint status; whilst the other is
the natural resultant from his decision, the division and separation of his share which may be arrived
at either by private agreement among the parties, or on failure of that, by the intervention of the
Court. Once the decision has been unequivocally expressed and clearly intimated to his co-sharers,
his right to his right to have his shares allocated separately from has a title is unimpeachable; neither
the co-sharers can question it nor can the Court examine his conscience to find out whether his
reasons for separation were wellfounded or sufficient; the Court has simply to give effect to his
right to have his share allocated separately from the others."
11. In Syed Kasam v. Jarawar Singh I.L.R. 50 Cal. 84, Viscount Cave, in delivering the judgment
of the Judicial Committee, observed :
"It is settled law that in the case of a joint Hindu family subject to the law of the Mitakshara, a
severance of estate is effected by an unequivocal declaration on the part of one of the joint holders
of his intention to hold his share separately, even though no actual division takes place : and the
commencement of a suit for partition has been held to be sufficient to effect a severance in interest
even before decree."
12. These authorities were quoted with approval by this Court in Addagada Raghavamma v.
Addagada Chenchamma, MANU/SC/0250/1963 : [1964]2SCR933 , and it was held that a member
of a joint Hindu family seeking to separate himself from others will have to make known his
intention to other members of his family from whom he seeks to separate. The correct legal position
therefore is that in a case of a joint Hindu family subject to Mitakshara law, severance of status is
effected by an unequivocal declaration on the part of one of the jointholders of his intention to hold
the share separately. It is, however, necessary that the member of the joint Hindu family seeking to
separate himself must make known his intention to other members of the family from whom he
seeks to separate. The process of communication may, however, vary in the circumstances of each
particular case. It is not necessary that there should be a formal despatch to or receipt by other
members of the family of the communication announcing the intention to divide on the part of one
member of the joint family. The proof of such a despatch or receipt of the communication is not
essential, nor its absence fatal to the severance of the status. It is, of course, necessary that the
declaration to be effective should reach the person or persons affected by some process appropriate
to the given situation and circumstances of the particular case. Applying this principle to the facts
found in the present case, we are of opinion that there was a definite and unequivocal declaration
of his intention to separate on the part of Savoy Ranganna and that intention was conveyed to
respondent no. 1 and other members of the joint family and respondent no. 1 had full knowledge of
the intention of Savoy Ranganna. It follows therefore that there was a division of status of Savoy
Ranganna from the joint Hindu family with effect from January 8, 1951 which was the date of the
notice.
13. It was, however, maintained on behalf of the respondents that on January 10, 1951 Savoy
Ranganna had decided to withdraw the two notices, Exs. A & E and he instructed the postal
authorities not to forward the notices to respondent no. 1 and other members of the joint family. It
was contended that there could be no severance of the joint family after Savoy Ranganna had
decided to withdraw the notices. In our opinion, there is no warrant for this argument. As we have
already stated, there was a unilateral declaration of an intention by Savoy Ranganna to divide from
the joint family and there was sufficient communication of this intention to the other coparceners
and therefore in law there was in consequence a disruption or division of the status of the joint
family with effect from January 8, 1951. When once a communication of the intention is made
which has resulted in the severance of the joint family status it was not thereafter open to Savoy
Ranganna to nullify its effect so as to restore the family to its original joint status. If the intention
of Savoy Ranganna had stood alone without giving rise to any legal effect, it could, of course, be
withdrawn by Savoy Ranganna, but having communicated the intention, the divided status of the
Hindu joint family had already come into existence and the legal consequences had taken effect. It
was not, therefore, possible for Savoy Ranganna to get back to the old position by mere revocation
of the intention. It is, of course, possible for the members of the family by a subsequent agreement
to reunite, but the mere withdrawal of the unilateral declaration of the intention to separate which
already had resulted in the division in status cannot amount to an agreement to reunite. It should
also be stated that the question whether there was a subsequent agreement between the members to
reunite is a question of fact to be proved as such. In the present case, there is no allegation in the
written statement nor is there any evidence on the part of the respondents that there was any such
agreement to reunite after January 8, 1951. The view that we have expressed is borne out by the
decision of the Madras High Court in Kurapati Radhakrishna v. Kurapati Satyanarayana
MANU/TN/0241/1948 : (1948)2MLJ331 in which there was a suit for declaration that the sales in
respect of certain family properties did not bind the plaintiff and for partition of his share and
possession thereof and the plaint referred to an earlier suit for partition instituted by the 2nd
defendant in the later suit. It was alleged in that suit that 'the plaintiff being unwilling to remain
with the defendants has decided to become divided and he has filed this suit for separation of his
one-fifth share in the assets remaining after discharging the family debts separated and for recovery
of possession of the same'. All the defendants in that suit were served with the summons and on the
death of the 1st defendant therein after the settlement of issues, the plaintiff in that action made the
following endorsement on the plaint : "As the 1st defendant has died and as the plaintiff had to
manage the family, the plaintiff hereby revokes the intention to divide expressed in the plaint and
agreeing to remain as a joint family member, he withdraws the suit." It was held by the Madras
High Court that a division in status had already been brought about by the plaint in the suit and it
was not open to the plaintiff to revoke or withdraw the unambiguous intention to separate contained
in the plaint so as to restore the joint status and as such the members should be treated as divided
members for the purpose of working out their respective rights.
14. We proceed to consider the next question arising in this appeal whether the plaint filed on
January 13, 1951 was validly executed by Savoy Ranganna and whether he had affixed his thumb
impression thereon after understanding its contents. The case of the appellants is that Sri M. S.
Ranganathan prepared the plaint and had gone to the Sharda Nursing Home at about 9-30 or 10
a.m. on January 13, 1951. Sri Ranganathan wrote out the plaint which was in English and translated
it to Savoy Ranganna who approved the same. P.W. 2, the clerk of Sri Ranganathan has deposed to
this effect. He took the ink-pad and affixed the left thumb impression of Savoy Ranganna on the
plaint and also on the Vakalatnama. There is the attestation of Sri M. S. Ranganathan on the plaint
and on the Vakalatnama. The papers were handed over to P.W. 2 who after purchasing the necessary
court-fee stamps filed the plaint and the Vakalatnama in the court at about 11.30 a.m. or 12 noon
on the same day. The evidence of P.W. 2 is corroborated by P.W. 5 Chinnanna. Counsel on behalf
of the respondents, however, criticised the evidence of P.W. 2 on the ground that the doctor, D.W.
6 had said that the mental condition of the patient was bad and he was not able to understand things
when he examined him on the morning of January 13, 1951. D.W. 6 deposed that he examined
Savoy Ranganna during his usual rounds on January 13, 1951 between 8 and 9 a.m. and found "his
pulse imperceptible and the sounds of the heart feeble". On the question as to whether Savoy
Ranganna was sufficiently conscious to execute the plaint and the Vakalatnama, the trial court has
accepted the evidence of P.W. 2, Keshavaiah in preference to that of D.W. 6. We see no reason for
differing from the estimate of the trial court with regard to the evidence of P.W. 2. The trial court
has pointed out that it is difficult to accept the evidence of D.W. 6 that Savoy Ranganna was not
conscious on the morning of January 13, 1951. In cross-examination D.W. 6 admitted that on the
night of January 12, 1951 Savoy Ranganna was conscious. He further admitted that on January 13,
1951 he prescribed the same medicines to Savoy Ranganna as he had prescribed on January 12,
1951. There is no note of the necessary data in the case sheet, Ex. I to suggest that Savoy Ranganna
was not conscious on January 13, 1951. It is therefore not unreasonable assume that the condition
of Savoy Ranganna was the same on January 13, 1951 as on January 12, 1951 and there was no
perceptible change noticeable in his condition between the two dates. In these circumstances it is
not possible to accept the evidence of D.W. 6 that Savoy Ranganna was unconscious on the morning
of January 13, 1951. It was pointed out on behalf of the respondents that D.W. 7, Miss Arnold has
also given evidence that the condition of Savoy Ranganna became worse day by day and on the last
day his condition was very bad and he could not understand much, nor could he respond to her
calls. The trial court was not impressed with the evidence of this witness. In our opinion, her
evidence suffers from the same infirmity as of D.W. 6, because the case sheet, Ex. I does not
corroborate her evidence. It is also difficult to believe that D.W. 7 could remember the details of
Savoy Ranganna's case after a lapse of three years without the help of any written case sheet. There
is also an important discrepancy in the evidence of D.W. 7. She said that on January 13, 1951 she
called D.W. 6 at 12 noon since the condition of the patient was very bad, but D.W. 6 has said that
he did not visit Savoy Ranganna after 8 or 9 a.m. on that date. Comment was made by Counsel on
behalf of the respondents that Sri Ranganathan was not examined as a witness to prove that he had
prepared the plaint and Savoy Ranganna had affixed his thumb impression in his presence. In our
opinion, the omission of Sri Ranganathan to give evidence in this case is unfortunate. It would have
been proper conduct on his part if he had returned the brief of the appellants and given evidence in
the case as to the execution of the plaint and the Vakalatnama. But in spite of this circumstance we
consider that the evidence of the appellants on this aspect of the case must be accepted as true. It is
necessary to notice that the plaint and the Vakalatnama are both counter-signed by Sri Ranganathan
- a responsible Advocate - and it is not likely that he would subscribe his signatures to these
documents if they had been executed by a person who was unable to understand the contents
thereof. As we have already said, it is unfortunate that the Advocate Sri Ranganathan has not been
examined as a witness, but in spite of this omission we are satisfied that the evidence adduced in
the case has established that Savoy Ranganna validly executed the plaint and the Vakalatnama and
that he was conscious and was in full possession of his mental faculties at the time of the execution
of these two documents. It follows therefore that the appellants and respondent no. 4 who are the
daughters and legal representatives of Savoy Ranganna are entitled to a decree in the terms granted
by the District Judge of Mysore.
15. For the reasons expressed, we hold that this appeal should be allowed, the judgment of the
Mysore High Court dated December 5, 1960 in R.A. no. 81 of 1956 should be set aside and that of
the District Judge, Mysore dated October 31, 1955 in O.S. no. 34 of 1950-51 should be restored.
The appeal is accordingly allowed with costs.
16. Appeal allowed.

Kalyani (Dead) by Lrs. v. Narayanan and Ors., AIR 1980 SC 1173
Hon'ble Judges/Coram: A.N. Sen, D.A. Desai and V.D. Tulzapurkar, JJ.
Mayne's Hindu Law and Usage, 11th Edn; Mulla's Hindu Law, 14th Edn.
Prior History:
From the Judgment and Decree dated December 21, 1965 of the Kerala High Court in A.S.
No. 403 of 1961--
Case Note:
Family - partition - Transfer of Property Act, 1882 - whether wife-wise partition can be
effected in absence of customary law under Mitakshara - under Hindu Law there could not
be wife-wise partition of family - wife constituting branch with her children of family is
concept of foreign origin.
JUDGEMENT
D.A. Desai, J.
1. On a certificate granted by the Full Bench of the High Court of Kerala, original plaintiff, a Hindu
widow who was seeking partition of a share to which her deceased husband was entitled, having
lost in both the Courts, has filed this appeal. The High Court granted the certificate under Article
133(1)(c) of the Constitution as in its opinion the following substantial questions of law arise from
the judgment rendered by it:
1. Whether under the Mitakshara Law the parties are governed by customary law, and, in the
absence of any rule of customary law on the point in question, by Mitakshara Law property can be
divided, albeit by a family settlement, between two artificial units of a joint family, one comprising
the sons of a father by his first wife, the first wife and his step mother, and the other comprising his
son by his second wife and the second wife so as to constitute each unit into a coparcenary with
rights of survivorship between its members; and
2. Whether the use of the word 'tavazhi' (in any case a misnomer) in describing the two units in the
will, Ext. P-l left by the father and held to be the basis of the family settlement, is sufficient in the
circumstances, to establish an intention that the members of each unit were to take the property as
coparceners and not as tenants-in-common, the grouping into units being only for convenient
enjoyment?
2. The factual background from which, according to the High Court the aforementioned two
questions emerge for consideration of this Court may be stated.
3. One Karappan, son of Chulliparambil Krishnan, had two wives Nani and Ponni. Defendant 1
Krishnan, defendant 2 Shankaran, one Raman, husband of plaintiff Kallyani, and deceased
Madhavan, husband of defendant 3 and father of defendants 4, 5 and 6, were his sons by first wife
Nani, and one Kesavan was his son by the second wife Ponni. He had six daughters, four by the
first wife and two by the second wife. One Valli was the second wife of his father and she had three
daughters. Karappan and his family are Ezhavas and in the matter of inheritance, succession and on
the question of personal law they were governed essentially by customary law and in the absence
of any specific custom they are governed by the Hindu Mitakshara Law. Karappan executed a
registered deed variously described as a will or a deed of partition or evidencing family
arrangement, Ext. P-l dated January 25, 1910, the salient features of which may be reproduced.
After narrating his near relations including his two wives, male and female children born to each
and his father's second wife and her children, the following recitals are worthy of note:
There are as belonging to me now properties to the value of Rs. 8000/- mentioned in the sub-joined
schedules A and B as my tarwad properties and also my self-acquired properties and properties to
the value of Rs. 200/- of the C schedule which is set apart as common properties.
Since I am seriously ill and in order that there may not arise any dispute in future in respect of
properties belonging to me, I have resolved today the following with regard to the course of
enjoyment of the said properties after my death.
I myself shall have the full powers of disposition over all the properties described in A, B and C
schedules during my life time and after my death, out of the properties to the value of Rs. 8000/-,
Rs. 1300/- worth of properties shall vest in each of my male issues, Rs. 300/- in my first wife, Rs.
1000/- in my second wife since she is sick and Rs. 200/-in my father's second wife.
On the above basis I have set apart to be vested in them after my death Rs. 5200/- worth of properties
to the first tavazhi male issues, Rs. 300/- to my first wife and Rs. 200/- to my father's wife, altogether
properties worth Rs. 5700/- scheduled to A schedule; Rs. 1300/- worth of properties comprising
items 1 to 4 and 6 to 12 of B schedule to the second tavazhi, inclusive of an owelty of Rs. 227 as,
8 ps. 5 decided to be paid by the first tavazhi to the second tavazhi, and item 5 of B schedule worth
Rs. 1000/-to my second wife.
... ... ...
And that 1/5th share of assessment of C schedule property shall be paid annually by Kesavan in the
Amsom and receipt obtained.
It is also resolved that each tavazhi shall meet the travelling expenses of female issues and maintain
properly the women who return on the death of their husbands, that both tavazhis shall equally
maintain the children of my aunt and my sister and that since C schedule properties are partitioned
now, all my male issues shall have equal rights over the property after my death.
4. This is a registered deed. Soon thereafter, in February 1910, Karappan died. Raman, the husband
of the plaintiff, the third son of the first wife, died on February 20, 1936. Plaintiff widow of Raman
sued for partition and separate possession of her undivided 1 /4 share in properties set out in A, B
and C schedules to the plaint. It is necessary to clarify here that there) were A, B and C schedules
annexed to Ext. P-l which, for clarity of understanding, would be referred to as the Will of the
deceased though it would be presently pointed out that it is ineffective as a Will. Schedules A and
B to Ext. P-l specify certain properties. Properties set out in schedule B to Ext. P-l except item No.
5 were awarded to Kesavan, the son by the second wife, and item No. 5 to the second wife.
Properties in schedule A to Ext. P-l subject to adjustment pointed out in Ext. P-l were given to the
first wife and her sons. Properties set out in schedule C to Ext. P-l were kept undivided and were
the subject-matter of another suit filed, by the present plaintiff which has ended in a decree in her
favour and which decree has become final. On the other hand, properties set out in schedule A to
the plaint are the very properties which are shown in schedule A to Ext. P-l. In respect of properties
set out in the schedule B to the plaint it is alleged that they were acquired by the joint labour of
defendants 1 and 2, deceased Raman and Madhavan, and it is equally true of properties set out in
schedule C to the plaint but they were separately set out because they stood in the name oil the wife
of defendant 1. Plaintiff, however, claimed 1/4 of her share in all the properties set out in schedules
A, B and C to the plaint.
5. The suit was principally resisted by defendant 1 as per his written statement dated July 12, 1958.
It was in terms contended that the properties dealt with by Ext. P-l were the joint family properties
of Karappan and his sons and that Karappan was not entitled to and had no authority in law to
execute a Will in respect of the properties. There is an averment which may be extracted. It reads:
Even though Karappan has no right to execute the Will accordingly, what Karappan actually did
was that he partitioned the properties between the two tavazhies in order to avoid future quarrel
between the two wives and their children. As a father he has got the right to partition his properties
according to the custom of the community and according to the Mitakshara law, that Will would be
valid as a deed of partition and accordingly accepting the same later, properties had been taken
possession by the two tavazhies separately. Even though the execution of such a deed was against
procedure, it was in order to honour the wishes of deceased Karappan that the same was acted upon.
In respect of plaint B schedule properties, the contention was that it was acquired by the private
income of the first defendant and that schedule 'C' properties belonged to the wife of defendant 1
and that plaintiff has no share in it. It was also contended that as the four sons by the first wife of
Karappan constituted a tavazhi, it has all the incidents of a coparcenary and, therefore, succession
was governed by survivorship and hence the plaintiff has no share in schedule A properties.
6. The trial Court framed as many as 12 issues. The important findings of the Trial Court are that
Ext. P-l is neither effective as a Will nor as a deed of partition. Without specifically so saying that
Ext. P-l would be effective as a family arrangement, it was held that Ext. P-l had the effect of
constituting a coparcenary of four brothers, sons of first wife of Karappan and that it was their joint
family property and they did not hold as tenants-in-common but as joint tenants and were governed
by survivorship in the matter of succession. The contention that even in such a situation the widow
would be entitled to her share because of a customary right was negatived. In respect of B and C
schedule properties it was held that they belonged exclusively to defendant 1 and his wife and
plaintiff cannot claim a share in them. Consistent with these findings, the plaintiff's suit was
dismissed. A Full Bench of the Kerala High Court heard the first appeal preferred by the plaintiff.
The High Court substantially agreed with the findings of the trial Court and specifically held that
Ext. P-l furnished important evidence of a family arrangement accepted and acted upon by all the
parties affected thereby. It was held that as family arrangement it is binding and it indicated that the
division was per branches, therefore, the four sons by the first wife of Karappan divided as one
branch and one son alone by the second wife separated as a different branch and as four sons by the
first wife constituted a joint family, succession would be governed by survivorship and the plaintiff
is not entitled to claim any share in schedule A properties. On the question of acquisition of schedule
B and C properties, the finding of the trial Court was confirmed.
7. It may be mentioned that plaintiff had filed another suit for partition of properties set out in C
Schedule to Ext. P-l and that suit was decreed in plaintiff's favour and that decree has become final.
8. Two questions of general importance framed by the High Court are rather involved and confusing
and do not pinpoint the attention on questions of law emerging from the judgment of the High
Court.
9. The first question that needs to be answered is whether Ext. P-l styled, as a Will by the deceased
Karappan would be effective as a Will. If by Ext. P-l deceased Karappan attempted to make a Will
of the ancestral property in his hand in which his sons had acquired interest by birth, obviously he
had no power to make a Will in respect of such property. Ext. P-l does not purport to devise by Will
the individual share of testator Karappan in the joint family property but he attempts to make a will
of all the properties, ancestral and self-acquired and even to dispose of property in which his sons
had interest by birth, by will. He has not claimed any share in the property but claimed a right to
deal with ancestral property as he desired. In Ext. P-l itself he describes properties set out in
schedules A and B annexed to Ext. P-l as his tarvad properties. Expression 'tarvad' in
Marumakkattayam Law is the name given to the joint family consisting of males and females, all
descended in the female line from a common ancestress. A tarvad may consist of two or more
branches known as thavazhies; each tavazhi or branch consisting of one of the female members of
the tarvad and her decendents in the female line (see Mayne's Hindu Law and Usage, 11th Edn, pp.
792-93.) Thus when property is described as tarvad property in a broad sense it is admitted to be
joint family property. This also becomes clear from the recital in Ext. P-l that properties in A and
B schedules were tarvad properties and property in C schedule were claimed by him as his self-
acquired properties and they were to be kept joint and were not sought to be dealt with by Ext. P-l.
Therefore, to the extent Ext. P-l purports to dispose of ancestral properties by will it would be
ineffective as a will as testator Karappan had no power or authority to dispose of by will ancestral
properties in his hand. And as he has not attempted to dispose of his undivided share in the ancestral
properties by Ext. P-l it is not necessary here to examine the question whether Mitakshara law as
administered in Tamil Nadu and Kerala enables an undivided coparcener to dispose of his share in
joint family property by will. Therefore, Ext. P-l is not effective as a will and the respondents did
not invite us to affirm their rights under Ext. P-l as if it is a binding will.
10. The next stage in the unfolding of the case is whether Ext. P-l is effective as a partition. Partition
is a word of technical import in Hindu law. Partition in one sense is a severance of joint status and
coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this
narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of
his intention by a member of a joint family to separate himself from the family and enjoy his share
in severally. Such an unequivocal intention to separate brings about a disruption of joint family
status, at any rate, in respect of separating member or members and thereby puts an end to the
coparcenary with right of survivorship and such separated member holds from the time of disruption
of joint family as tenant-in-common. Such partition has an impact on devolution of shares of such
members. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is
accompanied or followed by division of properties by metes and bounds covers both a division of
right and division of property (see Approviar v. Rama Subha Aiyar (1886) 11 M. I. A. 75 quoted
with approval in Smt. Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao
Nimbalkar and Ors. MANU/SC/0575/1979 : [1980]1SCR161 . A disruption of joint family status
by a definite and unequivocal indication to separate implies separation in interest and in right,
although not immediately followed by a de facto actual division of the subject-matter. This may at
any time, be claimed by virtue of the separate right (see Girja Bai v. Sadashiv 41 I A 151. A physical
and actual division of property by metes and bounds follows from disruption of status and would
be termed partition in a broader sense.
11. There was some controversy whether a Hindu father governed by Mitakshara law has a right to
partition ancestral properties without the consent of his sons. After referring to Mitakshara, I, ii, 2,
Mayne in 'Hindu Law & Usage', 11th Edn. p. 547, states that a Hindu father under the Mitakshara
Law can effect a partition between himself and his sons as also between his sons inter se without
their consent and that not only can he partition the property acquired by himself but also the
ancestral property. The relevant text may be extracted:
The father has power to effect a division not only between himself and his sons but also between
the sons inter se. The power extends not only to effecting a division by metes and bounds but also
to a division of status.
Similarly, in Mulla's Hindu Law, 14th Edn., p. 410 (para 323), it is stated that the father of a joint
family has the power to divide the family property at any moment during his life time provided he
gives his sons equal shares with himself, and if he does so, the effect in law is not only a separation
of the father from the sons, but a separation of the sons inter se. The consent of the sons is not
necessary for the exercise of that power. It, therefore, undoubtedly appears that Hindu father joint
with his sons governed by Mitakshara law has the power to partition the joint family property at
any moment during his life time.
12. Mr. Krishnamoorty lyer urged that even though undoubtedly a Hindu father joint with his sons
and governed by Mitakshara law has the power to partition the joint family property, this power
enables him to partition the property by metes and bounds but he has no power merely to disrupt
the joint family status unaccompanied by division of property by metes and bounds. The limited
question that needs answer in this case is whether a Hindu father joint with his sons governed by
Mitakshara law has the power to disrupt the joint family status being a first step in the stage of
dividing the property by metes and bounds. The wider question whether a coparcener of a
coparcenary governed by Mitakshara law brings about a disruption of joint family status by definite
and unequivocal indication of his intention to separate himself from the family would constitute
disruption of status qua the non-separating members need not be examined. A Hindu father joint
with his sons and governed by Mitakshara law in contradistinction to other manager of a Hindu
undivided family or an ordinary coparcener enjoys the larger power to impose a partition on his
sons with himself as well as amongst his sons inter se without their consent and this larger power
to divide the property by metes and bounds and to allocate the shares to each of his sons and to
himself would certainly comprehend within its sweep the initial step, viz., to disrupt the joint family
status which must either precede or be simultaneously taken with partition of property by metes and
bounds. This view taken in Kandaswami v. Doraiswami Ayyar I.L.R. [1880] Mad. 317 does not
appear to have been departed from. Further, the text from Mayne's book extracted in the preceding
paragraph shows that the weight of authority is against the proposition canvassed for by Mr. Iyer.
It does, therefore, appear that a Hindu father governed by Mitakshara law has power to partition the
joint family property belonging to the joint family consisting of himself and his sons and that this
power comprehends the power to disrupt joint family status.
13. The question is, has Karappan as father exercised his power to partition the joint family property
by Ext. P-l ? Even though the father has a right to make a partition of the joint family property in
his hand, he has no right to make a partition by will of joint family property amongst various
members of the family except, of course, if it could be made with their consent (see Brijraj Singh
v. Sheodan Singh 40 I A 161. Whether it is effective as family arrangement will be presently
examined. Therefore, if by Ext. P-l Karappan attempted to make a partition of the property by his
will, Ext. P-l would be ineffective as a partition. By Ext. P-l Karappan does not divide his property
by metes and bounds vesting the share of each in presenti in each of his sons.
14. One thing that is not in dispute is that Karappan did not intend Ext. P-l to be effective from the
date on which it was executed. In his own words he states that he was seriously ill and as he would
like to avoid a dispute in future in respect of his properties and, therefore, he resolved that his
property shall be enjoyed after his death in the manner stated in Ext. P-l. He reserved to himself the
full powers of disposition over all the properties more particularly described in the various
schedules annexed to Ext. P-l during his life time and whatever directions were given in Ext. P-l
were to be effective only after his death. At two places in terms he stated that the dispositions made
by Ext. P-l were to be effective after his death. It is, therefore, inescapable that Ext. P-l was not to
be effective as a partition in broader sense, namely, dividing property by metes and bounds from
the date on which it was executed. It was to be effective from a future date and that future uncertain
event was the death of Karappan and that during the time he would remain alive he would deal with
the properties at his sweet will. Further, there was no effective partition by metes and bounds by
Ext. P-l though the shares of sons were specified as also the provision for female members was
made. If intention of the testator is to be gathered from the language of Ext. P-l Karappan intended
it to be a will to be effective after his death. He never intended it to be a partition in presenti.
Therefore, Ext.P-1 cannot be effective as a deed of partition in the broader sense, i.e. partition by
metes and bounds.
15. What then is the effective of Ext. P-l on the joint family of which Karappan was father-cum-
manager ? The respondents contend that it is a family arrangement providing for carving out
branchwise (shakha per wife) separation of interest in the joint family properties and as it was
unreservedly accepted by all affected thereby after the death of Karappan, it is binding on all.
Appellant contends that Ext.P-1 had the effect of disrupting the joint family status and from that
date members of the joint family entitled to their shares in the joint family property, held as tenants-
in-common and not as joint tenant with the result that inheritance by survivorship, a special feature
of a Hindu coparcenary, would be displaced by Hindu law of succession, the property going to the
heirs recognised by law.
16. Defendant 1 who contested the suit in terms stated that Ext.P-1 was not effective as a will. He
than stated that Ext.P-1 purports to partition the property between the two tavazhies represented by
Karappan's two wives and their respective male offspring. It may, however, be stated that nowhere
in the written statement he has put forth the contention that Ext.P-1 evidences a family arrangement
assented to by all affected thereby. That case appears to have been made out by the High Court for
the first time and since the plaintiff has been non-suited on the finding that Ext.P-1 was a family
arrangement which provided for a coparcenary of four sons of the first wife of Karappan, retaining
inheritance by survivorship amongst the four members it is necessary to examine the contention
whether Ext.P-1 provides for a family arrangement assented to by all concerned. An ineffective will
sometimes though not always, if otherwise consented by all adult members, may be effective as a
family arrangement but as the father of a joint Hindu family has no power to impose a family
arrangement under the guise of exercising the power of partition, the power which undoubtedly he
has but which he has failed to effectively exercise, cannot in the absence of consent of all male
members bind them as a family arrangement. What constitutes family arrangement has been fully
examined by this Court in M.N. Aryamurthy and Anr. v. M.D. Subbaraya Setty (dead) through l.r.
and Ors. MANU/SC/0479/1971 : AIR1972SC1279 . Broadly stated, it is that there must be an
agreement amongst the various members of the family intended to be generally and reasonably for
the benefit of the family and secondly the agreement should be with the object either of
compromising doubtful or disputed rights or for preserving the family property or the place and
(security of the family. Both these ingredients appear to be absent in this case. In Brijraj Singh's
case (supra) a father purported to make a will in which he recorded a partition of the joint family
property amongst his three sons. He did not take a share for himself and simultaneously gave double
share to his eldest son. There were usual recitals of partition and allotment of shares and it was
further stated that in anticipation of execution of the deed various sharers were put in possession of
property allotted to each of them. This was done two months prior to the execution of the so-called
will. The document was held ineffective as a will but on evidence it was found that all concerned
had acquiesced in the arrangement evidenced by the deed and the deed was intended to operate
from the date of its execution and, therefore, it evidenced a family arrangement contemporaneously
made and acted upon by all the parties and hence binding. Similarly in Lakshmi Chand v. Anandi
53 I.A. 123 two brothers having no male issue and constituting a joint Hindu family governed by
Mitakshara, signed a document, described therein as an agreement by way of will. The document
provided in effect that if either party died without male issue, his widow should take a life interest
in a moiety of the whole estate and that if both the parties died without male issue, the daughters of
each, or their male issue, should divide the father's share. The document was registered. A few days
after its execution one brother died, and his widow was entered as owner of a moiety of the estate.
Subsequently the other brother sued for a declaration that the document was null and void. Privy
Council held that the document could not operate as will but that as a co-sharer in a Mitakshara
joint family with the consent of all his co-sharers he could deal with the share to which he would
be entitled on a partition and was binding as family arrangement. To be effective as a family
arrangement the deed must be one intended to operate from the date of its execution, a feature
wanting in Ext.P-1, and it must be assented to and acquiesced in and acted upon by all affected
thereby. At the time of execution of Ext.P-1 there is no evidence as to who were the adult members
of the family other than Karappan who consented to the alleged family arrangement. One thing,
however, may be pointed out that defendant 1 gave his age as 87 years on December 29, 1959,
when his evidence commenced. Presumably he must have been born in 1872. But there is no
evidence about the age of other children of Karappan. The only evidence as to the consent of the
male members is that after the death of Karappan all male members acted according to the wishes
of Karappan as disclosed and ordained in Ext.P-1. Assuming it to be so, Ext.P-1 was to operate
after the death of Karappan and not from the date of execution. The High Court after referring to
Brijraj Singh's case (supra) overlooked the fact that in accepting the deed before it, the Judicial
Committee was impressed by the fact that it was intended to speak from the date on which it was
written and not future date, viz., death of the writer. Ext.P-1 in terms reserves to Karappan his right
to deal with the property at his sweet will and was to be operative after his death. The High Court
completely overlooked this material difference. Assuming that Ext.P-1 was to be treated as family
arrangement after the death of Karappan, the absence of any evidence of agreement amongst family
members entitled to a share, to the terms of Ext.P-1 when it was executed, the absence of any dispute
at or about the time Ext.P-1 was executed amongst the members of the family sought to be settled
by Ext.P-1; and the absence of evidence that arrangement was necessary for the security of the
family or property would wholly negative the contention that Ext. P-l would furnish evidence of
family arrangement. We have grave doubt whether a Hindu father can impose family arrangement
sans direct evidence of consent of each of his sons, to be effective after his death. Therefore, Ext.P-
1 does not furnish evidence of family arrangement.
17. Now, if Ext.P-1 cannot be effective as a deed of partition inasmuch as it did not result in division
of property by metes and bounds, its effect on continued joint family status may be examined. If it
disrupted joint family status by its very execution, there was thereafter no question of directing any
family arrangement to be effective from a future date as per its terms and even though it may spell
out a family arrangement what effect the disruption of joint family status would have on the mode
of succession has to be ascertained.
18. One thing is crystal clear that Ext. P-l is not a deed of partition in the sense it does not purport
to divide the property amongst various coparceners by metes and bounds. However, in Hindu law
qua joint family and joint family property the word 'partition' is understood in a special sense. If
severance of joint status is brought about by a deed, a writing or an unequivocal declaration of
intention to bring about such disruption, qua the joint family, it constitutes partition, (see
Raghavamma v. Chenchamma) MANU/SC/0250/1963 : [1964]2SCR933 . To constitute a partition
all that is necessary is a definite and unequivocal indication of intention by a member of a joint
family to separate himself from the family. What form such intimation, indication or representation
of such interest should take would depend upon the circumstances of each case. A further
requirement is that this unequivocal indication of intention to separate must be to the knowledge of
the persons affected by such declaration. A review of the decisions shows that this intention to
separate may be manifested in diverse ways. It may be by notice or by filing a suit. Undoubtedly,
indication or intimation must be to members of the joint family likely to be affected by such a
declaration.
19. Has not Ext.P-1 the effect of bringing about a disruption of joint family headed by Karappan
and consisting of himself and his sons? The fact situation is that in Ext. P-l Karappan specified the
share of each of his sons, the property allotted on share being valued at Rs. 1300/- each of the four
by the first wife and one by the second wife, and vesting the share so specified in each of his sons.
He also specified value of the property allotted to his first wife, to his second wife and to the second
wife of his father. In the process he found that something more was given to the sons of his first
wife and in order to restore the equilibrium of treating his sons equally, he directed that owelty to
the tune of Rs. 227/- and odd be paid by the sons of the first wife to the sons of his second wife.
This was with a view to correcting the inequality in division of shares. He also states that there will
be two branches. He refers to them as tavazhies and himself and his family as tarvad. Tarvad is akin
to joint family and tavazhi is a branch of the family. The High Court, however, treated the use of
the words 'tarvad' and 'tavazhi' and 'Karnavaran' to be inappropriate and hence inconsequential.
Similarly, the High Court found specification of share of each of the male child as not indicative of
a partition in the sense of disruption of joint family status.
20. Partition can be partial qua person and property but a partition which follows disruption of a
joint family status will be amongst those who are entitled to a share on partition. On death of
Karappan, Kesavan, the son of the second wife obtained a physical partition of the property, took
his own share and left the family. There was first a disruption of the joint family by specifying the
shares in Ext.P-1. Till disruption of joint family status takes place no coparcener can claim what is
his exact share in coparcenary property. It is liable to increase and decrease depending upon the
addition to the number or departure of a male member and inheritance by survivorship. But once a
disruption of joint family status takes place, coparceners cease to hold the property as joint tenants
but they hold as tenants-in-common. Looking to the terms of Ext.P-1 there was a disruption of joint
family status, the shares were specified and vested, liabilities and obligations towards the family
members were defined and imbalance out of unequal division was corrected. This certainly has
effect of bringing about disruption of joint family status and even if there was no partition by metes
and bounds and the coparceners continued to remain under the same roof or enjoyed the property
without division by metes and bounds, they did not hold as joint tenants unless re-union is pleaded
and proved.
21. It was, however, contended and the contention has found favour with the High Court that when
Kesavan, the second wife's son of Karappan took the properties allotted to his share and left the
family, as per terms of Ext. P-l four sons of Nani were constituted joint tenants or members of a
coparcenary. In reaching this conclusion reliance was placed by the High Court on Palani Ammal
v. Muthuvenkatachala Moniagar 52 IA 83. In that case, after referring to Appovier's case, (supra)
it was observed as under:
But the mere fact that the shares of the coparceners have been ascertained does not by itself
necessarily lead to an inference that the family had separated. There may be reasons other than a
contemplated immediate separation for ascertaining what the shares of the coparceners on a
separation would be. It is also now beyond doubt that a member of such a joint family can separate
himself from other members of the joint family and is on separation entitled to have his share in the
property ascertained and partitioned off for him and that the remaining coparceners without any
special agreement amongst themselves may continue to be coparceners and to enjoy as members,
of a joint family, what remained after such a partition of the family property. That the remaining
members continued to be joint may, if disputed, be inferred from the way in which their family
business was carried on after their previous coparcener had separated from them.
22. In Bhagwan Dayal v. Smt. Reoti Devi MANU/SC/0374/1961 : [1962]3SCR440 , this Court
examined the effect of a separation of one member of a joint family on the joint family status and
on the remaining members in the light of the Privy Council decision in Palani Animal's case, (supra)
The relevant observation is as under:
The general principle is that every Hindu family is presumed to be joint unless the contrary is
proved: but this presumption can be rebutted by direct evidence or by course of conduct. It is also
settled that there is no presumption that when one member separates from others that the latter
remained united; whether the latter remain united or hot must be decided on the facts of each case.
23. In fact, Judicial Committee in Balabux v. Rukhmabai ILR 30 IA 130 unequivocally held that
there is no presumption when one coparcener separates from others that the latter remained united.
An agreement amongst them must be proved either to remain united or to re-unite. In Sengoda v.
Muthu I.L.R. 47 Mad 567 the High Court interpreted Palani Ammal's case to lay down that if a
partition takes place with respect to one coparcener, the decree or the deed bringing about partition
would provide a pointer as to the effect of the decree or the deed on the remaining coparceners. In
Bhagwati Prasad Shah and Ors. Dulhin Rameshwari Juer and Anr. MANU/SC/0060/1951 :
[1951]2SCR603 this Court pointed out that the general principle undoubtedly is that a Hindu family
is presumed to be joint unless the contrary is proved but where it is admitted that one of the
coparceners did separate himself from the other members of the joint family and had his share in
the joint property partitioned off for him, there is no presumption that the rest of the coparceners
continued to be joint. There is no presumption on the other side too that because one member of the
family separated himself there has been separation with regard to all. It would be a question of fact
to be determined in each case upon the evidence relating to the intention of the parties whether there
was a separation amongst the other coparceners or they remained united. Except that four sons by
Nani remained under one roof and were joint in food and laboured together there is no evidence
that they agreed to constitute a coparcenary assuming that a coparcenary a creature of law could be
created by agreement. And if Karappan specified even the share of each of his sons by Nani in Ext.
P-l, this evidence of remaining together is hardly sufficient to warrant a conclusion that these four
sons constituted a coparcenary. Ext. P.I could not support such a conclusion and High Court was in
error in spelling out such conclusion from Ext. P-l overlooking its specific direction of a specified
share of each of his sons and liability to pay owelty.
24. A further submission that there was partition branchwise is un-known to Mitakshara law and is
wholly untenable. In Mayne's Hindu Law, 11th Edn., p. 347, law as thus stated:
"So long as a family remains an undivided family, two or more members of it, whether they be
members of different branches or of one and the same branch of the family, can have no legal
existence as a separate independent unit; but all the members of a branch, or of a sub-branch, can
form a distinct and separate corporate unit within the larger corporate family and hold property as
such. Such property will be joint family property of the members of the branch inter se, but will be
separate property of that branch in relation to the larger family.
The principle of joint tenancy is unknown to Hindu Jaw except in the case of the joint property of
an undivided Hindu family governed by the Mitakshara law.
25. In Bhagwan Dayal's case (supra) legal position after referring to earlier decisions has been
culled out as under:
Coparcenary is a creature of Hindu law and cannot be created by agreement of parties except in the
case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the
family as a subordinate cooperate body. The said family unit, whether the larger one or the
subordinate one, can acquire, hold and dispose of family property subject to the limitations laid
down by law.... Hindu law does not recognise some of the members of a joint family belonging to
different branches, or even to a single branch, as a corporate unit.
26. Now, if five sons of Karappan each constituted a branch, obviously after one son as a branch
separated unless a reunion is pleaded, other four cannot constitute a corporate body like a
coparcenary by agreement or even by subsequent conduct of remaining together enjoying the
property together. In Balkishen Das and Ors. v. Ram Narain Sahu and Ors. 30 I. A.139 an ikrarnama
was produced which showed that defined shares in the whole estate had been allotted to the several
coparceners. There was a passage which gave liberty to any of the parties either to live together as
a member of the joint family or to separate his own business. Mahabir was given four annas share
and others defined shares in the remainder. Contention raised was that Mahabir alone separated and
others remained joint. Subsequent conduct was relied upon to substantiate the contention that they
remained together. Negativing this contention it was held that the ikrarnama effected a separation
of estate even if the parties elected either to have a partition of their shares by metes and bounds,
or to continue to live together and enjoy their property in common as before. Whether they did one
or the other would affect the mode of enjoyment, but not the tenure of the property or their interest
in it. The ikrarnama effected a separation in estate, its legal construction and effect could not be
controlled or altered by the subsequent conduct. Once the shares were determined and allotted, it
was held consistently with Appovier's case (supra) that this converted them from joint holders into
tenants-in-common.
27. In Boddu Venkatakrishna Rao and Ors. v. Boddu Satyavathi and Ors. MANU/SC/0199/1967 :
[1968]2SCR395 , the following passage in Mulla's Transfer of Property Act (Fifth Edn.), was
approved:
The principle of joint tenancy appears to be unknown to Hindu law, except in the case of
coparcenary between the members of an undivided family.
28. Once disruption of joint family status takes place as Lord Westbury puts it in Appovier's case,
(supra) it covers both a division of right and division of property. If a document clearly shows the
division of rights and status its legal construction and effect cannot be altered by evidence of
subsequent conduct of parties.
29. Now, in this case Ext. P-l itself specifies the share of each member separately. There is no
concept known to Hindu law that there could be a branch of a family wife-wise. To illustrate, if a
Hindu father has two wives and he has three male children by the first wife and two by the second,
each wife constituting a branch with her children of the family is a concept foreign to Hindu law.
Therefore, tavazhi wife-wise stated in Ext. P-l has to be ignored and the contention that there was
a partition amongst wife-wise branches as represented by each wife is equally untenable. Ext. P-l
did bring about a specification of shares and once such shares were defined by the father who had
the power to define and vesting the same there was a disruption of joint family. There was thus a
division of rights and division of property by allotment of shares. The mode of enjoyment
immediately changed and members of such family ceased to be coparceners holding as joint tenants
but they held as tenants-in-common. Subsequent conduct of some of them to stay together in the
absence of any evidence of re-union as understood in law is of no consequence. In any event when
Kesavan, the son of the second wife, sought and obtained physical partition of the properties allotted
to him and left the family there being no evidence whether others agreed to remain united except
the socalled evidence of subsequent conduct, which is irrelevant or of no consequence, disruption
of status was complete. Therefore, the four sons of the first wife held the property as tenants in
common.
30. There is evidence in the form of some documents showing that defendant 1 was described as
Karnavaran of a coparcenary of the four sons of the first wife of Karappan and that the property
was enjoyed as a joint family property. In view of our conclusion that such subsequent conduct is
not conclusive of any agreement to reunite, it is not necessary to examine the evidence.
31. In view of our conclusion that since the execution of Ext. P-l on January 25, 1910, or after the
death of Karappan in February 1910, when Kesavan, the son of the second wife took his share of
the property left the family there was a disruption of the joint family and the sons of Karappan by
his first wife held the property, which remained for them after Kesavan obtained his share, not as
joint tenants but as tenants-in-common, the plaintiff would be entitled to the share to which her
deceased husband Raman was entitled. Raman had 1/4 share in A schedule properties which the
plaintiff would be entitled and therefore, there would be a preliminary decree in her favour to that
effect. Plaintiff's claim to a share in properties set out in schedules B and C annexed to the plaint
has been concurrently negatived by both the courts on the finding that they are the properties of
defendant 1 and his wife and are not accretions to the property which devolved from Karappan.
This concurrent finding of fact arrived at on appreciation of evidence appears to be correct and need
not be disturbed. Therefore, plaintiff's suit with regard to a share in B and C schedule properties has
been rightly dismissed.
32. At the commencement of hearing of the appeal it was pointed out that original plaintiff Kallyani
is dead and there is some dispute between her two daughters Yashoda and Janaki about succession
to the estate of Kallyani. Both had applied to the exclusion of each other for being substituted as
legal representatives of the deceased. For purposes of this appeal both were substituted for the
deceased appellant. It is not necessary to decide this question in this appeal because whoever of the
two establishes her right to inherit the property of Kallyani would be entitled to the same but the
dispute would be between Yashoda and Janaki and the other defendants have no right to be heard
in that matter.
33. Accordingly this appeal succeeds and it is partly allowed. The judgment and decree of the trial
Court and the High Court dismissing the plaintiff's suit in regard to A schedule property are set
aside. Plaintiff's suit is decreed and it is declared that she has 1/4 share in properties set out in
schedule A annexed to the plaint. A preliminary decree to that effect shall be drawn. Defendant 1
shall pay the costs of the plaintiff throughout.
A. Venkappa Bhatta and Ors. v. Gangamma and Ors., AIR 1988 Ker 133
Hon'ble Judges/Coram: U.L. Bhat and Chettur Sankaran Nair, JJ.
Court: High Court of Kerala
Cases Referred:
Bappu Ayyar v. Renganayaki, (1955) 2 Mad LJ 302, AIR 1955 Mad 394; Tate v.
Williamsom, (1866) 2 Ch. App. 55; Allcard v. Skinner, (1887) 36 Ch. D. 145; Ladli Parshad
v. Karnal Distillery Co., AIR 1963 SC 1279; Krishna Beharilal v. Gulabchand, AIR 1971 SC
1041; Omanhenie Kwamin Bansyin v. Bendentu, AIR 1937 PC 274; Palanivelu v.
Neelavathi, AIR 1937 PC 50
Disposition:
Appeal dismissed
Case Note:
Property - registration - Section 115 of Indian Evidence Act, 1872 - appeal against Order
holding that registration of deed took place under fraud and misrepresentation - onus on
appellant to prove that respondent executed deed after understanding contents of deed -
bona fide and good faith on part of party seeking to enforce documents must be proved - no
evidence adduced by appellants to show his bona fide - appeal dismissed.
JUDGEMENT
Chettur Sankaran Nair, J.
1. This appeal by defendants 1, and 6 to 15 is directed against the judgment of the court below in a
suit for partition. The parties are Havik Bramhins governed by the Hindu Mithakshara Law of
inheritance. Their common ancestor Venkateshwara Bhatta had four sons, Shankaranarayana
Bhatta alias Sankanna, husband of the plaintiff, D1, D2 and the husband of D15. The joint family
divided itself into branches on 16-9-49 under Ext. B20. By this the plaintiffs husband and
defendants separated from other branches and plaint A scheduled properties were allotted to this
branch. B scheduled properties are said to be later acquisitions. Sankaranarayana Bhatta died on 1-
7-1947. He had no sons, but only two daughters through the plaintiff. By reason of the Hindu
Women's Right to Property Act, as adopted by Madras Act 26/1947, the plaintiff claimed a widow's
estate, which later ripened into an absolute estate, under Section 14 of the Hindu Succession Act.
The first defendant is the kartha of the joint family. Defendants 3 to 5 are the sons of 2nd defendant.
D15 is the widow of another brother and D6 to D14 are his children. The plaintiff claimed partition
of 1/4th share of the estate, and share of profits. Defendants 1 to 6 created a sham partition deed
Ext. B1 dt. 26-12-1970, she says. Her signature was obtained on it, persuading her to think that it
was document intended to avoid tax. Ext. B1 was registered at Puthur in Karnataka State and
amounts to a fraud on registration and therefore cannot be treated as evidence of partition. The
allotment of shares under Ext. B1 is also unequal and unjust. She also avers that B schedule property
does not belong to the family.
2. The first defendant repudiated the claims of the plaintiff. According to him, Shankaranarayana
Bhatta died long before Madras Act 26 of 1947 came into force, and therefore the plaintiff had no
heritable right. He does not say when. Ext. B1 is a genuine document, the plaintiff was willing party
to it, and B schedule also are family properties, according to him. He disputed all the averments of
the plaintiff.
3. Defendants 2 to 5 would also contend that Shankaranarayana Bhatta died long before Madras
Act 26/1947 came into force. They too, like the first defendant, would not say when. According to
them, two suits are pending against the family, and they dispute joint possession of plaintiff after
Shankaranarayana Bhatta's demise. The suit, they say, was inspired by the plaintiffs son-in-law.
Defendants 6 to 15 would aver that there was only a maintenance arrangement in favour of the
plaintiff, and after her death the properties set apart for her maintenance, were to devolve on her
daughters. For the rest, they endorsed the contentions of other defendants.
4. The court below on the evidence of P. Ws. 1 and 3 found that the plaintiffs husband died on 1-7-
1947, accepting Ext. A1 extract from the Register of Death as conclusive proof. The court found
that she was entitled to l/4th share of the family properties, and the profits claimed. Ext. B1 was
found to be invalid and not intended to be acted upon; and B schedule property was found to be that
of the 6th defendant (this is allotted to the share of the 6th defendant).
5. Relying on the evidence of P. Ws. 1 and 3, the court found that the plaintiff, an old and illiterate
lady, entirely dependent on the first defendant was persuaded to subscribe her signature to Ext. B1,
in the belief that it was to avoid tax. Ext. B1 was thus vitiated by undue influence and untrue
representations. The evidence of the 6th defendant (as D.W. 1) that even after Ext. B1, the properties
were managed as joint family properties, that 'viniyogas' were conducted by him, that properties
allotted to the plaintiff were less than her entitlement of l/4th share (para 16), that no separate
provision was made for 'viniyoga', that it is to be performed by one sharer, in the house of another
sharer, and other circumstances were noticed in support of the view that Ext. B1 was sham and
intended as a cloak to disguise other intentions. The suit was decreed as prayed for, in consequence.
6. This is challenged in appeal by defendants 1, and 6 to 15.
7. The first question for determination is, when Shan karanaray and Bhatta died. Plaintiffs right of
inheritance, would turn on the answer to this. When examined in 1977, she would say that her
husband died 30 years ago, on 'Navami' in 'Vrishabha' year. That is 1947 A.D. She is a simple and
unsophisticated lady and her evidence has not been shaken by searching cross-examination. She
has impressed us as a witness of truth and we have no hesitation to accept her evidence. The
evidence of P.W. 1 regarding the date of death is not rebutted. The evidence of D.W.1 (the sixth
defendant) who was only 10 years old in 1947, to the contra is not acceptable. The 1st defendant
was not examined either. The evidence of P.W. 1 is corroborated by Ext A1. The date therein is 1-
7-1947, We are inclined to accept. Ext. A1 also, not only because it is a public document but also
because, the details therein and other circumstances fall in place, with plaintiff's case.
8. The appellants hotly contest her version -- contest for the sake of contest for they have no specific
case in rebuttal, except elusive statements. If the date of death is long prior to 1947, the plaintiff
would have no heritable right as the Hindu Women's Right to Property Act, as adopted by Madras
Act 26/1947 would not be available. This seems to be the only reason, for the appellants to dispute
the date. We reject the appellants' contention that plaintiffs husband died prior to the Madras Act
26/1947.
9. By operation of the Hindu Women's Right to Property Act, as adopted by the Madras Act,
extending the Act to agricultural properties, plaintiff had a right in the properties of her late husband.
It is argued by the defendants that even if the date of death is 1-7-47, the plaintiff would have no
rights because the Act came into force only on 18-12-47. This argument must fail. The Act had
retrospective effect from 26-11-46 as is clear from Section 3 thereof. In Bappu Ayyar v.
Rehganayaki, (1955) 2 Mad LJ 302 : (MANU/TN/0166/1955 : AIR 1955 Mad 394), we notice that
the Madras High Court has taken a similar view. This right was perfected into an absolute estate.
by operation of Section 14 of the Hindu Succession Act.
10. Appellants would then contend that in the face of Ext. B1 partition deed dated 26-12-1970.
plaintiff is estopped from asking for partition over again, and in variance of Ext. B1. Incidentally,
the appellants also urged that Ext. B1 is a maintenance arrangement, and no more. This argument
is rested on the premise that the plaintiff has no heritable right and only a right of maintenance. In
view of our answer to the question of her right, this contention must fail.
11. We next consider whether Ext. B1 operates to estop the plaintiff from claiming partition. We
think not. According to plaintiff, Ext. B1 was the outcome of undue influence and mis-
representation. Her evidence is that she subscribed her signature to Ext. B1 on the persuasion of
first defendant, and on the assurance that it was a document intended to gain tax reliefs. Plaintiff,
an old lady in late sixties and illiterate, not well versed in the ways of the world was leading the
sheltered life of a widow in an orthodox family. She was very much under the influence of the first
defendant, kartha of the family and brother of her late husband. She had no sons or support to look
to. In this background, her version that she believed others and executed Ext. B1 is not only
plausible, but appealing. We shall also notice the other relevant circumstances. D.W. 1 has spoken
to her case in detail. No doubt, she was unable to say who instructed the counsel to prepare the
plaint. But, she knew what she was signing. D.W. 1 in an attempt to make out that Ext. B1 was a
genuine document would say that the plaintiff read the draft of Ext. B1. It is a lengthy document
containing complicated provisions. P.W. 1 is an illiterate person and we cannot accept the evidence
of D.W. 1 that she read the draft of Ext. B1 or understood what it was. D.W. 2 supports the evidence
of D.W. 1. Admittedly, he was not even on visiting terms with P.W. 1, though claims to be a
mediator in the partition. We do not consider his evidence reliable. D. W. 3 who is a son-in-law of
the plaintiff and the husband of the 12th respondent also supports the evidence of D.W. 1. He was
not present when Ext. B1 was written and his evidence that all the executants read Ext. B1 before
signing (including P.W. 1 who is illiterate) cannot be believed. The terms of Ext. B1 also is
suggestive of the fact that it is only a sham document. It does not say which of the parties are entitled
to which of the properties. The buildings have not been valued. The other recitals also are equally
suspicious. It is recited that the plaintiff is incapable of cultivating the property and that she would
get maintenance in lieu of her share. When she had two sons-in-law, grand children and daughters,
we cannot accept these recitals for their face value. The clause that the 6th defendant would be in
possession and that he would meet the expenses of the plaintiff as desired by her, is equally
intriguing, more so when the plaintiff had informed him by registered notice of her intention to
reside separately and had asked him to pay the amounts due to her, by the 31st of Mar. every year.
Equally suspicious are the recitals that after a year of her death, the property must be given to the
6th defendant and the 12th and 13th respondents. The income of A schedule property is 8,55,150
arecanuts (about 25 candies), 280 murahs of paddy and 5490 coconuts. The plaintiffs share would
be a fourth of this. It is difficult to think that a provision to pay her two candies of dried arecanuts
is a fair settlement. It is nothing but unjust and inequitable. In these circumstances, it cannot be
believed that she would have agreed to Ext. B1. Ext. B1 does not have the look of a partition deed,
that makes fair and equitable allotment. The division is uneven. Plaintiff gets only 56 cents, and
that too is in the possession of tenants. There are other suspicious circumstances, to which we have
already made reference. Ext. B1 has thus a stage managed appearance. First defendant and the 6th
defendant and their allies played a leading role to engineer Ext. B1 into existence. The venue for
execution of Ext. B1 was chosen by them, at Puthur away from the place of their residence, and the
residence of plaintiff. A convincing and palatable version for the execution of a document was
given, namely to avoid tax. Chances are that she was carried away by what the first defendant told
her, and little did she realise what was happening. Having regard to these circumstances, we are of
opinion that Ext. B1 was not executed by plaintiff of her free will and that by untrue representations,
which she was made to believe to be true, she was persuaded to join Ext. B1. This, to our mind
appears to be a clear instance of undue influence. Lord Chelmsford stated the principle of undue
influence thus in Tate v. Williamsom(1866) 2 Ch. App. 55 at 61).
"Wherever two persons stand in such a relation that while it continues, confidence is necessarily
reposed by one, and the influence which necessarily grows out of that confidence is possessed by
the other and this confidence is abused, or the influence is exerted to obtain an advantage at the
expense of the confiding party, the person so availing himself of his position, will not be permitted
to retain the advantage, although the transaction could not have been impeached if no such
confidential relation had existed"
Again in Allcard v. Skinner (1887) 36 Ch. D. 145 Lindley, LJ. stated the Law as follows :
"The undue influence which courts of equity endeavour to defeat is the undue influence of one
person over another; not the influence of enthusiasm on the enthusiast who is carried away by it,
unless indeed such enthusiasm is itself the result of external undue influence."
In Ladli Parshad v. Kamal Distillery Co. MANU/SC/0061/1962 : AIR 1963 SC 1279, the Supreme
Court, noticed the principles of Common Law with approval :
"The Indian Enactment is founded substantially on the rules of English common Law.....a
transaction may be vitiated on account of undue influence where the relations between the parties
are such that one of them is in a position to dominate the will of the other and he uses his position
to obtain an unfair advantage over the other."
12. Relying on Krishna Beharilal v. Gulabchand MANU/SC/0478/1971 : AIR 1971 SC 1041

counsel for appellants urged that if a reversioner enters into a compromise with regard to his claims
and the claims of his opponent, he cannot be allowed to go back on it. The court observed :
"It is well settled that a Hindu widow cannot enlarge her estate by entering into a compromise with
third parties to the prejudice of the ultimate reversioners."
We do not think that plaintiff has entered into any such compromise.
13. The decision reported Omanhenie Kwamin Bansyin v. Bendentu MANU/PR/0078/1937 : AIR
1937 PC 274 is apposite in the circumstances of the case, Lord Russell of Killowen stated the law
in these terms:
".....the onus lay upon Upper Was saw to establish that the document had in fact been properly
explained and interpreted so as to make the Omanhene of Acwin understand its real import."
Plaintiff as we have already stated is an illiterate person and she had no advice or means to know
the contents of Ext. B1. There is no force in the contention that she was party to Ext. B1, and
therefore that she is estopped from contending against it.
14. It is for the appellants to show that the plaintiff was made to understand the contents of Ext B1
and that she executed the deed, knowingly. The law is that it is up to the party relying on a document,
executed by an illiterate person to prove, that it was executed in the full knowledge of what it was,
before such party can seek to enforce that. The bona fides and good faith on the part of the party
seeking to enforce the document, must be proved. In Palanivelu v. Neelavathi,
MANU/PR/0026/1937 : AIR 1937 PC 50, the Board observed :
"The burden of proving the good faith of the transaction is on the party who was in a position of
active confidence."
As in the reported case, proof of good faith was not forthcoming from the defendants, particularly
the 1st defendant, who was in a position to dominate the will of the plaintiff. We do not think that
Ext. B1 would operate to estop plaintiff. The whole exercise, we think was an endeavour to deprive
the plaintiff of her legitimate share.
15. The next question for consideration is whether there was fraud on Registration Laws. Whether
B schedule property is divisible, will be material in considering this aspect. 2.88 acres of dry land
belonging to one Narayana Naik was sold to the 6th defendant for Rs. 2,500/- on 4-11-70. On the
same day he sold 3 acres for Rs. 20,000/- to P.W. 2. This is included in the share of 6th defendant
in Ext. B1. On 3-12-71 this is sold by 6th defendant to P.W. 2 6th defendant admits that he
purchased the properties after partition talks commenced and that he borrowed Rs. 2500/- in his
personal capacity from one H.M. Bhat. P.W. 2 would say that he is in possession of the property,
under the sale deed of 3-12-71 and that Narayana Naik was in possession prior to that. He would
also say that the property for Rs. 20,000/- was purchased in his name and the other property for Rs.
2500/- in the name of 6th defendant. The purchase was thus really for P.W. 2 and not for 6th
defendant or family. It is also clear that neither the 6th defendant nor the family was in possession.
D. W. 1 says, he has no tax receipts with him. Thus, the acquisition in the name of 6th defendant
was only a ruse. We are of opinion that Ext. B1 evidences, fraud on registration. A heavy stamp
duty would be attracted in the case of property valued over Rs. 4 lakhs in Kerala. By bringing in B
schedule properties situated in Karnataka into Ext. B1, registration was effected in Puthur in
Karnataka, paying a stamp duty of only Rs. 90/-. This property was acquired by 6th defendant (it
was allotted to 6th defendant). The acquisition was while the so called partition was round the
corner even according to the defendants. It is very unlikely that the family would acquire an item
of property at such a time. All these features show that it was not a genuine or bona fide transaction.
In the light of Section 17(1)(b) and Section 47 of the Registration Act, the registration is not valid.
The position would be as if the document is not registered It is unenforceable (see
MANU/PR/0031/1934 : AIR 1934 PC 157, MANU/PR/0001/1936and MANU/TN/0258/1936). No
evidentiary value can therefore be attached to Ext. B1.
16. We are satisfied that Ext. B1 was brought about by undue influence and misrepresentation, that
it evidences fraud on registration and that it was not intended to be acted upon. The appellants have
not succeeded, in showing that the findings of the court below call interference.
17. In the result, we confirm the judgment and decree of the court below and dismiss the appeal.
Parties will bear their costs.
Ratnam Chettiar and Ors. v. S.M. Kuppuswami Chettiar and Ors., AIR 1976 SC 1
Hon'ble Judges/Coram: S. Murtaza Fazal Ali and V.R. Krishna Iyer, JJ.
Prior History:
From the Judgment and order dated the 22nd November, 1963 of the madras High Court in
Appeal Nos. 329 and 468 of 1959
Case Note:
Family - reopening of partition - Hindu Law - appeal filed by minor members of family for
cancellation of partition - trial court opined that partition of movable properties was ex
facie unjust and unfair and appointed Commissioner to go into valuation - High Court set
aside Order of appointing Commissioner and passed decree to extent of 2/5 share in favour
of appellant - Supreme Court on finding of facts opined that shares of minors were easily
ascertainable in terms of money and can be quantified - appointment of Commissioner for
reopening of entire partition cannot be justified - Supreme Court granted an amount of Rs.
15000 with interest on ground of ex facie disparity in partition.
JUDGEMENT
S. Murtaza Fazl Ali, J.
1. This is the plaintiffs' appeal against the judgment of the High Court of Madras dated November
22. 1963 by certificate. The appeal arises out of a partition suit filed by plaintiffs Nos. 1 to 4 for
cancellation of partition made between the father of the plaintiffs who is defendant No. 5, and
defendant No. 1 the elder brother of defendant No. 5. It appears that as far back as May 10, 1940
the two brothers, namely S. M. Kuppuswami Chettiar defendant No. 1 and S. M. Ranganatham
Chettiar defendant No. 5. who were originally members of Undivided Hindu Family partitioned
their shares by virtue of a registered partition deed dated May 10, 1940. At the time when the
partition was made plaintiffs Nos. 2 to 4 were minors and defendant No. 3 was also a minor. Under
the partition deed both immovable and moveable properties were divided between the two brothers
voluntarily through the aid and assistance of D.W. 3 K. Narayan swami who was the family auditor
of defendant No. 1 and was his friend and adviser. The partition deed with respect to the immovable
properties is Ext. B-1 which appears at pp. 243-248 of the Paper Book. Under the partition deed
two Lists were prepared itemising the properties which were to go to the two brothers. The list of
properties is contained in Ext. B-l 15 of the Paper Book. As regards the moveable properties it
appears that the partition had taken place a month earlier i.e. on April 12, 1940 and the partition
deed is Ext. B-3. which consists of two Schedules-Schedule A and Schedule B - moveables
mentioned in Schedule A were allotted to defendant No. 1 and those contained in Schedule B were
allotted to the share of defendant No. 5.
2. The plaintiffs' case was that the two brothers who were members of the Undivided Hindu Family
along with the plaintiffs and other minor coparceners betrayed the interests of the minors and the
division made between them was both unjust and unfair and had the effect of depriving the minors
of their legal shares in the properties the lion's share having fallen to the lot of elder brother
defendant No. 1 S. M. Kuppuswami Chettiar hereinafter referred to as 'S. M. K.'. The plain tiffs'
father who is defendant No. 5 being a person of weak intellect did not care to protect the interests
of the minors and he accordingly accepted any share that was allotted to him without any objection.
Defendant No. 5 S. M. Ranganathan Chettiar would be hereinafter referred to as 'S. M. R.'. Plaintiffs
also alleged that the partition was secured by practising fraud and undue influence and by
suppressing large assets be longing to the family which were taken by defendant No. 1 by taking
advantage of the weakness of the plaintiffs' father.
3. We might mention at the outset that Mr. F. S. Nariman the learned Counsel for the appellants did
not at all press the plea of fraud and undue influence taken by the plain tiffs before the Trial Court
and con fined his arguments only to the al legation that the partition effected between the two
brothers S. M. K. and S. M. R. was at the very face of it unjust and unfair and detrimental to the
interests of the minOrs. The plaintiffs also laid claim to a sum of Rs. 10,000/- from the cash deposit
which is said to have been given to the mother of defendants 1 and 5 but this claim was not pressed
before us in the course of the arguments. Other minor claims which were also made before the Trial
Court were not pressed before us.
4. The suit was resisted by defendant No. 1 S. M. K. and his major sons defendants 1 & 4 and a
minor son defendant 3 who however attained majority during the pendency of the suit before the
Trial Court. We might also mention here that plaintiffs Nos. 2 to 4 sons of S. M. R. were also minors
at the time when the suit was filed but plaintiff No. 2 attained majority on October 3, 1958 just
about a month and a half before the judgment in the suit was delivered by the Subordinate Judge,
Coimbatore. The defendants stoutly denied the allegations made by the plaintiffs and averred that
there was absolutely no disparity in the division of the properties, that no fraud or undue influence
had been practised that the properties were divided between defendants 1 and 5 with the explicit
consent of defendant No. 5 and that the division of the properties would show that the partition was
neither unjust nor unfair, both parties having taken equal shares in the immovable and moveable
properties. A number of other pleas was also raised by the defendants, but it is not necessary for us
to deal with them in view of the points pressed before us by the learned Counsel for the appellants.
5. The Trial Court framed as many as 18 issues and after considering the oral and documentary
evidence produced before it it held that so far as the partition of the immovable properties was
concerned which was done by a separate document and was clearly severable from the partition of
the moveable properties the partition was neither unjust nor unfair so as to entitle the minors to
reopen the partition after a long period. The learned Trial Judge, however, was of the opinion that
so far as the partition of moveable properties was concerned it was ex facie unjust and unfair and
the plea of the plaintiffs for re-opening the same must succeed. The Trial Court accordingly passed
a preliminary decree for repartition of the moveable properties and directed the appointment of a
Commissioner to go into the valuation of the assets sought to be re partitioned.
6. Both the plaintiffs and the defendants filed separate appeals before the High Court of Madras.
The plaintiffs filed an appeal before the High Court against that part of the decree which dismissed
their suit for re-opening the partition of the immovable properties, while the defendants filed an
appeal against the decree of the Trial Court directing re opening of the partition of moveable
properties and thus decreeing the plaintiffs' suit to that extent. The High Court decided both the
appeals by one common judgment dated November 22, 1963 and by upholding the findings of the
learned Subordinate Judge, Coimbatore, the High Court made a slight variation in the decree by
setting aside the directions of the Subordinate Judge for the appointment of a Commissioner and by
quantifying the value of the disparity in the share of the plaintiffs, the High Court passed a decree
to the extent of 2/5th share of Rs. 17,700/-. The plaintiffs alone have filed the present appeal against
the judgment and decree of the High Court after obtaining; a certificate from that Court.
7. Before going into the merits of the case, it may be necessary to mention a few unique aspects of
the present case. It Would appear from the findings arrived at by the two courts that defendant No.
1 was undoubtedly an honest man and defendant No. 5 the younger brother appears to be an idealist-
a person to whom the value and prestige of the family was a consideration much above mundane
monetary matters. Secondly, the partition between the two brothers was voluntarily made about 35
years ago and the father of the plaintiffs had most willingly and with good grace accepted the
partition and the shares that were allotted to him. Thirdly, since a very long time had elapsed since
the partition took place, it would be well-nigh impossible for any court to determine the value of
the assets, some of which might have disappeared, others may be shrouded in mystery, and for
determining the rest the necessary data may not be available. It appears to us to be too late in the
day in 1975 to appoint a Commissioner in order to go into a situation which existed in 1940 and
then to pass a decree which may result in a fresh spate of litigation for another decade. It was
possibly this consideration which weighed with the High Court in quantifying the amount of the
share of the plaintiffs which they had suffered under the division of the assets. Finally, the plaintiff's
father defendant No. 5 was a shrewd businessman and after his elder brother had suffered from
some illness, he was carrying on the business of the family a few years before the partition. Both
the parties were assisted by an Auditor Mr. K. Narayan swami in effecting the partition by metes
and bounds. In these circumstances, therefore, there could be no question of practising any fraud or
undue influence as alleged by the plaintiffs and if the partition was unjust or unfair to the minors it
was merely because defendant No. 5 made an error of judgment with respect to some properties.
Lastly, we have not been able to find any material to justify the conclusion of the High Court that
the difference in the allotment of the shares to the plaintiffs would be 2/5th of Rs. 17.700/-. We
shall deal with this point a little later and show that the difference is much more.
8. Mr. Nariman, learned Counsel for the appellants submitted two points before us. In the first place,
he assailed the partition of the immovable properties on the ground that no valuation of the
properties was fixed according to the market value and that the plaintiffs were not given any share
in the agricultural properties. As regards the move-able properties it was argued that the division
was wholly unjust and unfair because the lion's share was taken by defendant. No. 1 and the choice
made by defendant No. 5, the father of the plaintiffs was neither wise nor prudent and was extremely
detrimental to the interests of the plaintiffs. As an instance of the unfairness of the partition Mr.
Nariman pointed out that a comparison of Scheduler, A and B of Ext. B-3 would show that
defendant No. 1 was allotted moveable properties worth Rupees 1 10,274-2-0 whereas defendant
No. 5 was' given properties worth Rupees 90 142-4-0 there being a difference of about Rs. 20,000/-
odd. He also pointed out that shares of Lakshmi Textile Mills were allotted to defendant No. 1
which were extremely valuable and gave very rich dividends whereas defendant No. 5 was allotted
the shares of Lakshmi Sugar Mills which was one of the sick Mills running at a loss whose dividends
were insignificant. We shall consider this contention raised by counsel for the appellants a little
later.
9. The learned Counsel appearing for the respondents Mr. Natesan, however, submitted that the
present suit is frivolous and has been filed only with a view to harass the defendants and to re-open
a partition which was both just and equitable and which was entered by both the brothers with their
eyes open and with the aid of their financial ex pert. Learned Counsel for the respondents, further
submitted that there is no reliable evidence to show that there was any cash deposit of Rupees
65,000/- as mentioned in Schedule B, and if there was one it would have been divided on the spot
instead of being postponed to a future date. Similarly it was submitted that so far as the shares are
concerned they were chosen by defendant No. 5 himself and their valuation was equal.
10. As regards the immovable properties we find ourselves in complete agreement with the
arguments of the learned Counsel for the respondents that the partition of these properties was fair
and just and there is no material on the record to show that the partition worked in any in justice or
was detrimental in any way to the interests of the minOrs. In this connection we might try to
illustrate our point from the findings of the Trial Court regarding the valuation of the immovable
properties divided between the two brothers. The partition of immovable properties Ext. B-l which
appears at pp. 243 to 248 of the Paper Book consists of two schedules A & B. The Trial Court has,
after careful consideration of the evidence, very scientifically itemised the properties allotted to
each of the brothers and the value of those properties. For instance, item 1 of Schedule A allotted
to defendant No. 1 is a tank-fed nanja land in Kurichi village measuring 3.80 acres and has been
valued at Rs. 4,000/-. Item 2 is a similar land in village Kurichi which is self-cultivated and has
been valued at Rs. 7,000/- Thus the total value of items 1 and 2 of Schedule A comes to Rs. 11,000/-
. As against this defendant No. 5 was allotted item 2 of Schedule B which on the basis of capitalised
value at the rate of Rs. 60/- per month has been fixed at Rs. 14,000/-. Items 1 and 2 of Schedule A
are the only agricultural properties possessed by the family and the Trial Court has rightly pointed
out that whereas defendant No. 1 took the agricultural properties, defendant No. 5 got urban
properties not only of the same value but of a higher value. Similarly item No. 3 of Schedule A
allotted to defendant No. 1 is a house in the Big Bazar Street and has been valued at Rs. 16,500/.
As against this the family house in the Oppanakkara Street has been allotted to defendant No. 5
whose value is much more than item No. 3 of Schedule A. The capitalised value of the family house
in the Oppanakkara Street on the basis of rental of Rs. 700/- per month would come to near about
Rs. 96,000/-. Item 4 of Schedule A is a house and site in Ramanathapuram and has been valued at
Rs. 7,000/-because it was purchased in 1938 for a sum of Rs. 5,650/- vide Ext. B-139 dated March
6, 1938. The learned Subordinate Judge has roughly put the valuation of the said house and site at
Rs. 7,000/- in 1940. As against this item 3 allotted to defendant No. 5 is a shop building in the Big
Bazzar Street carrying a rental of Rs. 30/-per month at the time of the partition whose capitalised
value would be Rs. 7,000/-. Item No. 5 of Schedule A which was allotted to defendant No. 1 has
been valued at Rs. 2,300/- representing the purchase price of the property mentioned in Exts. B-140
to B-142. As against this item 4 of Schedule B which has been allotted to defendant No. 5 was
purchased for a sum of Rs. 2,100/-. It would thus appear that the division of immovable properties
is just, fair and equal. It is true that the properties were not actually valued according to the market
rate and that a notional valuation had been given in the partition deed. But in view of the detailed
examination by the two Courts of the fact regarding capitalised value of the properties allotted to
the two brothers it cannot be said that the partition of immovable properties was either unfair or
unjust or in any way detrimental to the interests of the minOrs. After considering the evidence, the
Trial Court found as follows:
It is thus found from the available evidence that there was no unfairness or inequality in the partition
of the Immovable properties effected under Exhibit B-l and that no ground exists for reopening that
partition.
The High Court upheld the findings of the Trial Court in these words:
Thus in regard to the division of the immovable properties it is not possible for us to say that there
was unfairness or fraud or irregularity in the allotment of the properties between the brothers. The
scheme of the division of the immovable properties seems to us to be fair and we cannot say that
the plaintiff's father (5th defendant) acted against the interests of his sons or that the 1st defendant
took any advantage of his position as the eldest member of the family and allotted to himself the
best among the properties available for division. We therefore confirm the finding of the learned
Subordinate Judge that the partition of the immovable properties effected under Exhibit B-l is
binding on the plaintiffs and that the plaintiffs are not entitled to reopen the partition.
11. It is a well-settled practice of this Court not to interfere with a concurrent finding of fact given
by the two Courts below in the absence of any extraordinary or special reasons. In the instant case
we hold that the finding of the High Court as well as of the Trial Court is based on a full and
complete consideration of the evidence both oral and documentary and an elaborate and meticulous
discussion of all the surrounding circumstances. We, therefore do not feel inclined to interfere with
this concurrent finding of fact which is hereby affirmed.
12. We might state that the objection regarding the properties not having been properly valued fails
to the ground when we find that instead of notional value mentioned in the partition deed which is
Rs. 12,547-13-0 for defendant No. 1 and Rs. 12,000/- for defendant No. 5, the capitalised value of
the items allotted to the two brothers either on the basis of their purchase price or on the basis of
the rent fetched by them is almost equal. The first contention regarding the partition of immovable
properties raised by the learned Counsel for the appellants being unfair and unjust must therefore
be overruled.
13. We now come to the question of the division of moveable properties. In this connection our
attention was drawn by Mr. Nariman to Ext. B-3 which is to be read along with the pencil note of
K. Narayana swami D.W. 3, who was the auditor of defendant No. 1 himself. Exhibit B-3 is the
partition deed of moveable properties consisting of shares, deposits, pronotes, mortgage deeds and
cash particulars of which are given in Schedule and B. Moveable properties mentioned in Schedule
A were allotted to defendant No. 1 and those mentioned in Schedule B were allotted to defendant
No. 5 father of the plaintiffs. It will appear from a plain examination of the two schedules that
whereas defendant No. 1 admittedly got properties worth Rs. 1,10,274-2-6 defendant No. 5 got
properties only worth Rs. 90,142-4-0 there being a clear disparity of Rs. 10,000/- because the share
of each of the two defendants would be Rs. 1,00,208/-. On the defendants No. 1's own documents,
therefore, it is clear that a loss of Rs. 10,000/- was caused to defendant No. 5 in the year 1940 and
the share of the plaintiffs in this loss would be 2/5th i.e. about Rs. 4,000/- which would swell into
a large amount if we add interest for all these 35 years. That apart, the learned Counsel for the
appellants has submitted that the document Ext. B-3 deliberately omits to mention a sum of Rs.
65,000/- which was a cash deposit alleged to have been kept in the safe and out of which Rs.
10,000/-were agreed to be given to the mother of the two brothers and the rest, viz. Rs. 55,000/-
were to be divided between the two brothers, each defendant getting Rs. 27,500/-. This is
undoubtedly proved by Ext. A-2 where these figures are clearly mentioned. Entry No. 1 of Ext. A-
2 runs thus:
Total Settlement S.M.K. S.M.R. (1) (2) (3) (4) (5) (6) Thanichontham Belonging ... 65,000/-
55,000/- 27,500/- 27,500/- exclusively* *Scored out in pencil
This cash amount of Rs. 65.000/- is denied by defendant No. 1 and it is said that this amount might
have been hidden money which never came to the share of the parties. D.W. 3 K. Narayanaswami
has positively admitted in his evidence that he had made this entry in his own hand-writing but he
scored out this entry as the amount was not available. Both the Subordinate Judge, Coimbatore and
the High Court have accepted the explanation given by D W. 3 Narayanaswami although the
explanation appears to us to be prima facie false and unconvincing. Even assuming that this entry
was made due to some mistake and had to be scored out, we cannot believe that a person of the
expert knowledge and status of D.W. 3 Narayanaswami Iyer the Auditor would forget to make a
corresponding correction in the total amount which is given below the statement of account signed
by him. If the amount of Rs. 65,000/- was scored out, then the total would be Rs. 2,00,116/- in Ext.
A-2, but the total shown in pencil in Ext. A-2 is Rs. 2,65,116/- which completely demolishes the
case of defendant No. 1 and the explanation given by D.W. 3 that the entry was made due to some
mistake. The Courts below have, however, relied on a number of circumstances which are purely
of a speculative nature, in. order to hold that the plaintiffs have not been able to prove the existence
of the cash amount of Rs. 65,000/-. One of the circumstances was that according to the evidence of
defendant No. 5 the amount of Rs. 65,000/- was taken but from the safe and counted in the presence
of defendants 1 and 5 and yet defendant No. 5 did not care to divide it at that time into two equal
parts, nor did he insist on the same. Defendant No. 5 has, however, given an explanation that as his
elder brother wanted that this money should be divided later he did not want to join issue on the
subject and trusted his elder brother. A perusal of the evidence of defendant No. 5 clearly shows
that he is an extremely emotional sort of a person who believes in the respect of the family above
all considerations. It is, therefore, not unlikely that defendant No. 5 quietly accepted the advice of
his elder brother to divide the amount later on. It was however argued by the learned Counsel for
the respondents that defendant No. 5 was a shrewd businessman having managed the family affairs
for quite some time and if such a huge amount was concealed from him by his elder brother he
would have undoubtedly raised objection at any time before the suit. This conduct of defendant No.
5 cannot, however, put the plaintiffs out of court. He had decided to abide by the advice of his elder
brother and if he thought that his elder brother did not want to divide the amount of Rs. 65,000/- he
kept quiet which is quite in consonance with the character of this man as revealed in his evidence
and the circumstances of the case. Assuming however that defendant No. 5 did not take any
objection, as the amount was very huge the silence of defendant No. 5 or even his acquiescence in
allowing his elder brother to swallow this amount was not a prudent act and has caused serious
detriment to the interests of the minors which he had to protect, because the minors at that time
were members of the Hindu Undivided Family. In view of these circumstances, . therefore, we are
satisfied that the plaintiffs' case regarding the deliberate suppression of the cash amount of Rs.
65,000/- has been proved and if this amount would have been available to defendant No. 5, then the
plaintiffs would have got 2/5 share of Rs. 65,000/-, viz. Rupees 27,500/-, as far back as 1940. The
argument of Mr. Nariman on this point is, therefore, well-founded and must prevail.
14. The only other point that was stressed before us by the learned Counsel for the appellants was
that the Trial Court was right in ordering the appointment of a Commissioner for going into the
assets of the moveable properties, particularly the question of the shares of the Lakshmi Mills. We
are, however, unable to agree with this argument. Mr. Natesan learned Counsel for the
respondents has drawn our attention to some important documents to show that the shares were
equally divided between defendants Nos. 1 and 5 and were actually chosen by defendant No. 5
with his eyes open. Exhibit B-153 which is a share market report dated April 5, 1940 shows that
the paid up value of each share of Lakshmi Sugar Mills was Rs. 50 but the current price of the
share at that time was Rs. 41/8/- i.e. it was Rs. 8/8- below the paid-up value and the dividend paid
on the share was only Rs. 9/- yearly. It was, therefore, suggested by counsel for the respondents
that defendant No. 5 was given the choice to take the shares of the Lakshmi Mills or the Lakshmi
Sugar Mills and in view of the low market rate of the Lakhsmi Mills he chose to take the shares of
the Lakshmi Sugar Mills to the extent of Rs. 10,000/-. In lieu of the shares of other Mills
defendant No. 5 took a cash amount of Rs. 13,000/- as would appear from Ext. B-3. It is true that
the shares of Lakshmi Textile Mills went up enormously a few years later in view of the
international war situation in the continent but defendant No. 5 could not have foreseen such a
contingency and if he had made the choice which he thought would be beneficial to the interests
of the minors his conduct would have been at best an error of judgment which would not be
sufficient to reopen the choice made by him.
15. Mr. Nariman. however, strenuously relied on the evidence of D.W. 3 Narayanaswami Auditor
which was to the effect that he expressed great surprise when defendant No. 5 chose the shares of
Lakshmi Sugar Mills and in his opinion that was his foolish act. This is, however, a matter of
opinion but the fact remains that the market report of the Lakshmi Mills was not encouraging and
therefore there was some justification for defendant No. 5 for not opting for the shares of the
Lakshmi Mills. In these circumstances we hold that so far as the shares of the various Mills were
concerned there was no unjust or unequal distribution between the parties. This item of moveable
properties, therefore was correctly divided between the parties.
16. Learned Counsel for the respondents submitted that taking a broad view of the whole case the
Court should hold that it was not a case of unfair or unjust partition, because both defendant Nos.
1 and 5 were persons who had shrewd business experience and had voluntarily accepted the
partition of the properties which was by and large equal. The learned Counsel relied on the decision
of this Court in Devarajan v. Janki Ammal C. A. No. 2298 of 1966 decided on 20-3-1967 (SC)
where this Court observed as follows:
Generally speaking, a partition once effected is final and cannot be reopened on the ground of mere
inequality of shares though it can be reopened in case of fraud or mistake or subsequent recovery
of family property: see Moro Vishvanath v. Ganesh Vithal (1873) 10 Bom HCR 444. Further an
allotment bona fide made in the course of a partition by common consent of the coparceners is not
open to attack when the shares are not absolutely equal or are not strictly in accordance with those
settled by law. It is true that minors are permitted in law to reopen a partition on proof that the
partition has been unfair and unjust to them. Even so, so long as there is no fraud, unfair dealing or
over-reaching by one member as against another, Hind a law requires that a bona fide partition
made on the basis of the common consent of coparceners must be respected and is irrevocable:
It was submitted that the evidence and circumstances of the case clearly show that there was no
inequality of shares and the plea of fraud or mistake has not been accepted by the courts and that
on the whole the partition was bona fide. It is true that if this was the position the ratio of the
decision in Devarajan's. case would undoubtedly apply to this case. But this Court had taken care
to point out in these very observations which are underlined by us that this rule did not apply to the
minors who are undoubtedly permitted in law to reopen the partition once it is proved that the
partition was unfair or unjust to them. In view of the concurrent finding of fact of the two Courts
below that the partition of moveable properties, excepting those with respect to the shares, was
unfair and unjust, even according to the decision mentioned above the partition with respect to the
moveable properties has to be reopened.
17. Moreover in an earlier decision of this Court in Bishundeo v. Seogeni

Rai MANU/SC/0059/1951 : [1951]2SCR548 it was observed:
It is well established that a minor can sue for partition and obtain a decree if his next friend can
show that that is for the minor's benefit. It is also beyond dispute that an adult coparcener can
enforce a partition by suit even when there are minOrs. Even without a suit, there can be a partition
between members of a joint family when one of the members is a minor. In the case of such lastly
mentioned partitions, where a minor can never be able to consent to the same in law, if a minor on
attaining majority is able to show that the division was unfair and unjust, the Court will certainly
set it aside.
In our opinion the present case falls within the ratio laid down by the decision cited above.
18. Apart from that there are numerous authorities which have consistently held that where a
partition is unjust and unfair and detrimental to the interests of the minors the partition should be
reopened irrespective of the question, of bona fide. In Lal Bahadur Singh v. Sispal Singh (1892)
ILP 14 All 498 it was observed that even though the ground of fraud and mistake failed, the partition
which affected the interests of the minors could be reopened. Similarly in Chanvirapa v. Danava
(1895) ILR 19 Bom 593 a Division Bench of the Bom. High Court held that a partition will be
binding on the minors only if it was just and legal, but if it was made and finalised there being no
means of testing the validity of the assets, the partition was not final. The same view was taken in
Maruti v. llama ILR(1897) 21 Bom 333.
19. Thus on a consideration of the authorities discussed above and the law on the Subject the
following propositions emerge:
(1) A partition effected between the members of the Hindu Undivided Family by their own volition
and with their consent cannot be reopen ed, unless it is shown that the same is obtained by fraud,
coercion, misrepresentation or undue influence. In such a case the Court should require a strict
proof of facts because an act inter vivos cannot be lightly set aside.
(2)When the partition is effected between the members of the Hindu Undivided Family which
consists of minor coparceners it is binding on the minors also if it is done in good faith and in bona
fide manner keeping into account the interests of the minOrs.
(3 )Where, however, a partition effected between the members of the Hindu Undivided Family
which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the
minors the partition can certainly be reopened whatever the length of time when the partition took
place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors
and the onus of proof that the partition was just and fair is on the party supporting the partition.
(4)Where there is a partition of immovable and moveable properties but the two transactions are
distinct and separable or have taken place at different times if it is found that only one of these
transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and
fair and to reopen the partition that is unjust and unfair.
The facts of the present case in our opinion, fall squarely within propositions Nos. (3) and (4)
indicated above.
20. In the instant case we find from a perusal of the two schedules 'A' and 'B' of Ext. B-3 that there
has been ex facie a disparity of about Rs. 10.000/- to which must be added Rs. 27,500/- which we
have discussed above. Thus the total disparity comes to Rs. 37,500/- and the share of the minor
plaintiffs would be 2/5th which comes to Rs. 15,000/-. This amount of Rs. 15,000/- should have
been available to the minor plaintiffs as far back as 1940 when the partition was made and they
have been deprived of that amount ever since. We find that in the peculiar facts and circumstances
of the case as already stated it will not be in the interests of the minors nor conducive in the interests
of justice to order the appointment of a Commissioner for reopening the entire partition when the
shares of the minor plaintiffs are easily ascertainable in terms of money and can be quantified. In
these circumstances we think the best course is to determine the money value of the share of the
plaintiffs and to pass a decree for the same which will protect the minors from protracted litigation
which might follow the passing of a preliminary decree. This was the approach made by the High
Court but we do not agree with the amount quantified by it. If we add interest at the rate of 6 per
cent per annum as prayed for in the plaint on the amount of Rs. 15,000/-, the interest calculated at
this rate for 35 years from 1940 to 1975 would come to Rs. 31,500/-. Thus the total amount payable
to the plaintiffs comes to Rs. 46,500/-.
21. We, therefore, allow the appeal in part and modify the decree of the High Court to the extent
that there will be a decree for a sum of Rs. 46,500/- in favour of the plaintiffs appellants which
represents their share of the moveable properties of which they were deprived of. The plaintiffs
would be entitled to future interest at the rate of 6 per cent, per annum till payment. In the
circumstances of the case, there will be no order as to costs. This course, in our opinion, safeguards
the interests of the minors to give them their just due and to protect them from a protracted and
fruitless litigation.
Ram Narain Chaudhury (since Deceased) v. Pan Kuer and Ors., 39 CWN 265
Hon'bleJudges/Coram: Blanesburgh, Thankerton and Shadi Lal, JJ.
CaseNote:
Family - Partition - Whether original Appellant was entitled to succeed to whole estate of R,
who died or otherwise to one half thereof - Held, in this case, it was clear that benefit of
devolution under that provision was confined to "us three men," that was, to three parties to
agreement - It was a condition that party taking benefit of provision should have a living heir,
but no right to take was conferred on such heir - In that view R could claim no right under
agreement, and Appellants' alternative claim also failed - Appeals dismissed with costs and
that decrees of High Court of January 30, 1929, should be affirmed.
JUDGMENT
Thankerton, J.
1. These are consolidated appeals from four decrees of the High Court of Judicature at Patna, dated
January 30, 1929, which reversed two decrees of the Subordinate Judge of Patna, dated February
26, 1927.
2. The original appellant, Ram Narain Chaudry, was plaintiff in the two suits in which these decrees
were made and which were instituted by him in 1924, but he has recently died and the present
appellants are his personal representatives. The main question, which is common to both suits, is
whether the original appellant was entitled to succeed to the whole estate of Ram Kishore Chaudry,
who died on August 27, 1917, or otherwise to one half thereof.
3. The following pedigree shows the relationship of the parties concerned:
4. Gayanandan Chaudry, who was the common ancestor of Ram Narain, the original appellant, and
Ram Kishore, had six sons, of whom the four appearing in the pedigree in 1887 formed a joint
Hindu family. Of the remaining two, who do not so appear, one had separated from the family
before that date and the other had died without issue. In 1887 a partition took place between Dubhri
and Bidhi on the one hand and Lila and Fateh on the other hand.
5. Bidhi died in March, 1895, predeceased by his brother Dubhri. Family disputes resulted in a
partition, the family property being partitioned under an award dated July 14, 1896, in half shares
as between Shankar on the one hand and Lal Narain and Lachmann on the other hand. The joint
family at that time consisted of Shankar and his two sons, Kunj Bihari and the original appellant,
and Lal Narain and Lachmann, along with the latter's son, Kishore, if then in existence. In the view
that their Lordships take, it is unnecessary to decide whether Kishore was then in existence. The
appellants found on an ekrarnama or agreement between Shankar, Lal Narain and Lachmann made
in July, 1896, the genuineness and effect of which is in dispute and which will be referred to later.
6. In 1908 there was a partition between Lal Narain and Lachmann, and Lal Narain died in
September, 1909, leaving his widow, Musammat Pan Kuer, respondent No. 1 in these appeals, and
three daughters, but no son. Lachmann obtained possession of Lal Narain's estate to the exclusion
of the widow and daughters, although he subsequently made some provision for the widow.
Lachmann died in April, 1912, and his estate devolved on his only son, Ram Kishore. As already
stated, the last-named died in August, 1917, and the present dispute arose as to the succession to
his estate. -It is sufficient to state that the three main contestants were Ram Narain, the original
appellant, who claimed the entirety by survivorship under an alleged reunion between him and
Kishore in June, 1917, or, alternatively, a moiety under the agreement of 1896; respondent No. 1,
who claims under the will of Ram Kishore; and the heirs on intestacy of Ram Kishore, Murat Narain
and Govind Prasad, the sons of Lila Chand and Fateh Chand, respectively. The genuineness of Ram
Kishore's will is no longer challenged, and the only question now is whether, its operation is
excluded by an alleged reunion between Ram Narain and Ram Kishore, or, otherwise, by the
provisions of the agreement of 1896.
7. As presented to their Lordships, the appellants' claim was based on two alternative grounds: (i.)
that, in virtue of a reunion between Ram Narain and Ram Kishore, which took place a short time
before his death, their estates had become joint, and that, on Ram Kishore's death without male
issue, Ram Narain became entitled to the whole joint estate by survivance, or, alternatively, (2.)
that he was entitled, under the provisions of the agreement of 1896, to one half of the estate, his
brother being entitled to the other half.
8. On the first point their Lordships agree with the decision of the High Court that, even assuming
the reunion of 1917 to have been established in fact, it was inoperative in law, as Ram Narain and
Ram Kishore were not within the class of relationship to which reunion is limited under the
Mitakshara Law, which rules the present case.
9. The passage in the Mitakshara, ch. 2, Section 9, paras. 2 and 3, is thus translated by Colebrooke:
"2. Effects which have been divided and which are again mixed together are termed reunited. He
to whom such appertain is a reunited parcener. 3. That cannot take place with any person
indifferently, but only with a father, a brother or a paternal uncle, as Brihaspati declares, 'He who
being once separated dwells again through affection with his father, brother or paternal uncle is
termed reunited.' "
10. In Basanta Kumar Singha v. Jogendra Nath Singha (1905) I.L.R. 33 C. 371, 374 the learned
judges note two slight inaccuracies in the translation of para. 3--namely, that there is no word in
the original Sanskrit corresponding to the word "only," and that the concluding words "is termed
reunited" should be literally rendered as "is termed reunited with him." The question in that case,
as in the present case, was whether the express mention of the father, brother and paternal uncle
was restrictive or merely illustrative. It was held that it was restrictive. In the present case the
learned judges of the High Court followed that decision, and their Lordships agree with their
decision and the reasoning on which it is based. In their Lordships' opinion the text of the
Mitakshara is clear and unambiguous and excludes recourse to other authorities, and they would
only add that, in their opinion, para. 2 makes clear that the parties to the reunion must have been
parties to the original partition, and that, when para. 3 states "that cannot take place with any person
indifferently," it is intended to place a further restriction within a still narrower limit than that
prescribed by para. 2. In this view it is difficult to see how the persons expressly named can be
merely illustrative, or, indeed, what class they can illustrate.
11. It follows that the alleged reunion of 1917 could not be valid in law, in respect that Ram Narain
and Ram Kishore were not within the relationship named in para. 3, and it is unnecessary to
consider whether Ram Kishore was alive and a party to the partition of 1896, which would have
been relevant to the limitation imposed by para. 2.
12. The appellants' alternative case raises, primarily, a question of construction of the agreement of
1896; if this question be decided adversely to the appellants, it will be unnecessary to consider any
other questions, such as the genuineness of the agreement.
13. The material passage in the agreement is as follows: "It has been finally settled by all of us
three men that if any of us, God forbid, may become childless, then his properties movable and
immovable or nami and benami shall devolve upon him whose heir will remain alive and any other
third person shall have no right or claim to the said properties. If the person devoid of heir may
have a daughter and if with a view to deprive others of their right he may give the properties to his
daughter by executing any deed in her favour or if he may destroy the properties in any other way
then it shall be regarded as illegal in the court in the face of this ekrarnama. Should our heirs and
representatives in any way act in contravention of the terms of this ekrarnama, it shall be regarded
as wrong and false in the court. It shall be incumbent on our heirs and representatives to stick to
the terms of this ekrarnama." It is common ground that the word "childless" means "sonless," and
the appellants maintain that on the death of Ram Kishore, who was sonless, his estate devolved, in
terms of the above provision, on Ram Narain and his brother Kunj Bihari, both of whom had sons
then living.
14. In their Lordships' opinion, however, it is clear that the benefit of the devolution under that
provision is confined to "us three men," that is, to the three parties to the agreement, who were
Shankar, Lal Narain and Lachmann. It is a condition that the party taking the benefit of the
provision should have a living heir, but no right to take is conferred on such heir. In that view Ram
Narain could claim no right under the agreement, and the appellants' alternative claim also fails.
15. Their Lordships will accordingly humbly advise His Majesty that the appeals should be
dismissed with costs and that the decrees of the High Court of January 30, 1929, should be affirmed.
Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum and Others, AIR 1978
SC 1239
Hon'bleJudges/Coram:Hon'ble Mr. Justice Y.V. Chandrachud, Hon'ble Mr. Justice

P.N. Shingal, Hon'ble Mr. Justice V.D. Tulzapurkar
Summary: Hindu Succession Act, 1956, s. 6, Proviso and expln. 1 - Mode of

determination of widow's interest in coparcenary property - Held, must be
ascertained by adding the share to which she is entitled at a notional partition during
her husband's lifetime and the share which she would get in her husband's interest
upon his death - Appeal Dismissed.
JUDGEMENT
Y. V. Chandrachud, J.
1. It will be easier, with the help of the following pedigree to understand the point
involved in this appeal
2. Khandappa died on June 27, 1960 leaving him surviving his wife Hirabai who is the
plaintiff, two sons Gurupad and Shivapad, who are defendants 1 and 2 respectively, and
three daughters, defendants 3 to 5. On November 6 , 1962 Hirabai filed special civil suit
No. 26 of 1963 in the court of the Joint Civil Judge, Senior Division, Sangli for partition
and separate possession of a 7/24th share in two houses, a land, two shops avoid movables
on the basis that these properties belonged to the joint family consisting of her husband,
herself and their two sons. If a partition were to take place during Khandappa's lifetime
between himself and his two sons, the plaintiff would have got 1/4th share in the joint
family properties, the other three getting 1/4th share each. Khandappa's 1/4th share would
devolve upon his death on six sharers, the plaintiff and her five children, each having a
1/24th share therein. Adding 1/4th and 1/24th, the plaintiff claims a 7/24th share in the
joint family properties. That, in short, is the plaintiffs case. Defendants 2 to 5 admitted the
plaintiff's claim, the suit having H been contested by defendant 1, Gurupad, only. He
contended that the suit properties did not belong to the joint family, that they were
Khandappa's self-requisitions and that, on the date of Khandappa's death in 1960 there
was no joint family in existence. He alleged that Khandappa had effected a partition of the
suit properties between himself and his two sons in December 1952 and December 1954
and that, by a family arrangement dated March 31, 1955 he bad given directions for
disposal of the share which was reserved by him-for himself in the earlier partitions.
There was, therefore, no question of a fresh partition. That, in short, is the case of
defendant 1. The trial court by its judgment dated July 13, 1965 rejected defendant 1's
case that the properties were Khandappa's self-acquisitions and that he had partitioned
them during his lifetime. Upon that finding the plaintiff. became indisputably entitled to a
share in the joint family properties but, following the judgment of the Bombay High Court
in Shiramabai Bhimgonda v. Kalgonda, ((1963) 66 Bom.L.R.351 1963 Indlaw MUM 74)
the learned trial judgelimited that share to 1/24th, refusing to add 1/4th and 1/24th
together. As against that decree, defendant 1 filed first appeal No. 524 of 1966 in the
Bombay High Court, while the plaintiff filed cross-objections. By a judgment dated
March 19, 1975 a Division Bench of the High Court dismissed defendant 1's appeal and
allowed the plaintiff's cross-objections by holding that the suit properties belonged to the
joint family, that there was no prior partition and that the plaintiff is entitled to a 7/24th
share. Defendant I has filed this appeal against the High Court's judgment by special
leave.
3. Another Division Bench of the Bombay High Court in Rangubai Lalji v. Laxman Lalji,
(68 Bom. LR. 74) had already reconsidered and dissented from earlier Division Bench
judgment in Shiramabai Bhimgonda, ((1963) 66 Bom.L.R.351 1963 Indlaw MUM 74) In
these two cases, the judgment of the Bench was delivered by the same learned Judge,
Patel J. On further consideration the learned Judge felt that Shiramabai, ((1963) 66
Bom.L.R.351 1963 Indlaw MUM 74) was not fully argued and was incorrectly decided
and that on a true view of law, the widow's share must be ascertained by adding the share
to which she is entitled at a notional partition during her husband's life time and the share
which she would get in her husband's interest upon his death. In the judgment under
appeal, the High Court has based itself on the judgment in Rangubai Lalji, (68 Bom. LR.
74) endorsing indirectly the view that Shiramabai, ((1963) 66 Bom.L.R.351 1963 Indlaw
MUM 74) was incorrectly decided.
4. Since the view of the High. Court that the suit properties belonged to the joint family
and that there was no prior partition is well-founded and is not seriously disputed, the
decision of this appeal rests on the interpretation of Explanation 1 to s. 6 of the Hindu
Succession Act, (30 of 1956). That section reads thus
"6. When a male Hindu dies after the commencement of this Act, having at the time of his
death an interest in a Mitakshara coparcenary property, his interest in the property shall
devolve by survivorship upon the surviving members of the coparcenary and not in
accordance with this Act :
Provided that, if the deceased had left him surviving a female relative specified in class I
of the Schedule or a male relative specified in that class who claims through such a female
relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve
by testamentary or intestate succession, as- the case may be, under this Act and not by
survivorship.
Explanation I.-For the purposes of this section, the interest of a Hindu Mitakshara
coparcener shall be deemed to be the share in the property that would have been allotted
to him if a partition of the property had taken place immediately before his death,
irrespective of whether he was entitled to claim partition or not.
Explanation 2.-Nothing contained in the proviso to this section shall be construed as
enabling a person who has separated himself from the coparcenary before the death of the
deceased or any of his heirs to claim on intestacy a share in the interest referred to
therein."
5. The Hindu Succession Act came into force on June 17, 1956, Khandappa having died
after the commencement of that Act, to wit in 1960, and since he had at the time of his
death an interest in Mitakshara coparcenary property, the pre-conditions of section 6 are
satisfied and that section is squarely attracted. By the application of the normal rule
prescribed by that section, Khandappa's interest in the coparcenary property would
devolve by survivorship upon the surviving members of the coparcenary and not in
accordance with the provisions of the Act. But, since the widow and daughter are amongst
the female relatives specified in class I of the Schedule to the Act and Khandappa died
leaving behind a widow and daughters, the proviso to section 6 comes into play and the
normal rule is excluded. Khandappa's interest in the coparcenary property would therefore
devolve, according to the proviso, by intestate succession under the Act and not by
survivorship. Testamentary successive is out of the question as the deceased had not made
a testamentary disposition though under the explanation to section 30 of the Act, the
interest of a male Hindu in Mitakshara coparcenary property is capable of being disposed
of by a will or other testamentary disposition. There is thus no dispute that the normal rule
provided for by s. 6 does not apply, that the proviso to that s. is attracted and that the
decision of the appeal must turn on the meaning to be given to Explanation 1 of s. 6. The
interpretation of that Explanation is the subject-matter of acute controversy between the
parties. Before considering the implications of Explanation 1, it is necessary to remember
that what s. 6 deals with is devolution of the interest which a male Hindu has in a
Mitakshare coparcenary property at the time of his death. Since Explanation 1 is intended
to be explanatory of the provisions contained in the s., what the Explanation provides has
to be correlated to the subject matter which the s. itself deals with. In the instant case the
plaintiff's suit, based as it is on the provisions of s. 6, is essentially a claim to obtain a
share in the interest which her husband had at the time of his death in the coparcenary
property. Two things become necessary to determine for the purpose of giving relief to
the plaintiff. One, her share in her husband's share and two, her husband's own share in
the coparcenary property. The proviso to s. 6 contains the formula for fixing the share of
the claimant while Explanation 1 contains a formula for deducing the share of the
deceased. The plaintiff's share, by the application of the proviso, has to be determined
according to the terms of the testamentary instrument, if any, made by the deceased and
since there is none in the instant case, by the application of the rules of intestate
succession contained in s.s 8, 9 and 10 of the Hindu Succession Act. The deceased
Khandappa died leaving behind him two sons, three daughters and a widow. The son,
daughter and a widow are mentioned as heirs in class I of the Schedule and therefore, by
reason of the provisions of s. 8(a) read with the 1st clause of section 9, they take
simultaneously and to the exclusion of other heirs. As between them the two sons, the
three daughters and the widow will take equally, each having one share in the deceased's
property u/s. 10 read with Rules 1 and 2 of that section. Thus, whatever be the share of the
deceased in the coparcenary property, since there are six sharers in that property each
having an equal share, the plaintiff's share therein will be 1/6th.
6. The next step, equally important though not equally easy to work out, is to find out the
share which the deceased had in the coparcenary property because after all, the plaintiff
has a 1/6th interest in that share. Explanation 1 which contains the formula for
determining the share of the deceased creates a fiction by providing that the interest of a
Hindu Mistakshara coparcener shall be deemed to be the share in the property that would
have been allotted to him if a partition of the property had taken place immediately before
his death. One must, therefore, imagine a state of affairs in which a little prior to
Khandappa's death, a partition of the coparcenary property was effected between him and
other members of the coparcenary. Though the plaintiff, not being a coparcener, was not
entitled to demand partition yet, if a partition were to take place between her husband and
his two sons, she would be entitled to receive a share equal to that of a son. (see Mulla's
Hindu Law, Fourteenth Edition, page 403, para 315). In a partition between Khandappa
and his two sons, there would be four sharers in the coparcenary property, the fourth
being Khandappa's wife, the plaintiff. Khandappa would have therefore got a 1/4th share
in the coparcenary property on the hypothesis of a partition between himself and, his sons
Two things are thus clears : One, that in a partition of the coparcenary property
Khandappa would have obtained a 1/4th share and two, that the share of the plaintiff in
the 1/4th share is 1/6th, that is to say, 1/24th. So far there is no difficulty. The question
which poses a somewhat difficult problem is whether the plaintiff's share in the
coparcenary property is only 1/24th, or whether it is 1/4th plus 1/24th, that is to say,
7/24th. The learned trial Judge, relying upon the decision in Shiramabai which was later
overruled by the Bombay High Court, accepted the former contention while the High
Court accepted the latter. The question is which of these two views is to be preferred.
7. We see no justification for limiting the plaintiff's share to 1/24th by ignoring the 1/4th
share which she would have obtained had there been a partition during her husband's life
time between him and his two sons. We think that in overlooking that 1/4th share, one
unwittingly permits one's imagination to boggle under the oppression of the reality that
there was in fact no partition between the plaintiff's husband and his sons. Whether a
partition had actually taken place between the plaintiff's husband and his sons is beside
the point for the purposes of Explanation 1. That Explanation compels the assumption of a
fiction that in fact "a partition of the 'property had taken place", the point of time of the
partition being the one immediately before the death of the person in whose property the
heirs claim a share.
8. The fiction created by Explanation 1 has to be given its due and full effect as the fiction
created by section 18A(9) (b) of the Indian Income-tax Act, 1922, was given by this Court
in Commissioner of Income-tax, Delhi v. S. Teja Singh, ([1959] Supp. 1 S.C.R. 394 1958
Indlaw SC 54). It was held in that case that the fiction that the failure to send an estimate
of tax on income under section 18A(3) is to be deemed to be a failure to send a return,
necessarily involves the fiction that a notice had been issued to the assessee u/s. 22 and
that he had failed to comply with it. In an important aspect, the case before us is stronger
in the matter of working out the fiction because in Teja Singh's case, a missing step had to
be supplied which was not provided for by section 18A(9) If b), namely, the issuance of a
notice u/s. 22 and the failure to comply with that notice. Section 18A(9) (b) stopped at
creating the fiction that when a person fails to send an estimate of tax on his income under
section 18A(3) he shall be deemed to have failed to furnish a return of his income. The
section did not provide further that in the circumstances therein stated, a notice u/s. 22
shall be deemed to have been issued and the notice shall be deemed not to have been
complied with. These latter assumptions in regard to the issuance of the notice u/s. 22 and
its non-compliance bad to be, made for the purpose of giving due and full effect to the
fiction created by section 18A(9) (b). In our case it is not necessary, for the purposes of
working out the fiction, to assume and supply a missing link which is really what was
meant by Lord Asquith in his famous passage in East End Dwellings Co. Ltd. v. Finsbury
Borough Council, ([1952] A.C. 109/132) He said if you are bidden to treat an imaginary
state of affairs as real, you must also imagine as real the consequences and incidents
which, if the putative state of affairs had in fact existed, must inevitably have flowed from
or accompanied it; and if the statute says that you must imagine a certain state of affairs, it
cannot be interpreted to mean that having done so, you must cause or permit your
imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
9. In order to ascertain the share of heirs in the property of a deceased coparcener it is

necessary in the very nature of things, and as the very first step, to ascertain the share, of
the deceased in the coparcenary property. For, by doing that alone can one determine the
extent of the claimant's share. Explanation 1 to section 6 resorts to the simple expedient,
undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener "shall be
deemed to be" the share in the property that would have been allotted to him if a partition
of that property had taken place immediately before his death. What is therefore required
to be assumed is that a partition had in fact taken place between the deceased and his
coparceners immediately before his death. That assumption, once made, is irrevocable. In
other words, the assumption having been made once for the purpose of ascertaining the
share of the deceased in the coparcenary property, one cannot go back on that assumption
and ascertain the share of the heirs without reference to it. The assumption which the
statute requires to be made that a partition had in fact taken place must permeate the entire
process of ascertainment of the ultimate share of the heirs, through all its stages. To make
the assumption at the initial stage for the limited purpose of ascertaining the share of the
deceased and then to ignore it for calculating the quantum of the share of the heirs is truly
to permit one's imagination to boggle. All the consequences which flow from a real
partition have to be logically worked out, which means that the share of the heirs must be
ascertained on the basis that they bad separated from one another and had received a share
in the partition which had taken place during the life time of the deceased. The allotment
of this share is not a processual step devised merely for the purpose of working out some
other conclusion. It has to be- treated and accepted as a concrete reality, something that
cannot be recalled just as a share allotted to a coparcener in an actual partition cannot
generally be recalled. The inevitable corollary of this position is that the heir will get his
or her share in the interest which the deceased bad in the coparcenary property at the time
of his death, in addition to the share which he or she received or must be deemed to have
received in the notional partition. The interpretation which we are placing upon the
provisions of section 6, its proviso and explanation I thereto will further the legislative
intent in regard to the enlargement of the share of female heirs, qualitatively and
quantitatively. The Hindu Law of Inheritance (Amendment) Act, 1929 conferred heirship
rights on the son's daughter, daughter's daughter and sister in all areas where the
Mitakshara law prevailed. S. 3 of the Hindu Women's Rights to Property Act. 1937,
speaking broadly, conferred upon the Hindu widow the right to a share in the joint family
property as also a right to demand partition like any male member of the family. The
Hindu Succession Act, 1956 provides by s. 14(1) that any property possessed by a female
Hindu, whether acquired before or after the commencement of the Act, shall be held by
her as a full owner thereof and not as a limited owner. By restricting the operation of the
fiction created by Explanation I in the manner suggested by the appellant, we shall be
taking a retrograde step, putting back as it were the clock of social reform which has
enabled the Hindu Woman to acquire an equal status with males in matters of property.
Even assuming that two interpretations of Explanation I are reasonably possible, we must
prefer that interpretation which will further the intention of the legislature and remedy the
injustice from which the Hindu women have suffered over the years.
10. We are happy to find that the view which we have taken above has also been taken by
the Bombay High Court in Rangubai Lalji v. Laxman Lalji 1965 Indlaw MUM 1435
(supra) in which Patel, J., very fairly, pronounced his own earlier judgment to the contrary
in Shiramabai Bhimgonda v. Kalgonda (supra) as incorrect. Recently, a Full Bench of that
High Court in Sushilabai Ramachandra Kulkarni v. Narayanrao Gopalrao Deshpande &
Ors.,( A.I.R. 1975 (Bombay) 257 1974 Indlaw MUM 148) the Gujarat High Court in
Vidyaben v. Jagdishchandra N. Bhatt, (A.I.R. 1974 Guj. 23 1972 Indlaw GUJ 45) and the
High Court of Orissa in Ananda v. Haribandhu, (A.I.R. 1967 Orissa 194 1966 Indlaw ORI
61) have taken the same view. The Full Bench of the Bombay High Court in Sushilabai
1974 Indlaw MUM 148 (supra) has considered exhaustively the various decisions bearing
on the point and we endorse the analysis contained in the judgment of Kantawala C. J.,
who has spoken for the Bench. For these reasons we confirm the judgment of the High
Court and, dismiss the appeal with costs.
Wealth Tax Commissioner v. Chander Sen, AIR 1986 SC 1753
Summary: When property devolves under Section 8 of the Hindu Succession Act,
1956, it is separate property in the hands of the hiers rather that joint family
property.
Hon'ble Judges: R.S. Pathak and Sabyasachi Mukharji, JJ.
JUDGMENT
Sabyasachi Mukharji, J.
1. These appeals arise by special leave from the decision of the High Court of Allahabad
dated 17th August, 1973. Two of these appeals are in respect of assessment years 1966-67
and 1967-68 arising out of the proceedings under the Wealth Tax Act, 1957. The
connected reference was under the Income-Tax Act, 1961 and related to the assessment
year 1968-69. A common question of law arose in all these cases and these were disposed
of by the High Court by a common judgment.
2. One Rangi Lal and his son Chander Sen constituted a Hindu undivided family. This
family had some immovable property and the business carried on in the name of Khushi
Ram Rangi Lal. On October 10, 1961, there was a partial partition in the family by which
the business was divided between the father and the son, and thereafter, it was carried on
by a partnership consisting of the two. The firm was assessed to income-tax as a registered
firm and the two partners were separately assessed in respect of their share of income. The
house property of the family continued to remain joint. On July 17, 1965, Rangilal died
leaving behind his son, Chander Sen, and his grandsons, i.e. the sons of Chander Sen. His
wife and mother predeceased him and he had no other issue except Chander Sen. On his
death there was a credit balance of Rs. 1,85,043 in his account in the books of the firm.
For the assessment year 1966-67 (valuation date October 3, 1965), Chander Sen, who
constituted a joint family with his own sons, filed a return of his net wealth. The return
included the property of the family which on the death of Rangi Lal passed on to Chander
Sen by survivorship and also the assets of the business which devolved upon Chander Sen
on the death of his father. The sum of Rs. 1,85,043 standing to the credit of Rangi Lal was
not included in the net wealth of the family of Chander Sen (hereinafter referred to as 'the
assessee-family') on the ground that this amount devolved on Chander Sen in his
individual capacity and was not the property of the assessee-family. The Wealth-tax
Officer did not accept this contention and held that the sum of Rs. 1,85,043 also belonged
to the assessee-family.
3. At the close of the previous year ending on October 22, 1962, relating to the assessment
year 1967-68, a sum of Rs. 23,330 was credited to the account of late Rangi Lal on
account of interest accruing on his credit balance. In the proceedings under the Income-tax
Act for the assessment year 1967-68, the sum of Rs. 23,330 was claimed as deduction. It
was alleged that interest was due to Chander Sen in his individual capacity and was an
allowable deduction in the computation of the business income of the assessee-faimly. At
the end of the year the credit balance in the account of Rangi Lal stood at Rs. 1,82,742
which was transferred to the account of Chander Sen. In the wealth-tax assessment for the
assessment year 1967-68, it was claimed, as in the earlier year, that the credit balance in
the account of Rangi Lal belonged to Chander Sen in his individual capacity and not to the
assessee-family. The Income-tax Officer who completed the assessment disallowed the
claim relating to interest on the ground that it was a payment made by Chander Sen to
himself. Likewise, in the wealth tax assessment, the sum of Rs. 1,82,742 was included by
the Wealth-tax Officer in the net wealth of the assessee-family. On appeal the Appellate
Assistant Commissioner of Income-tax accepted the assessee's claim in full. He held that
the capital in the name of Rangi Lal luded in the wealth of the assessee-family. He also
directed that in the income-tax assessment the sum of Rs. 23,330 on account of interest
should be allowed as deduction. The revenue felt aggrieved and filed three appeals before
the Income-tax Appellate Tribunal, two against the assessments under the Wealth-tax Act
for the assessment years 1966-67 and 1967-68 and one against the assessment under
Income-tax Act for the assessment year 1967-68. The Tribunal dismissed the revenue's
appeals.
4. The following question was referred to the High Court for its opinion:
Whether, on the facts and in the circumstances of the case, the conclusion of the Tribunal
that the sum of Rs. 1,85,043 and Rs. 1,82,742 did not constitute the assets of the assessee-
Hindu undivided family is correct?
5. Similarly in the reference under the Income-tax Act, the following question was
referred:
Whether, on the facts and in the circumstances of the case, the interest of Rs. 23,330 is
allowable deduction in the computation of the business profits of the assessee joint
family?
6. The answer to the questions would depend upon whether the amount standing to the
credit of late Rangi Lal was inherited, after his death, by Chander Sen in his individual
capacity or as a Karta of the assessee joint family consisting of himself and his sons.
7. The amount in question represented the capital allotted to Rangi Lal on partial partition
and accumulated profits earned by him as his share in the firm. While Rangi Lal was alive
this amount could not be said to belong to any joint Hindu family and qua Chander Sen
and his sons, it was the separate property of Rangi Lal. On Rangi Lal's death the amount
passed on to his son, Chander Sen, by inheritance. The High Court was of the opinion that
under the Hindu Law when a son inherited separate and self-acquired property of his
father, it assumed the character of joint Hindu family property in his hands qua the
members of his own family. But the High Court found that this principle has been
modified by Section 8 of the Hindu Succession Act, 1956. Section 8 of the said Act
provides, inter alia, that the property of a male Hindu dying intestate devolved according
to the provisions of that Chapter in the Act and indicates further that it will devolve first
upon the heirs being the relatives specified in class I of the Schedule. Heirs in the
Schedule Class I includes and provides firstly son and thereafter daughter, widow and
others. It is not necessary in view of the facts of this case to deal with other clauses
indicated in Section 8 or other heirs mentioned in the Schedule. In this case as the High
Court noted that the son, Chander Sen was the only heir and therefore the property was to
pass to him only.
8. The High Court in the judgment under appeal relied on a bench decision of the said
High Court rendered previously. Inadvertently, in the judgment of the High Court, it had
been mentioned that the judgment was in Khudi Ram Laha v. Commissioner of Income-
tax U.P. MANU/UP/0260/1966 : [1968]67ITR364(All) . but that was a case which dealt
with entirely different problem. The decision which the High Court had in mind and on
which in fact the High Court relied was a decision in the case of Commissioner of
Income-tax, U.P. v. Ram Rakshpal, Ashok Kumar MANU/UP/0255/1966 :
[1968]67ITR164(All) . In the said decision the Allahabad High Court held that in view of
the provisions of the Hindu Succession Act, 1956, the income from assets inherited by a
son from his father from whom he had separated by partition could not be assessed as the
income of the Hindu undivided family of the son. The High Court relied on the
commentary in Mulla's Hindu Law, Thirteenth Edition page 248. The High Court also
referred to certain passages from Dr. Derret's "Introduction to Modern Hindu Law"
(paragraph 411, at page 252). Reliance was also placed on certain observations of this
Court and the Privy Council as well as on Mayne's 'Hindu Law'. After discussing all these
aspects the Court came to the conclusion that the position of the Hindu Law was that
partition took away by way of coparcenary the character of coparcener property which
meant that the share of another coparcener upon the divisions although the property
obtained by a coparcener by a partition continued to be coparcenary property for him and
his unseparated issue. In that case what had happened was one Ram Rakshpal and his
father, Durga Prasad, constituted a Hindu undivided family which was assessed as such.
Ram Rakshpal separated from his father by partition on October 11, 1948. Thereafter Ram
Rakshpal started business of his own, income whereof was assessed in the hands of the
assessee-family. Shri Durga Prasad also started business of his own after partition in the
name and style of M/s. Murlidhar Mathura Prasad which was carried on by him till his
death. Durga Prasad died on March 29, 1958 leaving behind him his widow, Jai Devi, his
married daughter, Vidya Wati and Ram Rakshpal and Ram Rakshpal's son, Ashok Kumar,
as his survivOrs. The assets left behind by Durga Prasad devolved upon three of them in
equal shares by succession under the Hindu Succession Act, 1956. Vidya Wati took away
her 1/3rd share, while Jai Devi and Shri Ram Rakshpal continued the aforesaid business
inherited by them in partnership with effect from April, 1, 1958 under a partnership deed
dated April 23, 1958. The said firm was granted registration for the assessment year 1958-
59. The share of profit of Shri Ram Rakshpal for the assessment year under reference was
determined at Rs. 4,210. The assessee-family contended before the Income-tax Officer
that this profit was the personal income of Ram Rakshpal and could not be taxed in the
hands of the Hindu undivided family of Ram Rakshpal, and held that Ram Rakshpal
contributed his ancestral funds in the partnership business of Murli Dhar Mathura Prasad
and that, hence, the income therefrom was taxable in the hands of the assessee family. The
High Court finally held on these facts in C.I.T v. Ram Rakshpal (supra) that the assets of
the business left by Durga Prasad in the hands of Ram Rakshpal would be governed by
Section 8 of the Hindu Succession Act, 1956.
9. The High Court in the Judgment under appeal was of the opinion that the facts of this
case were identical with the facts in the case of Commissioner of Income-tax, U.P. (supra)
and the principles applicable would be the same. The High Court accordingly answered
the question in the affirmative and in favour of the assessee so far as assessment of
wealth-tax is concerned. The High Court also answered necessarily the question on the
income-tax Reference affirmatively and in favour of the assessee.
10. The question here, is, whether the income or asset which a son inherits from his father
when separated by partition the same should be assessed as income of the Hindu
undivided family of son or his individual income. There is no dispute among the
commentators on Hindu Law nor in the decisions of the Court that under the Hindu Law
as it is, the son would inherit the same as karta of his own family. But the question, is,
what is the effect of Section 8 of the Hindu Succession Act, 1956? The Hindu Succession
Act, 1956 lays down the general rules of succession in the case of males. The first rule is
that the property of a male Hindu dying intestate shall devolve according to the provisions
of Chapter II and class I of the Schedule provides that if there is a male heir of class I then
upon the heirs mentioned in class I of the Schedule. Class I of the Schedule reads as
follows:
Son; daughter; widow; mother; son of a pre-deceased son; daugther of a predeceased son;
son of a pre-deceased daughter, daughter of a pre-deceased daughter; widow of a pre-
deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased
son of a predeceased son; widow of a pre-deceased son of a predeceased son.
11. The heirs mentioned in class I of the Schedule are son, daughter etc. including the son
of a pre-deceased son but does not include specifically the grandson, being a son of a son
living. Therefore, the short question, is, when the son as heir of class I of the Schedule
inherits the property, does he do so in his individual capacity or does he do so as karta of
his own undivided family?
12. Now the Allahabad High Court has noted that the case of Commissioner of Income-
tax, U.P. v. Ram Rakshpal, Ashok Kumar (supra) after referring to the relevant authorities
and commentators had observed at page 171 of the said report that there was no scope for
consideration of a wide and general nature about the objects attempted to be achieved by a
piece of legislation when interpreting the clear words of the enactment. The learned judges
observed referring to the observations of Mulla's Commentary on Hindu Law, and the
provisions of Section 6 of the Hindu Succession Act that in the case of assets of the
business left by father in the hands of his son will be governed by Section 8 of the Act and
he would take in his individual capacity. In this connection reference was also made
before us to Section 4 of the Hindu Succession Act. Section 4 of the said Act provides for
overriding effect of Act. Save as otherwise expressly provided in the Act, any text, rule or
interpretation of Hindu Law or any custom or usage as part of that law in force
immediately before the commencement of this Act shall cease to have effect with respect
to any matter for which provision is made in the Act and any other law in force
immediately before the commencement of the Act shall cease to apply to Hindus in so far
it is inconsistent with any of the provisions contained in the Act. Section 6 deals with
devolution of interest in coparcenary property and it makes it clear that when a male
Hindu dies after the commencement of the Act having at the time of his death an interest
in a Mitakshara coparcenary property, his interest in the property shall devolve by
survivorship upon the surviving members of the coparcenary and not in accordance with
the Act. The proviso indicates that if the deceased had left him surviving a female relative
specified in class I of the Schedule or a male relative specified in that class who claims
through such female relative, the interest of the deceased in Mitakshara coparcenary
property shall devolve by testamentary or intestate succession, as the case may be, under
this Act and not by survivorship.
13. Section 19 of the said Act deals with the mode of succession of two or more heirs. If
two or more heirs succeed together to the property of an interstate, they shall take the
property per capita and not per stripes and as tenants-in-common and not as joint tenants.
14. Section 30 stipulates that any Hindu may dispose of by will or other testamentary
disposition any property, which is capable of being so disposed of by him in accordance
with the provisions of the Indian Succession Act, 1925.
15. It is clear that under the Hindu law, the moment a son is born, he gets a share in the
father's property and becomes part of the comparcenary. His right accrues to him not on
the death of the father or inheritance from the father but with the very fact of his birth.
Normally, therefore whenever the father gets a property from whatever source from the
grandfather or from any other source, be it separated property or not, his son should have a
share in that and it will become part of the joint family of his son and grandson and other
members who form joint Hindu family with him. But the question is; is the position
affected by Section 8 of the Succession Act, 1956 and if so, how? The basic argument is
that Section 8 indicates the heirs in respect of certain property and class I of the heirs
includes the son but not the grandson. It includes, however, the son of the predeceased
son. It is this position which has mainly induced the Allahabad High Court in the two
judgments, we have noticed, to take the view that the income from the assets inherited by
son from his father from whom he has separated by partition can be assessed as income of
the son individually. Under Section 8 of the Hindu Succession Act, 1956 the property of
the father who dies intestate devolves on his son in his individual capacity and not as karta
of his own family. On the other hand, the Gujarat High Court has taken the contrary view.
16. In Commissioner of Income-tax, Gujarat-Is. Dr. Babubhai Mansukhbhai (Deceased)

MANU/GJ/0028/1975 : [1977]108ITR417(Guj) the Gujarat High Court held that in the
case of Hindus governed by the Mitakshara law, where a son inherited the self-acquired
property of his father, the son took it as the joint family property of himself and his son
and not as his separate property. The correct status for the assessment to income-tax of the
son in respect of such property was as representing his Hindu undivided family. The
Gujarat High Court could not accept the view of the Allahabad High Court mentioned
hereinbefore. The Gujarat High Court dealt with the relevant provisions of the Act
including Section 6 and referred to Mulla's Commentary and some other decisions.
17. Before we consider this question further, it will be necessary to refer to the view of the
Madras High Court. Before the full bench of Madras High Court in Additional
Commissioner of Income-tax, Madras v. P.L. Karappan Chettiar MANU/TN/0348/1979 :
[1978]114ITR523(Mad) , this question arose. There, on a partition effected on March 22,
1954 in the Hindu undivided family consisting of P, his wife, their sons, K and their
daughter-in-law, P was allotted certain properties as and for this share and got separated.
The partition was accepted by the revenue under Section 25A of the Indian Income-tax
Act, 1922. K along with his wife and their subsequently born children constituted a Hindu
undivided family which was being assessed in that status. P died on September 9, 1963,
leaving behind his widow and divided son, K, who was the karta of his Hindu undivided
family, as his legal heirs and under Section 8 of the Hindu Section Act, 1956, the Madras
High Court held, that these two persons succeeded to the properties left by the deceased,
P, and divided the properties among themselves. In the assessment made on the Hindu
undivided family of which K was the karta, for the assessment year 1966-67 to 1970-71,
the Income-tax Officer included for assessment the income received from the properties
inherited by K from his father, P. The inclusion was confirmed by the Appellate Assistant
Commissioner but, on further appeal, the Tribunal held that the properties did not form
part of the joint family properties and hence the income therefrom could not be assessed in
the hands of the family. On a reference to the High Court at the instance of the revenue, it
was held by the Full bench that under the Hindu law, the property of a male Hindu
devolved on his death on his sons and grandsons as the grandsons also have an interest in
the property. However, by reason of Section 8 of the Hindu Succession Act, 1956, the
son's son gets excluded and the son alone inherits the property to the exclusion of his son.
No interest would accrue to the grandson of P in the property left by him on his death. As
the effect of Section 8 was directly derogatory of the law established according to Hindu
law, the statutory provision must prevail in view of the unequivocal intention in the statute
itself, expressed in Section 4(1) which says that to the extent to which provisions have
been made in the Act, those provisions shall override the established provisions in the
texts of Hindu law. Accordingly, in that case, K alone took the properties obtained by his
father, P, in the partition between them, and irrespective of the question as to whether it
was ancestral property in the hands of K or not, he would exclude his son. Further, since
the existing grandson at the time of the death of the grandfather had been excluded, an
after-born son of the son will also not get any interest which the son inherited from the
father. In respect of the property obtained by K on the death of his father, it is not possible
to visualise or envisage any Hindu undivided family. The High Court held that the
Tribunal was, therefore, correct in holding that the properties inherited by K from his
divided father constituted his separate and individual properties and not the properties of
the joint family consisting of himself, his wife, sons and daughters and hence the income
therefrom was not assessable in the hands of the assessee-Hindu undivided family. This
view is in consonance with the view of the Allahabad High Court noted above.
18. The Madhya Pradesh High Court had occasion to consider this aspect in
Shrivallabhdas Modani v. Commissioner of Income-Tax, M.P.-I MANU/MP/0097/1981 :
[1982]138ITR673(MP) and the Court held that if there was no coparcenary subsisting
between a Hindu and his sons at the time of death of his father, property received by him
on his father's death could not be so blended with the property which had been allotted to
his sons on a partition effected prior to the death of the father. Section 4 of the Hindu
Succession Act, 1956, clearly laid down that "save as expressly provided in the Act, any
text, rule or interpretation of Hindu law or any custom or usage as part of that law in force
immediately before the commencement of the Act should cease to have effect with respect
to any matter for which provision was made in the Act". Section 8 of the Hindu
Succession Act, 1956 as noted before, laid down the scheme of succession to the property
of a Hindu dying intestate. The schedule classified the heirs on whom such property
should devolve. Those specified in class I took simultaneously to the exclusion of all other
heirs. A son's son was not mentioned as an heir under class I of the schedule, and,
therefore, he could not get any right in the property of his grandfather under the provision.
The right of a son's son in his grandfather's property during the lifetime of his father which
existed under the Hindu law as in force before the Act, was not saved expressly by the
Act, and therefore, the earlier interpretation of Hindu law giving a right by birth in such
property "ceased to have effect". The Court further observed that in construing a
Codification Act, the law which was in a force earlier should be ignored and the
construction should be confined to the language used in the new Act. The High Court felt
that so construed, Section 8 of the Hindu Succession Act should be taken as a self-
contained provision lying down the scheme of devolution of the property of a Hindu dying
intestate. Therefore, the property which devolved on a Hindu on the death of his father
intestate after the coming into force of the Hindu Succession Act, 1956, did not constitute
HUF property consisting of his own branch including his sons. It followed the full bench
decision of the Madras High Court as we]] as the view of the Allahabad High Court in the
two cases noted above including the judgment under appeal.
19. The Andhra Pradesh High Court in the case of Commissioner of Wealth-Tax, A.P.-II
v. Mukundgirji MANU/AP/0044/1983 : [1983]144ITR18(AP) had also to consider the
aspect. It held that a perusal of the Hindu Succession Act, 1956 would disclose that
Parliament wanted to make a clean break from the old Hindu law in certain respects
consistent with modern and egalitarian concepts. For the sake of removal of any doubts,
therefore, Section 4(1)(a) was inserted. The High Court was of the opinion that it would,
therefore, not be consistent with the spirit and object of the enactment to strain provisions
of the Act to accord with the prior notions and concepts of Hindu law. That such a course
was not possible was made clear by the inclusion of females in class I of the Schedule, and
according to the Andhra Pradesh High Court, to hold that the property which devolved
upon a Hindu under Section 8 of the Act would be HUF property in his hands vis-a-vis his
own sons would amount to creating two classes among the heirs mentioned in class I, viz.,
the male heirs in whose hands it would be joint family property vis-a-vis their sons; and
female heirs with respect to whom no such concept could be applied or contemplated. The
intention to depart from the pre-existing Hindu law was again made clear by Section 19 of
the Hindu Succession Act which stated that two or more heirs succeed together to the
property of an intestate, they should take the property as tenants-in-common and not as
joint tenants and according to the Hindu law as obtained prior to Hindu Succession Act
two or more sons succeeding to their father's property took a joint tenants and not tenants-
in-common. The Act, however, has chosen to provide expressly that they should take as
tentants-in-common. Accordingly the property which devolved upon heirs mentioned in
class I of the Schedule under Section 8 constituted the absolute properties and his sons
have no right by birth in such properties. This decision, however, is under appeal by
certificate to this Court. The aforesaid reasoning of the High Court appearing at pages 23
to 26 of Justice Reddy's view in 144 I.T.R. appears to be convincing.
20. We have noted the divergent views expressed on this aspect by the Allahabad High
Court, Full Bench of the Madras High Court, Madhya Pradesh and Andhra Pradesh High
Courts on one side and the Gujarat High Court on the other.
21. It is necessary to bear in mind the Preamble to the Hindu Succession Act, 1956. The
Preamble states that it was an Act to amend and codify the law relating to intestate
succession among Hindus.
22. In view of the preamble to the Act, i.e., that to modify where necessary and to codify
the law, in our opinion it is not possible when Schedule indicates heirs in class I and only
includes son and does not include son's son but does include son of a predeceased son, to
say that when son inherits the property in the situation contemplated by Section 8 he takes
it as karta of his own undivided family. The Gujarat High Court's view noted above, if
accepted, would mean that though the son of a predeceased son and not the son of a son
who is intended to be excluded under Section 8 to inherit, the latter would by applying the
old Hindu law get a right by birth of the said property contrary to the scheme outlined in
Section 8. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it
clear by Section 4 that one should look to the Act in case of doubt and not to the pre-
existing Hindu law. It would be difficult to hold today the property which devolved on a
Hindu under Section 8 of the Hindu Succession would be HUF in his hand vis-a-vis his
own son; that would amount to creating two classes among the heirs mentioned in class I,
the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and
female heirs with respect to whom no such concept could be applied or contemplated. It
may be mentioned that heirs in class I of Schedule under Section 8 of the Act included
widow, mother, daughter of predeceased son etc.
23. Before we conclude we may state that we have noted the observations of Mulla's
Commentary on Hindu law 15th Edn. dealing with Section 6 of the Hindu Succession Act
at page 924-26 as well as Mayne's on Hindu Law, 12th Edition pages 918-919.
24. The express words of Section 8 of The Hindu Succession Act, 1956 cannot be ignored
and must prevail. The preamble to the Act reiterates that the Act is, inter alia, to 'amend'
the law, with that background the express language which excludes son's son but included
son of a predeceased son cannot be ignored.
25. In the aforesaid light the views expressed by the Allahabad High Court, the Madras
High Court, Madhya Pradesh High Court, and the Andhra Pradesh High Court, appear to
us to be correct. With respect we are unable to agree with the views of the Gujarat High
Court noted hereinbefore.
26. In the premises the judgment and order of the Allahabad High Court under appeal is
affirmed and the appeals Nos. 1668-1669 of 1974 are dismissed with costs. Accordingly
Appeal No. 1670 of 1974 in Income-tax Reference which must follow as a consequence in
view of the findings that the sums standing to the credit of Rangi Lal belongs to Chander
Sen in his individual capacity and not the joint Hindu family, the interest of Rs. 23,330
was an allowable deduction in respect of the income of the family from the business. This
appeal also fails and is dismissed with costs.
27. The Special Leave Petition No. 5327 of 1978 must also fail ana is dismissed. There
will be no order as to costs of this.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2360_of 2016

[ARISING OUT OF SLP (CIVIL) NO.6036 OF 2014]
UTTAM …APPELLANT
VERSUS
SAUBHAG SINGH & ORS. …RESPONDENTS
JUDGMENT
R.F. Nariman, J.
1. Leave granted.
2. The present appeal is by the plaintiff who filed a suit for
partition, being Suit No.5A of 1999 before the Second Civil
Judge, Class II Devas, Madhya Pradesh, dated 28.12.1998, in
which the first four defendants happened to be his father
(defendant No.3), and his father’s three brothers i.e. defendant
Nos. 1,2 and 4. He claimed a 1/8 th share in the suit property on
the footing that the suit property was ancestral property, and
that, being a coparcener, he had a right by birth in the said
Page 1
property in accordance with the Mitakshara Law. A joint written
statement was filed by all four brothers, including the plaintiff’s
father, claiming that the suit property was not ancestral
property, and that an earlier partition had taken place by which
the plaintiff’s father had become separate. The trial court, by its
order dated 20.12.2000 decreed the plaintiff’s suit holding that it
was admitted by DW.1 Mangilal that the property was indeed
ancestral property, and that, on the evidence, there was no
earlier partition of the said property, as pleaded by the
defendants in their written statements.
3. The first Appellate Court, by its judgment dated
12.1.2005, confirmed the finding that the property was ancestral
and that no earlier partition between the brothers had in fact
taken place. However, it held that the plaintiff’s grandfather,
one Jagannath Singh having died in 1973, his widow Mainabai
being alive at the time of his death, the said Jagannath Singh’s
share would have to be distributed in accordance with Section 8
of the Hindu Succession Act, 1956 as if the said Jagannath
Singh had died intestate, and that being the case, once Section
8 steps in, the joint family property has to be divided in
Page 2
accordance with rules of intestacy and not survivorship. This
being so, no joint family property remained to be divided when
the suit for partition was filed by the plaintiff, and that since the
plaintiff had no right while his father was alive, the father alone
being a Class I heir (and consequently the plaintiff not being a
Class I heir), the plaintiff had no right to sue for partition, and
therefore the suit was dismissed and consequently the first
appeal was allowed.
4. Following the same line of reasoning and several
judgments of this Court, the High Court in second Appeal
dismissed the said appeal, holding:-
“15. Thus in view of the provisions contained in

Sections 4,6, 8 and Schedule of the Act as well as
the law settled by the aforesaid judgments, it is
clear that after coming into force of the Act
grand-son has no birth right in the properties of
grand-father and he cannot claim partition during
lifetime of his father.
16. In the present case, it is undisputed that

Jagannath had died in the year 1973, leaving
behind respondents No. 1 to 4 i.e. his four sons
covered by Class I heirs of the schedule therefore,
the properties had devolved upon them when
succession had opened on the death of Jagannath.
It has also been found proved that no partition had
taken place between respondents No. 1 to 4. The
appellant who is the grand son of Jagannath is not
Page 3
entitled to claim partition during the lifetime of his
father Mohan Singh in the properties left behind by
Jagannath since the appellant has no birth right in
the suit properties.
17. In view of the aforesaid, the substantial

questions of law are answered against the appellant
by holding that the first appellate court has
committed no error in dismissing the suit for
partition filed by the appellant referring to Section 8
of the Act and holding that during the lifetime of
Mohan Singh, the appellant has no right to get the
suit property partitioned.”
5. It is this judgment that has been challenged before us in
appeal.
6. Shri Sushil Kumar Jain, learned senior advocate
appearing on behalf of the appellant, took us through various
provisions of the Hindu Succession Act, and through several
judgments of this Court, and contended that Section 6, prior to
its amendment in 2005, would govern the facts of this case. He
conceded that as Jagannath Singh’s widow was alive in 1973 at
the time of his death, the case would be governed by the
proviso to Section 6, and that therefore the interest of the
deceased in the Mitakshara coparcenary property would
devolve by intestate succession under Section 8 of the said Act.
However, he argued that it is only the interest of the deceased
Page 4
in such coparcenary property that would devolve by intestate
succession, leaving the joint family property otherwise intact.
This being the case, the plaintiff had every right to sue for
partition while his father was still alive, inasmuch as, being a
coparcener and having a right of partition in the joint family
property, which continued to subsist as such after the death of
Jagannath Singh, the plaintiff’s right to sue had not been taken
away. He went on to argue that Section 8 of the Act would not
bar such a suit as it would apply only at the time of the death of
Jagannath Singh i.e. the grandfather of the plaintiff in 1973 and
not thereafter to non suit the plaintiff, who as a living
coparcener of joint family property, was entitled to a partition
before any other death in the joint family occurred. He also
argued that the Hindu Succession Act only abrogated the Hindu
Law to the extent indicated, and that Sections 6 and 8 have to
be read harmoniously, as a result of which the status of joint
family property which is recognized under Section 6 cannot be
said to be taken away upon the application of Section 8 on the
death of the plaintiff’s grandfather in 1973.
Page 5
7. Shri Niraj Sharma, learned counsel appearing on behalf
of the respondents, countered these submissions, and also
referred to various provisions of the Hindu Succession Act and
various judgments of this Court to buttress his submission that
once Section 8 gets applied by reason of the application of the
proviso to Section 6, the joint family property ceases to be joint
family property thereafter, and can only be succeeded to by
application of either Section 30 or Section 8, Section 30
applying in case a will had been made and Section 8 applying
in case a member of the joint family dies intestate. He,
therefore, supported the judgment of the High Court and
strongly relied upon two judgments in particular, namely
Commissioner of Wealth Tax, Kanpur and Others v.
Chander Sen and Others, (1986) 3 SCC 567, and Bhanwar
Singh v. Puran, (2008) 3 SCC 87, to buttress his submission
that once Section 8 is applied to the facts of a given case, the
property thereafter ceases to be joint family property, and this
being the case, no right to partition a property which is no
longer joint family property continues to subsist in any member
of the coparcenary.
Page 6
8. Having heard learned counsel for the parties, it is
necessary to set out the relevant provisions of the Hindu
Succession Act, 1956. The Act, as its long title states, is an Act
to amend and codify the law relating to intestate succession
among Hindus. Section 4 overrides the Hindu Law in force
immediately before the commencement of this Act insofar as it
refers to any matter for which provision is made by the Act.
Section 4 reads as follows:
“4. Overriding effect of Act.—Save as otherwise

expressly provided in this Act,—
(a) any text, rule or interpretation of Hindu Law or

any custom or usage as part of that law in force
immediately before the commencement of this Act,
shall cease to have effect with respect to any matter
for which provision is made in this Act;
(b) any other law in force immediately before the

commencement of this Act shall cease to apply to
Hindus in so far as it is inconsistent with any of the
provisions contained in this Act.”
Section 6 prior to its amendment in 2005 reads as follows:
“6. Devolution of interest in coparcenary

property.—When a male Hindu dies after the
commencement of this Act, having at the time of his
death an interest in a Mitakshara coparcenary
property, his interest in the property shall devolve by
Page 7
survivorship upon the surviving members of the
coparcenary and not in accordance with this Act :
Provided that, if the deceased had left him surviving
a female relative specified in Class I of the
Schedule or a male relative specified in that class
who claims through such female relative, the
interest of the deceased in the Mitakshara
coparcenary property shall devolve by testamentary
or intestate succession, as the case may be, under
this Act and not by survivorship.
Explanation 1.—For the purposes of this section,

the interest of a Hindu Mitakshara coparcener shall
be deemed to be the share in the property that
would have been allotted to him if a partition of the
property had taken place immediately before his
death, irrespective of whether he was entitled to
claim partition or not.
Explanation 2.—Nothing contained in the proviso to

this section shall be construed as enabling a person
who had separated himself from the coparcenary
before the death of the deceased or any of his heirs
to claim on intestacy a share in the interest referred
to therein.”
It is common ground between the parties that since the present
suit was filed only in 1998 and the decree in the said suit was
passed on 20.12.2000, that the amendment to Section 6, made
in 2005, would not govern the rights of the parties in the present
case. This becomes clear from a reading of the proviso (i) to
Section 6 of the amended provision which states as follows:-
Page 8
“Provided that nothing contained in this sub-section
shall affect or invalidate any disposition or alienation
including any partition or testamentary disposition of
property which had taken place before the 20th day
of December, 2004.”
The explanation to this Section also states thus:
“Explanation.—For the purposes of this section

“partition” means any partition made by execution of
a deed of partition duly registered under the
Registration Act, 1908 (16 of 1908) or partition
effected by a decree of a court.”
From a reading of the aforesaid provision it becomes clear that
a partition having been effected by a court decree of
20.12.2000, which is prior to 9th September, 2005, (which is the
date of commencement of the Amending Act), would not be
affected.
9. The next important Section from our point of view is
Section 8, which reads as follows:-
“8. General rules of succession in the case of

males.—The property of a male Hindu dying
intestate shall devolve according to the provisions of
this Chapter —
(a) firstly, upon the heirs, being the relatives
specified in Class I of the Schedule;
(b) secondly, if there is no heir of Class I, then upon
the heirs, being the relatives specified in Class II of
the Schedule;
Page 9
(c) thirdly, if there is no heir of any of the two
classes, then upon the agnates of the deceased;
and
(d) lastly, if there is no agnate, then upon the
cognates of the deceased.”
THE SCHEDULE
Class I
Son; daughter; widow; mother; son of a
pre-deceased son; daughter of a pre-deceased son;
son of a pre-deceased daughter; daughter of a
pre-deceased daughter; widow of a pre-deceased
son; son of a pre-deceased son of a pre-deceased
son; daughter of a pre-deceased son of a
pre-deceased son; widow of a pre-deceased son of
a pre-deceased son, son of a pre-deceased
daughter of a pre-deceased daughter; daughter of a
pre-deceased daughter of a pre-deceased
daughter; daughter of a pre-deceased son of a
pre-deceased daughter; daughter of a
pre-deceased daughter of a pre-deceased son.”
10. Also of some importance are Sections 19 and 30 of the
said Act which read as follows:-
“19. Mode of succession of two or more heirs.—

If two or more heirs succeed together to the
property of an intestate, they shall take the property,
—
(a) save as otherwise expressly provided in this Act,
per capita and not per stirpes; and
(b) as tenants-in-common and not as joint tenants.
10
Page 10
30. Testamentary succession.— Any Hindu may
dispose of by will or other testamentary disposition
any property, which is capable of being so disposed
of by him or by her, in accordance with the
provisions of the Indian Succession Act, 1925 (39 of
1925), or any other law for the time being in force
and applicable to Hindus.
Explanation.—The interest of a male Hindu in a

Mitakshara coparcenary property or the interest of a
member of a tarwad, tavazhi, illom,
kutumba or kavaru in the property of the tarwad,
tavazhi, illom, kutumba or kavaru shall,
notwithstanding anything contained in this Act, or in
any other law for the time being in force, be deemed
to be property capable of being disposed of by him
or by her within the meaning of this section.”
11. Before analysing the provisions of the Act, it is necessary
to refer to some of the judgments of this Court which have
dealt, in particular, with Section 6 before its amendment in
2005, and with Section 8. In G.K. Magdum v. H.K. Magdum,
(1978) 3 S.C.R. 761, the effect of the old Section 6 was gone
into in some detail by this Court. A Hindu widow claimed
partition and separate possession of a 7/24 th share in joint
family property which consisted of her husband, herself and
their two sons. If a partition were to take place during her
husband’s lifetime between himself and his two sons, the widow
would have got a 1/4th share in such joint family property. The
11
Page 11
deceased husband’s 1/4th share would then devolve, upon his
death, on six sharers, the plaintiff and her five children, each
having a 1/24th share therein. Adding 1/4 th and 1/24th, the
plaintiff claimed a 7/24th share in the joint family property. This
Court held:-
“The Hindu Succession Act came into force on June

17, 1956. Khandappa having died after the
commencement of that Act, to wit in 1960, and since
he had at the time of his death an interest in
Mitakshara coparcenary property, the pre-conditions
of Section 6 are satisfied and that section is
squarely attracted. By the application of the normal
rule prescribed by that section, Khandappa's
interest in the coparcenary property would devolve
by survivorship upon the surviving members of the
coparcenary and not in accordance with the
provisions of the Act. But, since the widow and
daughter are amongst the female relatives specified
in class I of the Schedule to the Act and Khandappa
died leaving behind a widow and daughters, the
proviso to Section 6 comes into play and the normal
rule is excluded. Khandappa's interest in the
coparcenary property would therefore devolve,
according to the proviso, by intestate succession
under the Act and not by survivorship. Testamentary
succession is out of question as the deceased had
not made a testamentary disposition though, under
the explanation to Section 30 of the Act, the interest
of a male Hindu in Mitakshara coparcenary property
is capable of being disposed of by a will or other
testamentary disposition.
There is thus no dispute that the normal rule

provided for by Section 6 does not apply, that the
12
Page 12
proviso to that section is attracted and that the
decision of the appeal must turn on the meaning to
be given to Explanation 1 of Section 6. The
interpretation of that Explanation is the
subject-matter of acute controversy between the
parties.”
12. This Court, in dealing with the proviso and explanation 1
of Section 6, held that the fiction created by explanation 1 has
to be given its full effect. That being the case, it was held:-
“13. In order to ascertain the share of heirs in the

property of a deceased coparcener it is necessary
in the very nature of things, and as the very first
step, to ascertain the share of the deceased in the
coparcenary property. For, by doing that alone can
one determine the extent of the claimant's share.
Explanation 1 to Section 6 resorts to the simple
expedient, undoubtedly fictional, that the interest of
a Hindu Mitakshara coparcener “shall be deemed to
be” the share in the property that would have been
allotted to him if a partition of that property had
taken place immediately before his death. What is
therefore required to be assumed is that a partition
had in fact taken place between the deceased and
his coparceners immediately before his death. That
assumption, once made, is irrevocable. In other
words, the assumption having been made once for
the purpose of ascertaining the share of the
deceased in the coparcenary property, one cannot
go back on that assumption and ascertain the share
of the heirs without reference to it. The assumption
which the statute requires to be made that a
partition had in fact taken place must permeate the
entire process of ascertainment of the ultimate
share of the heirs, through all its stages. To make
the assumption at the initial stage for the limited
13
Page 13
purpose of ascertaining the share of the deceased
and then to ignore it for calculating the quantum of
the share of the heirs is truly to permit one's
imagination to boggle. All the consequences which
flow from a real partition have to be logically worked
out, which means that the share of the heirs must
be ascertained on the basis that they had separated
from one another and had received a share in the
partition which had taken place during the lifetime of
the deceased. The allotment of this share is not a
processual step devised merely for the purpose of
working out some other conclusion. It has to be
treated and accepted as a concrete reality,
something that cannot be recalled just as a share
allotted to a coparcener in an actual partition cannot
generally be recalled. The inevitable corollary of this
position is that the heir will get his or her share in
the interest which the deceased had in the
coparcenary property at the time of his death, in
addition to the share which he or she received or
must be deemed to have received in the notional
partition.”
13. In State of Maharashtra v. Narayan Rao Sham Rao
Deshmukh and Ors., (1985) 3 S.C.R. 358, this Court
distinguished the judgment in Magdum’s case in answering a
completely different question that was raised before it. The
question raised before the Court in that case was as to whether
a female Hindu, who inherits a share of the joint family property
on the death of her husband, ceases to be a member of the
family thereafter. This Court held that as there was a partition
by operation of law on application of explanation 1 of Section

14
Page 14
6, and as such partition was not a voluntary act by the female
Hindu, the female Hindu does not cease to be a member of the
joint family upon such partition being effected.
14. In Shyama Devi (Smt) and Ors.
v. Manju Shukla (Mrs) and Anr., (1994) 6 SCC 342, this Court
again considered the effect of the proviso and explanation 1 to
Section 6, and followed the judgment of this Court in
Magdum’s case (supra). This Court went on to state that
explanation 1 contains a formula for determining the share of
the deceased on the date of his death by the law effecting a
partition immediately before a male Hindu’s death took place.
15. On application of the principles contained in the aforesaid
decisions, it becomes clear that, on the death of Jagannath
Singh in 1973, the proviso to Section 6 would apply inasmuch
as Jagannath Singh had left behind his widow, who was a
Class I female heir. Equally, upon the application of explanation
1 to the said Section, a partition must be said to have been
effected by operation of law immediately before his death. This
being the case, it is clear that the plaintiff would be entitled to a
share on this partition taking place in 1973. We were informed,
15
Page 15
however, that the plaintiff was born only in 1977, and that, for
this reason, (his birth being after his grandfather’s death)
obviously no such share could be allotted to him. Also, his case
in the suit filed by him is not that he is entitled to this share but
that he is entitled to a 1/8 th share on dividing the joint family
property between 8 co-sharers in 1998. What has therefore to
be seen is whether the application of Section 8, in 1973, on the
death of Jagannath Singh would make the joint family property
in the hands of the father, uncles and the plaintiff no longer joint
family property after the devolution of Jagannath Singh’s share,
by application of Section 8, among his Class I heirs. This
question would have to be answered with reference to some of
the judgments of this Court.
16. In Commissioner of Wealth Tax, Kanpur and Others v.
Chander Sen and Others, (1986) 3 SCC 567, a partial partition
having taken place in 1961 between a father and his son, their
business was divided and thereafter carried on by a partnership
firm consisting of the two of them. The father died in 1965,
leaving behind him his son and two grandsons, and a credit
balance in the account of the firm. This Court had to answer as
16
Page 16
to whether credit balance left in the account of the firm could be
said to be joint family property after the father’s share had been
distributed among his Class I heirs in accordance with Section
8 of the Act.
17. This Court examined the legal position and ultimately
approved of the view of 4 High Courts, namely, Allahabad,
Madras, Madhya Pradesh and Andhra Pradesh, while stating
that the Gujarat High Court’s view contrary to these High
Courts, would not be correct in law. After setting out the various
views of the five High Courts mentioned, this Court held:
“It is necessary to bear in mind the preamble to the

Hindu Succession Act, 1956. The preamble states
that it was an Act to amend and codify the law
relating to intestate succession among Hindus.
In view of the preamble to the Act i.e. that to modify

where necessary and to codify the law, in our
opinion it is not possible when Schedule indicates
heirs in Class I and only includes son and does not
include son's son but does include son of a
predeceased son, to say that when son inherits the
property in the situation contemplated by Section 8
he takes it as karta of his own undivided family. The
Gujarat High Court's view noted above, if accepted,
would mean that though the son of a predeceased
son and not the son of a son who is intended to he
excluded under Section 8 to inherit, the latter would
by applying the old Hindu law get a right by birth of
the said property contrary to the scheme outlined in
17
Page 17
Section 8. Furthermore as noted by the Andhra
Pradesh High Court that the Act makes it clear by
Section 4 that one should look to the Act in case of
doubt and not to the pre-existing Hindu law. It would
be difficult to hold today the property which
devolved on a Hindu under Section 8 of the Hindu
Succession Act would be HUF in his hand vis-à-vis
his own son; that would amount to creating two
classes among the heirs mentioned in Class I, the
male heirs in whose hands it will be joint Hindu
family property and vis-à-vis son and female heirs
with respect to whom no such concept could be
applied or contemplated. It may be mentioned that
heirs in Class I of Schedule under Section 8 of the
Act included widow, mother, daughter of
predeceased son etc.
Before we conclude we may state that we have

noted the observations of Mulla's Commentary on
Hindu Law, 15th Edn. dealing with Section 6 of the
Hindu Succession Act at pp. 924-26 as well as
Mayne's on Hindu Law, 12th Edn., pp. 918-19.
The express words of Section 8 of the Hindu

Succession Act, 1956 cannot be ignored and must
prevail. The preamble to the Act reiterates that the
Act is, inter alia, to “amend” the law, with that
background the express language which excludes
son's son but includes son of a predeceased son
cannot be ignored.
In the aforesaid light the views expressed by the

Allahabad High Court, the Madras High Court, the
Madhya Pradesh High Court, and the Andhra
Pradesh High Court, appear to us to be correct.
With respect we are unable to agree with the views
of the Gujarat High Court noted hereinbefore.” [at
paras 21-25]
18
Page 18
18. In Yudhishter v. Ashok Kumar, (1987) 1 SCC 204 at
page 210, this Court followed the law laid down in Chander
Sen’s case.
19. In Bhanwar Singh v. Puran, (2008) 3 SCC 87, this Court
followed Chander Sen’s case and the various judgments
following Chander Sen’s case. This Court held:-
“The Act brought about a sea change in the matter

of inheritance and succession amongst Hindus.
Section 4 of the Act contains a non obstante
provision in terms whereof any text, rule or
interpretation of Hindu Law or any custom or usage
as part of that law in force immediately before the
commencement of the Act, ceased to have effect
with respect to any matter for which provision is
made therein save as otherwise expressly provided.
Section 6 of the Act, as it stood at the relevant time,

provided for devolution of interest in the
coparcenary property. Section 8 lays down the
general rules of succession that the property of a
male dying intestate devolves according to the
provisions of the Chapter as specified in Clause (1)
of the Schedule. In the Schedule appended to the
Act, natural sons and daughters are placed as
Class I heirs but a grandson, so long as father is
alive, has not been included. Section 19 of the Act
provides that in the event of succession by two or
more heirs, they will take the property per capita
and not per stirpes, as also tenants-in-common and
not as joint tenants.
Indisputably, Bhima left behind Sant Ram and three

daughters. In terms of Section 8 of the Act,
19
Page 19
therefore, the properties of Bhima devolved upon
Sant Ram and his three sisters. Each had 1/4th
share in the property. Apart from the legal position,
factually the same was also reflected in the
record-of-rights. A partition had taken place
amongst the heirs of Bhima.
Although the learned first appellate court proceeded

to consider the effect of Section 6 of the Act, in our
opinion, the same was not applicable in the facts
and circumstances of the case. In any event, it had
rightly been held that even in such a case, having
regard to Section 8 as also Section 19 of the Act,
the properties ceased to be joint family property and
all the heirs and legal representatives of Bhima
would succeed to his interest as tenants-in-common
and not as joint tenants. In a case of this nature, the
joint coparcenary did not continue.” (at paras 12-15)
20. Some other judgments were cited before us for the
proposition that joint family property continues as such even
with a sole surviving coparcener, and if a son is born to such
coparcener thereafter, the joint family property continues as
such, there being no hiatus merely by virtue of the fact there is
a sole surviving coparcener. Dharma Shamrao Agalawe v.
Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela Devi
v. Lal Chand, (2006) 8 SCC 581, and Rohit Chauhan v.
Surinder Singh (2013) 9 SCC 419, were cited for this purpose.
None of these judgments would take the appellant any further
in view of the fact that in none of them is there any consideration

20
Page 20
of the effect of Sections 4, 8 and 19 of the Hindu Succession Act.
The law, therefore, insofar as it applies to joint family property
governed by the Mitakshara School, prior to the amendment of
2005, could therefore be summarized as follows:-

(i) When a male Hindu dies after the commencement of the
Hindu Succession Act, 1956, having at the time of his death an
interest in Mitakshara coparcenary property, his interest in the
property will devolve by survivorship upon the surviving
members of the coparcenary (vide Section 6).

(ii) To proposition (i), an exception is contained in Section 30
Explanation of the Act, making it clear that notwithstanding
anything contained in the Act, the interest of a male Hindu in
Mitakshara coparcenary property is property that can be
disposed of by him by will or other testamentary disposition.

(iii) A second exception engrafted on proposition (i) is
contained in the proviso to Section 6, which states that if such a
male Hindu had died leaving behind a female relative specified
in Class I of the Schedule or a male relative specified in that
Class who claims through such female relative surviving him,
then the interest of the deceased in the coparcenary property
would devolve by testamentary or intestate succession, and not
by survivorship.
21
Page 21
(iv) In order to determine the share of the Hindu male
coparcener who is governed by Section 6 proviso, a partition is
effected by operation of law immediately before his death. In
this partition, all the coparceners and the male Hindu’s widow
get a share in the joint family property.

(v) On the application of Section 8 of the Act, either by
reason of the death of a male Hindu leaving self-acquired
property or by the application of Section 6 proviso, such
property would devolve only by intestacy and not survivorship.

(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act,
after joint family property has been distributed in accordance
with section 8 on principles of intestacy, the joint family property
ceases to be joint family property in the hands of the various
persons who have succeeded to it as they hold the property as
tenants in common and not as joint tenants.
21. Applying the law to the facts of this case, it is clear that on
the death of Jagannath Singh in 1973, the joint family property
which was ancestral property in the hands of Jagannath Singh
and the other coparceners, devolved by succession under
Section 8 of the Act. This being the case, the ancestral
property ceased to be joint family property on the date of death
22
Page 22
of Jagannath Singh, and the other coparceners and his widow
held the property as tenants in common and not as joint
tenants. This being the case, on the date of the birth of the
appellant in 1977 the said ancestral property, not being joint
family property, the suit for partition of such property would not
be maintainable. The appeal is consequently dismissed with no
order as to costs.
……………………………J.
(Kurian Joseph)
……………………………J.
(R.F. Nariman)
New Delhi;
March 2, 2016.
23
Page 23
MANU/KA/0124/2010
Equivalent Citation: AIR2010Kant124, ILR 2010 KARNATAKA 1484, 2010(2)KCCR1249
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Regular First Appeal No. 326 of 2004
Decided On: 19.03.2010
Appellants: Pushpalatha N.V. W/o Nemraj

Vs.
Respondent: V. Padma Widow of Vasantha Kumar D.N., Asha N.V. W/o Shantharaj, N.V. Tejkumar and N.V. Bahubali (Appi)
Hon'ble Judges/Coram:
N. Kumar and A.N. Venugopal Gowda, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: L. Govindraj, Adv.
For Respondents/Defendant: R.B. Sadashivappa and K.G. Naik, Advs. for R1 to R4
Subject: Family
Acts/Rules/Orders:
Land Reforms Act, 1961 ;Hindu Succession Act, 1956 - Section 3, Hindu Succession Act, 1956 - Section 6, Hindu Succession Act, 1956 - Section 6(1), Hindu
Succession Act, 1956 - Section 6(2), Hindu Succession Act, 1956 - Section 6(3), Hindu Succession Act, 1956 - Section 6(5), Hindu Succession Act, 1956 -
Section 6(A), Hindu Succession Act, 1956 - Section 6(B), Hindu Succession Act, 1956 - Section 6(C), Hindu Succession Act, 1956 - Section 8, Hindu Succession
Act, 1956 - Section 14, Hindu Succession Act, 1956 - Section 14(1), Hindu Succession Act, 1956 - Section 29A, Hindu Succession Act, 1956 - Section 30; Hindu
Succession (Amendment) Act, 2005 ;Hindu Law of Inheritance Act, 1929 ;Hindu Women's Right to Property Act, 1937 ;Kerala Joint Hindu Family System
(Abolition) Act, 1975 ;Indian Registration Act, 1908 - Section 17(1); Indian Succession Act, 1925 ;Hindu Succession (Karnataka Amendment) Act,
1990 ;General Clauses Act, 1897 - Section 6; Code of Civil Procedure, 1908 (CPC) - Section 144; Hindu Law ;Constitution of India - Article 13, Constitution of
India - Article 13(2), Constitution of India - Article 14, Constitution of India - Article 15, Constitution of India - Article 15(1), Constitution of India - Article 15
(2), Constitution of India - Article 15(3), Constitution of India - Article 16, Constitution of India - Article 20, Constitution of India - Article 38, Constitution of
India - Article 39, Constitution of India - Article 46, Constitution of India - Article 245, Constitution of India - Article 254, Constitution of India - Article 254(1),
Constitution of India - Article 254(2)
Cases Referred:
Collector of Madura v. Mootto Ramalinga; Bhagwan Dayal (since deceased) v. Mst. Reoti Devi (deceased) AIR 1962 SC 287; Sushil Kumar (Sunil) and Anr. v.
Ram Prakash and Ors. (1988) 2 SCC 77; Kalyanji Vithaldas v. Commissioner of Income Tax, Bengal AIR 1937 PC 36; Smt. Sitabai and Anr. v. Ramachandra AIR
1970 SC 343; Gowli Buddanna v. Commissioner of Income Tax, Mysore AIR 1986 SC 1523; Bhagwati Prasad Sah and Ors. v. Dulhin Rameshwari Kuer and Anr.
AIR 1952 SC 72; Mahadfolal Kanodia v. Administrator General of West Bengal AIR 1960 SC 936; Commissioner of Income Tax v. Indian Bank Limited AIR 1965
SC 1473; S.R. Bommai v. Union of India AIR 1994 SC 1980; Eramma v. Veerupana AIR 1966 SC 1879; Phoolchand and Anr. v. Gopal Lal AIR (1967) SC 1470;
S. Sai Reddy v. S. Narayana Reddy and Ors. (1991) 3 SCC 647; Savita Samvedi v. Union of India 1996 SCO (L & S) 521; T. Barai v. Henry Ah Hoe AIR 1983 SC
150; Thirumuruga Kirupananda Variaya Thavathiru Sundara Swamigal Medical Educational and Charitable Trust v. State of Tamil Nadu AIR 1996 SC 2384; M.
Karunanidhi v. Union of India 1979 (3) SCC 431; M.P. Shikshak Congress v. R.P.F. Commissioner, Jabalpur AIR 1999 SC 443; Kulwant Kaur v. Gurdial Singh
Mann AIR 2001 SC 1273; Zaverbhai Amaidas v. The State of Bombay (1955) 1 SCR 799 : AIR 1954 SC 752 : 1954 Crl. L.J. 1822; B. Prabhakar Rao and Ors.
etc. v. State of Andhra Pradesh and Ors. etc. AIR 1988 SC 210; Bhagat Ram Sharma v. Union of India and Ors. AIR 1938 SC 740; Shamrao V. Parulekar and
Ors. v. District Magistrate Thana, Bombay and Ors. AIR 1952 SC 324; Sha Chunnilal Sohanraj v. T. Gurushantappa 1972 (1) Mys. L.J 327; Shyam Sunder and
Ors. v. Ram Kumar and Anr. AIR 2001 SC 2472; Lakshmi Narayan Guin and Ors. v. Niranjan Modak 1985 (1) SCC 270; Ram Sarup v. Munshi (1963) 3 SCR
858 : AIR 1963 SC 553; Mutta v. Godhu (1970) 2 SCR 129 : AIR 1971 SC 89; Dayawati v. Inderjit (1966) 3 275 : AIR 1966 SC 1423; United Bank of India,
Calcutta v. Abhijit Tea Co. Pvt. Ltd. and Ors. AIR 2000 SC 2957; M. Prithviraj and Ors. v. Smt. Leelamma N. and Ors. 2008 (4) KCCR 2333; Sheela Devi and
Ors. v. Lal Chand and Anr. 2007 (2) Civil LJ 364; C. Krishna Prasad v. CIT; Bhanwar Singh v. Puran and Ors. (2008) 3 SCC 87
American Jurisprudence, 2nd Edition, Vol. 73, page 434, para 366
Citing Reference:
Collector of Madura v. Mootto Ramalinga; Relied On

Bhagwan Dayal (since deceased) v. Mst. Reoti Devi (deceased) MANU/SC/0374/1961 Relied On
Sushil Kumar (Sunil) and Anr. v. Ram Prakash and Ors. Relied On
Kalyanji Vithaldas v. Commissioner of Income Tax, Bengal MANU/PR/0045/1936 Relied On
Smt. Sitabai and Anr. v. Ramachandra MANU/SC/0296/1969 Relied On
Gowli Buddanna v. Commissioner of Income Tax, Mysore Relied On
Bhagwati Prasad Sah and Ors. v. Dulhin Rameshwari Kuer and Anr. MANU/SC/0060/1951 Relied On
Mahadfolal Kanodia v. Administrator General of West Bengal MANU/SC/0294/1960 Relied On
Commissioner of Income Tax v. Indian Bank Limited MANU/SC/0145/1964 Relied On
S.R. Bommai v. Union of India Relied On
Eramma v. Veerupana MANU/SC/0365/1965 Relied On
Phoolchand and Anr. v. Gopal Lal Relied On
S. Sai Reddy v. S. Narayana Reddy and Ors. Relied On
Savita Samvedi v. Union of India Relied On
T. Barai v. Henry Ah Hoe MANU/SC/0123/1982 Relied On
Thirumuruga Kirupananda Variaya Thavathiru Sundara Swamigal Medical Educational and Charitable Trust v. State of Tamil Nadu MANU/SC/0601/1996 Relied On
M. Karunanidhi v. Union of India Relied On
M.P. Shikshak Congress v. R.P.F. Commissioner, Jabalpur MANU/SC/0857/1999 Relied On
Kulwant Kaur v. Gurdial Singh Mann MANU/SC/0182/2001 Relied On
Zaverbhai Amaidas v. The State of Bombay (1955) 1 SCR 799 : MANU/SC/0040/1954 Relied On
B. Prabhakar Rao and Ors. etc. v. State of Andhra Pradesh and Ors. etc. Relied On
Bhagat Ram Sharma v. Union of India and Ors. Relied On
Shamrao V. Parulekar and Ors. v. District Magistrate Thana, Bombay and Ors. MANU/SC/0017/1952 Relied On
Sha Chunnilal Sohanraj v. T. Gurushantappa Relied On
Shyam Sunder and Ors. v. Ram Kumar and Anr. MANU/SC/0405/2001 Relied On
Lakshmi Narayan Guin and Ors. v. Niranjan Modak Relied On
Ram Sarup v. Munshi (1963) 3 SCR 858 : MANU/SC/0401/1962 Relied On
Mutta v. Godhu (1970) 2 SCR 129 : MANU/SC/0373/1969 Relied On
Dayawati v. Inderjit (1966) 3 275 : MANU/SC/0022/1966 Relied On
United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd. and Ors. MANU/SC/0551/2000 Relied On
M. Prithviraj and Ors. v. Smt. Leelamma N. and Ors. Relied On
Sheela Devi and Ors. v. Lal Chand and Anr. Relied On
C. Krishna Prasad v. CIT; Relied On
Bhanwar Singh v. Puran and Ors. Relied On
Disposition:
Appeal allowed
2014-11-26 (Page 1 of 16 ) www.manupatra.com NLSIU Bangalore

Case Note:
Family - Right of daughter in coparcenary property - Sections - 6, 6(1), 6(2), 6(3), 6(5), 6(A), 6(B), 6(C) of Hindu Succession Act, 1956 -
Articles 245, 254, 254(1) and 254(2) of Constitution of India, 1950 - Hindu Succession (Karnataka Amendment) Act, 1990; Section 6 of General
Clauses Act, 1897 - Appeal against judgment granting decree for partition holding that Plaintiff was entitled to 1/20th share in A, B and E
Schedule properties and not 1/5th share in the suit properties as claimed by her - (1) What was the right of the daughter of a coparcener in a
Joint Hindu Family governed by Mitakshara Law in coparcenary property by virtue of the amendment - (2) When Section 6 was not applicable
to partitions already effected - (3) What was the right of a married daughter in a coparcenary property - (4) Whether the amended provision
was prospective or retrospective in operation - (5) Whether the amended provision applies to the pending proceedings before the Court - (6)
What happens to the vested right under repealed Section 6 of (a) other female members (b) male members - Held, by virtue of amendment, the
daughter of a coparcener by birth became a coparcener in her own right in the same manner as the son - Daughter of a coparcener would have
the same rights in the coparcenary property, as she would have had, if she had been a son - The rights and liabilities were to be shared equally
by the son and daughter - When the status of a co-parcenar was conferred on the daughter on and from the date of the commencement of the
Amendment Act, as the right was given to her by birth - Daughter of a co-parcenar who was born after the Act came into force alone will be
entitled to a right in the co-parcenary property and not a daughter who was born prior to 17th June, 1956 - Unless a partition was by a
registered instrument, the daughter's right to the property was not taken away –The daughter's marriage will not put an end to the right of the
daughter to a co-parcenary property which she acquired by birth - Parliament was empowered to repeal or amend a repugnant State law even
though it has become valid by virtue of the President's assent Parliament may repeal or amend the repugnant State law, either directly, or by
itself enacting a law repugnant to the State law with respect to the 'same matter' - When the Parliamentary legislation which was subsequent
in the Karnataka Amendment conferred the status of a co-parcenar on the daughter of a co-parcenar and gave right by birth in the co-
parcenary property and did not exclude the married daughters from such status and right expressly or by necessary implication, the Central Act
to that extent was repugnant to the State law - As the amended law was passed by the Parliament it prevailed over the State law and the law
passed by the State stood impliedly repealed to the extent of repugnancy - Thus, married daughter cannot be deprived of her right to a share in
the co-parcenary property by birth - Parliament had expressly made its intention clear to the effect that the amendment was retrospective - Till
a partition was effected by a decree of a Court, the daughter could not be deprived of her legitimate right in the said property -
Substituted/amended Section applied to all pending proceedings as the partition was not yet effected by a decree of the Court - In respect of
female members left behind by a male co-parcener dying before the commencement of the Amendment Act, succession to the property was
governed by the unamended Section 6 by virtue of Section 6 of the General Clauses Act - Rights which accrued to the male members of the co-
parcener on the succession being open prior to the amended Section was affected, their share get reduced - Plaintiff the daughter of a
coparcener in a Joint Hindu Family governed by the Mitakshara Law by birth became a co-parcenar in her own right - She was entitled to equal
share in the coparcenary property - On the date of death of her father, the Amendment Act had not come into force - Therefore, the unamended
Section 6 of the Act was applicable –Impugned judgment set aside - Appeal allowed.
Ratio Decidendi:
“ Th e d a u g h t e r ' s m a r r i a g e w i l l n o t p u t a n e n d t o t h e r i g h t o f t h e d a u g h t e r t o a co - p a r ce n a r y p r o p e r t y w h i ch sh e a c q u i r e d b y b i r t h . ”
JUDGMENT
N. Kumar, J.
1. This is a plaintiff's appeal against the judgment and decree of the trial Court, granting her a decree for partition holding that she is entitled to 1/20th share in
A, B and E Schedule properties and not 1/5th share in the suit properties as claimed by her.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. The subject matter of the suit is five items of immovable properties. Two are urban properties and three are landed properties, which are more particularly
described in the Schedule as, A, B, C, D and E schedule properties.
4. The case of the plaintiff is that her father, Sri D.N. Vasantha Kumar was the owner of all the suit schedule properties having acquired the same under the
registered partition deed dated 29.03.1967. He died on 31.12.1984, inte state. He left behind him, his wife V. Padma - the first defendant herein, the plaintiff
and second defendant, the daughters and defendants-3 and 4, sons, as the legal heirs. All the children after his death have succeeded to his estate. They are all
in joint possession of the suit properties. The plaintiff is entitled to 1/5th share in all the suit properties. 'A' Schedule property is earning a rent of Rs. 1000-00
currently and the entire amount is appropriated by the defendants and no share is given to the plaintiff. Therefore, she is entitled to mesne profits to the extent
of 1/5th share from the income of the said property. When she was not given her legitimate right in the: property, she filed a suit for declaration that she is
entitled to 1/5th share in the suit properties for partition and separate possession of her 1/5th share in the suit properties and also for mesne profits.
5. Defendants-1 to 4 after service of summons entered appearance and have filed a detailed written statement contesting the claim of the plaintiff. They admit
the relationship. They admit the death of their father D.N. Vasanth Kumar on 31.12.1984 leaving behind the legal heirs as mentioned in the plaint. They have
denied the allegation that the suit properties exclusively belong to D.N. Vasanth Kumar. They also deny the joint possession. Their specific case is that the suit
properties belong to Hindu Undivided family of which Late D.N. Vasanth Kumar was the Kartha and co-parcener and his two sons, defendant-3 and 4 are the
other two coparceners. The schedule properties are ancestral properties acquired by late D.K. Nabhirajaiah; the father of D.N. Vasanth Kumar along with other
properties. In the family partition which is evidenced by a registered deed of partition dated 29.03.1967, late D.N. Vasanth Kumar received the schedule
properties towards his branch of the Hindu Undivided Family. Subsequent to the death of Sri D.N. Vasanth Kumar intestate on 31.12.1984, his legal heirs, i.e.,
the plaintiff and the defendants-1 to 4 have succeeded to his 1/3rd share in the suit properties and the other 2/3rd share in the schedule properties belong to
defendants-3 and 4, the other two co-parceners. Presently, the possession of the schedule properties are with the first defendant, the eldest in the family, but
for the schedule 'D' property which has been lost under the Land Reforms Act, 1961 to the tillers of the land. Therefore, they deny the claim of the plaintiff to
be entitled to 1/5th share in the joint family properties, but are ready to give the plaintiff the 1 /20 share, to which she is entitled to in law.
6. In so far as the rental income from 'A' schedule property is concerned, two portions are rented out. Eviction proceedings are initiated against the tenants.
The first defendant is receiving the monthly rent from the two shop premises and is appropriating the same towards her medicines and legal expenditures for
prosecuting the eviction proceedings against the tenants. The plaintiff on many occasion has taken money from the first defendant for her personal and family
needs which was never been accounted by the first defendant and if accounted it would far exceed the plaintiff's share in the shop rents which she is legally
entitled to. Therefore, they sought for dismissal of the suit.
7. On the aforesaid pleadings, the trial Court framed the following issues:
(1) Whether the plaintiff proves that D.V. Vasanth Kumar died, intestate leaving schedule properties to plaintiff and defendants 1 to 4 to succeed?
(2) Whether the plaintiff proves that she is entitled to 1/5th share in the schedule properties?
(3) Whether the plaintiff proves that she is entitled for mesne profits?
(4) What reliefs the parties are entitled to?
(5) What decree or order?
8. The plaintiff in support of her claim examined herself as P.W-1 and she produced three documents, which are marked as Ex.P-1 to 3. On behalf of
defendants, Sri N.V. Tej Kumar, the third defendant was examined as D.W-1. No documents are produced.
9. The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that there, was partition between Sri D.N. Vasanth Kumar and
his brothers on 29.03.1967, in which partition, the suit properties fell to the share of D.N. Vasanth Kumar. Therefore, the suit properties are all ancestral
properties/co-parcenary properties. Schedule C and D properties, were lost under the Land Reforms Act, which is not disputed. As the schedule properties are
co-parcenary properties, in view of Section 6 of the Hindu Succession Act. D.N. Vasanth Kumar would have got 1/4th share on partition between him, his wife
and two sons and that 1/4th share of D.N. Vasanth Kumar would devolve on all the legal representatives equally and thus the plaintiff is entitled to 1/5th share
in the 1/4th share of her father and not 1/5th share as claimed by the plaintiff. Therefore, it decreed the suit of the plaintiff granting her 1/20th share in A, B and
E Schedule properties. It also held that as the 'A' Schedule property is reined out to tenants and a sum of Rs. 1,147-00 being the rent collected from the two
tenants, when admittedly no portion of the said amount is paid to the plaintiff, she is entitled to her legitimate share in the rents also. However, a separate

enquiry was ordered to determine mesne profits payable. Thus it decreed the suit of the plaintiff partly. Aggrieved by the said judgment and decree of the trial
Court, the plaintiff is to appeal.
10. The said judgment was rendered on 17th January 2004. The Hindu Succession Act came to be amended by the Parliament by the Hindu Succession Act,
2005 (Act 39 of 2005) which came into force on 9th September, 2005. By the aforesaid amendment Act, Section 6of the principal Act was substituted by new
Section 3, providing for devolution of interest in co-parcenary property to a daughter of a coparcener.
11. Sri L. Govindraj, the learned Counsel for the appellant relying on the aforesaid amended provision of the Act, contended that, whether the schedule
properties are the exclusive properties of the father or not, even if it is held to be co-parcenary property, as held by the trial Court, in view of the change in
law, the plaintiff-daughter becomes a co-parcenar by birth in her own right in the same manner as the son and is entitled to same rights in the co-parcenary
properties, and therefore, the appellant is entitled to 1/5th share in the schedule properties. Though the opening words states that 'On and from the
commencement of the Hindu Succession (Amendment) Act, 2005, the daughter of a co-parcenary is treated as co-parcener, the effect of the said amendment
is, the right is conferred on such daughter by birth, anterior to the amendment Act. The Parliament expressly has stated in what cases such a daughter is not
entitled to a share by way of proviso. Admittedly, the suit properties are not alienated or partitioned before 20th December, 2004. Therefore, the plaintiff-
appellant is entitled to equal share with the son, in the co-parcenary property also.
12. Per contra, Sri R.B. Sadashivappa, the learned Counsel for the defendant-respondents contended that as the opening words of the amended provision
suggests this provision is not retrospective in operation, but is prospective. On the death of the father, succession opened. The share to which each member of
the family is entitled to, is determined as on that date. Therefore the right to a particular share is vested in the sons on the date the succession opened. Such a
vested right cannot be taken away by mailing this provision retrospective. The Section read as a whole do not expressly state that the said provision is
retrospective. Even by implication, such an interpretation is not possible, as the Parliament has expressly stated in the opening words that it is only 'on and
from the date of commencement of the Hindu Succession (Amendment) Act, 2005' such a right is conferred on the daughter. Therefore, he submits that
notwithstanding the change in law during the pendency of the appeal, the benefit conferred on a daughter under the amended provision is not available to the
plaintiff herein, as the amended provision is not applicable to the pending proceedings before the Court, as the right of the parties is to be determined in the
light of the law which was in force on the date of the institution of the suit, and the date on which succession opened.
13. In the light of the aforesaid contentions, the points that arise for, consideration in this appeal are as under:
(1) What is the right of the daughter of a co-parcener in a Joint Hindu Family governed by Mitakshara Law in co-parcenary property by virtue of the
amendment?
(2) When Section 6 is not applicable to partitions already effected?
(3) What is the right of a married daughter in a co-parcenary property?
(4) Whether the amended provision is prospective or retrospective in operation?
(5) Whether the amended provision applies to the pending proceedings before the Court?
(6) What happens to the vested right under repealed Section 6 of (a) other female members (b) male members?
14. The answer to these questions depends on the interpretation to be placed on the amended Section 6. For a proper appreciation of the substituted Section 6
of the Act, four things are to be discerned and considered. They are:
(a) What was the law before the amendment?
(b) What was the mischief and defect for which the earlier law did net provide for?
(c) What is the remedy the parliament intended by amending the law?
(d) The true reason for such remedy?
15. Then the Judges shall place such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for
continuance of the mischief, and to add force and life to cure the remedy, according to true intent of the makers of the Act.
16. In this background we have to see the law governing Hindu Joint Family, coparcenary, survivorship and succession. The joint family system comes first in
the historical order. The law of inheritance is of later growth. When we talk about prior law, we have to keep in mind law prior to 1956 Act, and subsequent Law
till 2005 amendment Act. To understand the law of inheritance, we should know the meaning of the words "Mitakshara", "co-parcenary" and "Hindu Joint
Family".
MITAKSHARA
17. The term "School of law" as applied to different legal schools prevalent in different parts of India, seems to have been first used by Mr. Colebrooke. An
account of the origin and development of the schools of Hindu Law was given by the judicial committee of the Privy Council in the case of Co l l e ct o r o f M a d u r a
v . M o o t t o Ra m a l i n g a : The remoter sources of the Hindu Law are common to all the different schools. The process by which those schools have been
developed seems to have been of this kind. Works universally or very generally received became the subject of subsequent commentaries. The commentator
put his own glosses on the ancient text, and his authority having been received in one and rejected in another part of India, schools with conflicting doctrine
arose. Mitakshara - a very modest title meaning a brief compendium -is a running commentary on the Code of Yajnavalkya and a veritable digest of Smriti law.
It was written in the latter part of the eleventh century by Vijananeshwara, an ascetic. In Mitakshara which is more of a digest than a mere commentary on a
particular Smriti, we find the quintessence of the Smriti law and its precepts and injunctions. The chief merit of the work consists in its comprehensive
treatment of almost all important topics of the law and the synthesising of various Smriti texts. The meaning of the doctrine of sapinda relationship in the law of
inheritance insisted upon by Vijnaneshvara whereby of blood (propinquity) is to be preferred to community in the offering of religious ablations is the governing
factor whereby under the Mitakshara law the right to inherit arises. According to the Mitakshara law, each son acquires at his birth an equal interest with his
father in all ancestral property held by the father and on the death of the father, the son takes the property, not as his heir, but by survivorship. The position of
the son or grandson in the Mitakshara Is somewhat similar to that of "sui heredes" who under the Roman law are regarded as having a sort of dormant
ownership in the estate of their father ever during his lifetime. The succession was not so much a succession as coming into enjoyment of what in a sense had
already partly belonged to them. It is usual to subdivide the Mitakshara School of Hindu law into four schools namely the Benares, the Mithila, the Bombay and
the Madras School. The variances between the subdivisions of the Mitashara school are comparatively few and slight. Except in respect of the Bombay school,
tills division serves no useful purpose, not does it rest upon any true or scientific basis. Mithakshara has for more than nine centuries occupied a plane of
ascendancy and authority unique and unrivalled in the annals of legal literature, Vijnaneshwara was one of the greatest of the juristheologians who contributed
to the making of Hindu law. The Mitakshara holds soverign sway in the whole of India except Bengal.
CO-PARCENARY
18. A co-parcener is one who shares (equally) with others in inheritance in the estate of a common ancestor. Otherwise called parceners, are such as have
equal portion in the inheritance of an ancestor, or who come in equality to the lands of their ancestors. A person to whom an estate descends jointly and who
holds it as an entire estate. But sometimes, two or more persons together constituted the heir and in this case they took the land as 'parceners' or
'coparceners', the latter expression being the more common. In theory of law, coparceners together constituted a single heir; they be but one heir and yet
several persons'. They were called parceners because, every coparcener had a common law light to have a partition made.
19. A male member of a joint family and his sons, grandsons and great grandsons constitute a coparcenary. In other words, three generations comes to the
holder in unbroken male descendant. Co-parcenary is a creature of law. It cannot be created by act of parties. By adoption, a stranger may be introduced as a
member thereof. It is a family unit. A Hindu coparcenary is, however, a narrower body than the joint family, only males who acquire by birth an interest in the
joint or coparcenary property can be members of the coparcenary or coparceners. No female can be a co-parcener.
20. The Supreme Court in the case of Bh a g w a n D a y a l ( si n ce d e ce a se d ) v . M s t . Re o t i De v i ( d e ce a se d ) reported in MANU/SC/0374/1961 : AIR 1962 SC

287, held as under:
Coparcenary is a creature of Hindu Law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a
family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the
subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by
consent, express or implied, of the members of the family, any other member or members can carry on business or acquire property, subject to the
[initiations laid down by the said law, for or on behalf of the family. Such business or property would be the business or property of the family. The
identity of the members of the family is not completely lost in the family. One or more members of that family can start a business or acquire
property without the aid of the joint family property, but such business or acquisition would be his or their acquisition. The business so started or
property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the
estate of the joint family. But he or they need not do so, in which case the said property would be his or their self-acquisition, and succession to
such property would be governed not by the law of joint family but only by the law of inheritance. In such a case, if a property was jointly acquired
by them, it would not be governed by the law of joint family; for Hindu law does not recognise some of the members of a joint family belonging to
different branches, or even to a single branch, as a corporate unit Therefore, the rights inter se between the members who have acquired the said
property would be subject to the terms of the agreement whereunder it was acquired. The concept of joint tenancy known to English law with the
right of survivorship is unknown to Hindu law except in regard to cases specifically recognized by it. The acquisitions made by the members of
different branches jointly cannot be impressed with the incidents of joint family property. They can only be co-sharers or co-tenants, with the result
that their properties pass by inheritance & not by survivorship.
21. The Supreme Court in the case of Su sh i l K u m a r ( Su n i l ) a n d A n r . v . Ra m Pr a k a sh a n d Or s. MANU/SC/0521/1988 : (1988) 2 SCC 77, held as under:
18. The coparcenary consists of only those persons who have taken by birth an interest in the property of the holder and who can enforce a
partition whenever they like it is a narrower body than joint family. It commences with a common ancestor and includes a holder of joint property
and only those males in his male line who are not removed from him by more than three degrees. The reason why coparcenership is so limited is to
be found in the tenet of the Hindu religion that only male descendants up to three degree can offer spiritual ministration to an ancestor. Only males
can be coparceners.
HINDU JOINT FAMILY:
22. The joint undivided family is a normal condition of a Hindu society. Joint Hindu Family consists of all persons lineal descended from a common ancestors
and includes all wives and unmarried daughters. Undivided Hindu family is originally joint not only in estate but also in food and worship. The existence of joint
estate is not an essential requisite to constitute joint family and family which does not own any property, may nevertheless be joint. Hindu Joint Family is by
birth and joint family property is only adjunct of the joint family. Joint or Undivided Hindu Family may consists of single male member and widows of deceased
male members. The property of a joint family does not cease to be a joint family property belonging to any other family merely because the family is
represented by a single male member. It may consists of a male Hindu and his wife. It may even consists of two joint members. However, there must be
atleast two members to constitute joint family. The general principle is that a Hindu Family it presumed to be Joint unless the contrary is proved. A daughter
ceases to be a member of her father's family, on marriage and becomes member of her husband's family.
23. The Privy Council in the case of Ka l y a n j i Vi t h a l d a s v . Co m m i s si o n e r o f I n co m e Ta x , Be n g a l reported in MANU/PR/0045/1936 : AIR 1937 PC 36,
explained the meaning of Hindu undivided family as under:
The phrase "Hindu undivided family" is used in the statute with reference not to one school only of Hindu law, but to all schools; and their Lordships
think it a mistake in method to begirt by pasting over the wider phrase of the Act the words "Hindu coparcenary", all the more that it is not possible
to say on the face of the Act that no female can be a member.
24. The Apex Court in the case of Sm t . Si t a b a i a n d A n r . v . Ra m a ch a n d r a reported in MANU/SC/0296/1969 : AIR 1970 SC 343 held thus:
Under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members and the property of a
joint family does not cease to belong to a joint family merely because the family is represented by a single coparcener who possesses rights which
an absolute owner of property may possess. The property which was the joint family property of the Hindu undivided family does not cease to be so
because of the "temporary reduction of the coparcenary unit to a single individual". The character of the property, viz. That it was the joint property
of a Hindu undivided family remains the same. It is only by analysing the nature of the rights of the members of the undivided family, both those in
being and those yet to be born, that it can be determined whether the family property can properly be described as 'joint property' of the undivided
family.
25. The Supreme Court in the case of Go w l i Bu d d a n n a v . Co m m i s si o n e r o f I n c o m e Ta x , M y s o r e reported in AIR 1986 SC 1523 held thus:
6. A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A
Hindu coparcenary is a much narrower body titan the joint family: it includes only those persons who acquire by birth an interest in the joint or
coparcenary property, these being the sons, grandsons, and great-grandsons of the holder of the joint property for the time being: Therefore, there
may be a joint Hindu family consisting of a single male member and widows of deceased coparceners.
26. The Apex Court in the case of Bh a g w a t i Pr a sa d Sa h a n d Or s. v . Du l h i n Ra m e sh w a r i Ku e r a n d A n r . reported in MANU/SC/0060/1951 : AIR 1952 SC
72, held as under:
The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved but where one of the coparceners
separates himself from the other members of the joint family and has his share in the joint property partitioned off for him there is no presumption
that the rest of the coparceners continued to be joint. It would be a question of fact to be determined in each case upon the evidence relating to the
intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would
undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief.
LAW PRIOR TO 1956
27. Prior to the Act of 1956, Hindus were governed by Shastric and Customary laws which varied from region to region and sometimes it varied in the same
region on a caste basis. As the country is vast and communications and social interactions in the past were difficult, it led to a diversity in the law. Consequently
in matters of succession also, there were different schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and
Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight, variations. The multiplicity of succession laws in India, diverse in
their nature, owing to their varied origin made the property laws even more complex.
28. The two systems of inheritance which is predominant amongst the Hindus in India are; Mitakshara system and Dayabhaga system. Dayabhaga system
prevails in Bengal, Mitakshara system in other parts of India. The difference between the two systems arises from the fact that, while the doctrine of religious
efficacy is the guiding principle under Dayabhaga School, there is no such definite guiding principle under Mitakshara School. Sometimes, consanguinity has
been regarded as the guiding principle and at other times, religious efficacy.
29. Mitakshara recognises two modes of devolution of property, namely, survivorship and succession. The rule of survivorship applies to joint family property;
the rule of succession apply to property held in absolute severalty by the last owner. Dayabhaga recognises only one mode of devolution, namely, succession. It
does not recognise the rule of survivorship even in the case of joint family property. The reason is that while every member of a Mitakshara joint family has
only an undivided interest in the joint property, a member of a Dayabhaga joint family holds his share in quasi-severalty, so that it passes on his death to his
heirs as if he was absolutely seized thereof, and not to the surviving coparceners as under Mitakshara law.
30. Under the Mitakshara law, on birth, the son acquires a tight and interest in the family property. According to this school, a son, grandson and a great
grandson constitute a class of coparcenars, based on birth in the family. No female is a member of the coparcenary in Mitakshara law. Under the Mitakshara
system, joint family property devolves by survivorship within the coparcenary. This means that with every birth or death of a male in the family, the shore of
every other surviving male either gets diminished or enlarged. If a coparcenary consists of a father and his two sons, each would own one third of the property.
If another son is born in the family, automatically the share of each male is reduced to one fourth.
31. The rule of inheritance laid down in Mitakshara are followed by the Bombay, Madras, Benares and Mithila Schools, all the schools being sub-divisions of

Mitakshara School. However, the rules of inheritance in force in the several states represented by these schools are not entirely the same. They differ in certain
aspects namely, the order of inheritance as laid down in Mitakshara is not strictly followed in Bombay, Gujarat and the North Konkon. The order of succession to
males in the Bombay State is different from that in other parts of India where Mitakshara law prevails. The reason is that in those places preference is given to
the Vyavahara Mayukha of Nilkanta Bhatta on few points, where it differs from Mitakshara. The difference arises from the fact that the Bombay School
recognises as heirs certain females who are not recognised as heirs in other parts of India, in the Bombay State itself there is a difference between the order of
succession in cases governed by the Mayukha. In the Bombay State, daughters do not take as joint tenants with benefits of surviorship, but they take as
tenants-in-common. Further, a daughter in that State does not take a limited estate in her father's property, but takes the property absolutely. Thus if a Hindu
governed by the Bombay School dies leaving two daughters, each daughter takes an absolute interest in a moiety of her father's estate, and holds it as her
separate property, and on her death her share will pass to her own heirs as her stridhana.
32. The Dayabhaga school neither accords a right by birth nor by survivorship though a joint family and joint property is recognised. Neither sons nor daughters
become coparceners at birth nor do they have rights in the family property during their father's life time. However, on his death, they inherit as tenants-in-
common. It is a notable feature of the Dayabhaga School that the daughters also get equal shares alongwith their brothers.
33. In the Marumakkattayam law, which prevailed in Kerala wherein the family was joint, a household consisted of the mother and her children with joint rights
in property. The lineage was traced through the female line. Daughters and their children were thus an integral part of the household and of the property
ownership as the family was matrilineal.
34. The earliest legislation bringing females into the scheme of inheritance is the Hindu Law of Inheritance Act, 1929. This Act, conferred inheritance rights on
three female heirs i.e. son's daughter, daughter's daughter and sister, thereby creating a limited restriction on the rule of survivorship. Another landmark
legislation conferring ownership rights on woman was the Hindu Women's Right to Property Act (XVIII of) 1937. This Act brought about revolutionary changes
in the Hindu Law of all schools, and brought changes not only in the law of coparcenary but also in the law of partition, alienation of property, inheritance and
adoption. The Act of 1937 enabled the widow to succeed along with the son and to take a share equal to that of the son. But, the widow did not become a
coparcener even though she possessed a right akin to a coparcenary interest in the property and was a member of the joint family. The widow was entitled only
to a limited estate in the property of the deceased with a right to claim partition. A daughter had virtually no inheritance rights.
35. The framers of the Indian Constitution took note of the adverse and discriminatory position of women in society and took special care to ensure that the
State took positive steps to give her equal status. Articles 14, 15(2) and (3) and 16 of the Constitution of India, thus not only inhibit discrimination against
women but in appropriate circumstances provide a free hand to the State to provide protective discrimination in favour of women. These provisions are part of
the Fundamental Rights guaranteed by the Constitution. Part IV of the Constitution contains the Directive Principles which are no less fundamental in the
governance of the State and inter-alia also provide that the State shall endeavour to ensure equality between man and woman.
LAW AFTER 1956 ACT AND PRIOR TO 2005 AMENDMENT ACT:
36. Sri Pandit Jawaharlai Nehru, the then Prime Minister of India expressed his unequivocal commitment to carry out reforms to remove the disparities and
disabilities suffered by Hindu women. As a consequence, despite the resistance of the orthodox section of the Hindus, the Hindu Succession Act, 1956 was
enacted and came into force on 17th June, 1956. It. applies to all the Hindus including Buddhists, Jains and Sikhs. It lays down a uniform and comprehensive
system of inheritance and applies to those governed both by the Mitakshara and the Dayabahaga Schools and also to those in South India governed by the the
Murumakkattayam, Aliyasantana, Nambudri and other systems of Hindu Law. Many changes were brought about giving women greater rights, yet in Section 6
the Mitakshara Coparcenary was retained.
37. The provisions regarding succession in the Hindu Code Bill, as originally framed by the B.N. Rau Committee and piloted by Dr. Ambedkar, was for
abolishing' the Mitakshara coparcenary with its concept of survivorship and the son's right by birth in a joint family property and substituting it with the
principle of inheritance by succession. These proposals met with a storm of conservative opposition. When Dr. Ambedkar was questioned as to how this
happened in the Select Committee he said: "It was not a compromise. My enemies combined with my enthusiastic supporters and my enemies thought that
they might damn the Bill by making it appear worse than it was".
38. Therefore, the Hindu Succession Act, 1956 enacted by the Parliament conferred on women and in particular to a daughter equal rights as that of the son.
The limited ownership rights in the property conferred under earlier laws blossomed into full ownership in respect of any property possessed by a female Hindu
whether acquired before or after the commencement of the Act by virtue of Section 14 of the Act. The explanation to Section 14(1) made it clear, the property
referred to in Section 14 includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of
maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion,
or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the
commencement of the Act. Therefore, a Hindu women with the advent of the Act enjoyed the absolute ownership rights in the property possessed and acquired
by her and she was at liberty to exercise her right in the same as such absolute owner. In respect of the property of a male Hindu dying inte state, equal rights
were given to a female Hindu by treating her as Class I heir along with son of the deceased. However, the said enactment had no application to coparcenary
property. Prior to 1956 Act, the daughter in a Hindu Joint Family governed by Mitakshara law was not considered a co-parcener. Even after 1956 Act the
position continued to be the same. The Act of 1956 did not deal with devolution of interest in the coparcenary property. Section 6 made it clear that, when a
male Hindu dies after the commencement of the Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the
property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. Therefore, the Act was not made
applicable to coparcenary property. However, the proviso to the said Section provided that, if a male Hindu dies leaving behind a surviving female relative
specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in
Mitakashara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under the Act and not by survivorship.
39. The inequality between a son and a daughter contained in the shastric and customary Mitakshara law continued to persist. The concept of the Mitakshara
coparcenary property retained under Section 6 of the Hindu Succession Act has not been amended ever since its enactment. It is a matter of some satisfaction
that, five states in India namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka took cognisance of the fact that a woman needs to be
treated equally both in the economic and the social spheres. In the year 1994, the States of Karnataka, Andhra Pradesh, Maharashtra, for the first time brought
in amendments to Section 6 conferring right on daughters in coparcenary property and treating them as co-parcenars. As per the law of four of these states,
(Kerala excluded), in a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the
same manner as the son. However, the said benefit was not extended to the case of partitions anterior to the said law and to the married daughters. Kerala,
however, has gone one step further and abolished the right to claim any interest in any property of an ancestor during his or her lifetime founded on the mere
fact that he or she was born in the family. In fact, it abolished the Joint Hindu family system altogether including the Mitakshara, Marumakkattayam,
Aliyasantana and Nambudri systems. Thus enacting that joint tenants be replaced by tenants in common. However, the other states instead of abolishing the
right by birth strengthened it, while broadly removing the gender discrimination inherent in Mitakshara Co-parcenary.
40. Social justice demands that a woman should be treated equally both in the economic and the social sphere. The exclusion of daughters from participating in
coparcenary property ownership merely by reason of their sex is unjust. Improving their economic condition and social status by giving equal rights by birth is a
long felt social need. Undoubtedly a radical reform of the Mitakshara law of coparcenary was needed to provide equal distribution of property not only with
respect to the separate or self-acquired property of the deceased male but also in respect of his undivided interest in the coparcenary property.
41. Therefore, notwithstanding such conferment of coparcenary property rights in property by birth, discrimination persisted between a married daughter and
an unmarried daughter and the married daughter and a married son. It led to heart burning. The law prior to amendment denied the daughter the status of
coparcenar in a Joint Hindu Family and equal rights in the property with the son, and the State tolerated this inequality for nearly 50 years. Article 13 of the
Constitution declares that all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent
with the provisions of Part III fundamental rights shall, to the extent of such inconsistency, is void. The Act was enacted after the commencement of the
Constitution. Article 13(2) declares that the State shall not make any law which takes away or abridges the rights conferred by this part and any law made in
contravention of the said clause, shall to the extent of the contravention, be void. It took nearly 50 years to realise this inequality and restore equality. It is in
this background the Parliament, took note of the events for the last 50 years after the enactment, various pronouncements of the Apex Court while interpreting
Articles 14, 15 and 16 and the attempts made by successive Governments to eradicate gender bias and came up with the Hindu Succession (Amendment) Act,
2005. That is the purpose of this amendment.
POINT No. 1
Hindu Succession (Amendment) Act 2005 (Act No. 39 of 2005)
42. The Hindu Succession (Amendment) Bili, 2005 was passed by the Rajya Sabha on 16th August 2005, and by the Lok Sabha on 29th August 2005, and

assented by the President of India on 5th September 2005. it came into force from 9th September, 2005. The provisions introduced by way of amendment has
to be understood in the background of the law as it stood before, the mischief sought to be remedied by the amendment, and also the objects and reasons set
out in the amendment Act.
STATEMENT OF OBJECTS AND REASONS
43. Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among
the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot
inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only
contributes to her discrimination on the ground of gender but also had led to oppression and negation of her fundamental right of equality guaranteed by the
Constitution having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made
necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint
Hindu Family System (Abolition) Act, 1975. It is proposed to remove the discrimination as contained in Section 6 of the Hindu Succession Act, 1956 by giving
equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have.
44. Before we interpret this provision, it is necessary to keep in mind the principle of interpretation which is relevant in interpreting this provision.
INTERPRETATION
The Apex Court in the case of M a h a d f o l a l Ka n o d i a v . A d m i n i st r a t o r Ge n e r a l o f W e st Be n g a l reported in MANU/SC/0294/1960 : AIR 1960 SC 936, has laid
down the principles to be applied as under:
(1) Statutory provisions which create or take away substantive rights are ordinarily prospective. They can be retrospective if made so expressly or
by necessary implication and the retrospective operation must be limited only to the extent to which it has been so made either expressly or by
necessary implication.
(2) The intention of the legislature has to be gathered from the words used by it, giving them their plain, normal grammatical meaning.
(3) If any provision of a. legislation, the purpose of which is to benefit a particular class of persons is ambiguous so that it is capable of two
meanings, the meaning which preserves the benefits should be adopted.
(4) If the strict grammatical interpretation gives rise to an absurdity or inconsistency, such interpretation should be discarded and an interpretation
which will give effect to the purpose will be put on the words, if necessary, even by modification of the language used.
45. In Co m m i s si o n e r o f I n co m e Ta x v . I n d i a n Ba n k Li m i t e d MANU/SC/0145/1964 : AIR 1965 SC 1473, the Supreme Court reiterated:
In our opinion, in construing the Act, we must adhere closely to the language of the Act. If there is ambiguity in the terms of a provision, recourse
must naturally be had to well established principles of construction, but it is not permissible first to create an artificial ambiguity and then try to
resolve the ambiguity by resort to some general principles
15.3. The principles are so succinctly stated in American Jurisprudence (2nd Edition, Vol. 73, page 434, PT.366), quoted with approval in S.R.
Bommai v. Union of India AIR 1994 SC 1980.
While it has been held that it is duty of the courts to interpret as statute as they find it without reference to whether its provisions are
expedient or inexpedient. It has also been recognised that where a statute is ambiguous and subject to more than one interpretation,
the expediency of one construction or the other is properly considered. Indeed, where the arguments are nicely balanced, expediency
may trip the scales in favour of a particular construction. It is not the function of a court in the interpretation of statutes, to vindicate
the wisdom of the law. The mere fact that the statute leads to unwise results is not sufficient to justify the Court in rejecting the plain
meaning of unambiguous words or in giving to a statute a meaning of which its language is not susceptible, or in restricting the scope of
a statute. By the same token an omission or failure to prove for contingencies, which it may seem wise to have provided for specifically,
does not justify any judicial addition to the language of the statute. To the contrary, it is the duty of the Courts to interpret a statute as
they find it without reference to whether its provisions are wise or unwise, necessary or unnecessary, appropriate or inappropriate, or
well or ill conceived.
15.4. Rule of interpretation are meant to ascertain the true intent and purpose of the enactment and set right any anomaly, inconsistency or
ambiguity, while giving effect to it The several rules of interpretation when juxtapositioned may give an impression that they are inconsistent with
each other. Further, the same provision, when interpreted with reference to different Rules of interpretation may lead to different results. This is
because the Rules of interpretation are meant to set right different types of defects. It is not possible to apply all rules of interpretation together, to
a provision of law. An appropriate rule of interpretation should he chosen as a tool depending upon the nature of the defect in drafting which has to
be set right. The Rules of interpretation are to be applied in interpreting the statutes, only if there is ambiguity, inconsistency, absurdity or
redundancy. Where the words are clear the unambiguous, there is little need to open the tool kit of Interpretation.
46. Keeping in mind these principles, the substituted Section 6 is to be interpreted. Section 6 reads as under:
Se ct i o n 6 . De v o l u t i o n o f i n t e r e st i n co p a r ce n a r y p r o p e r t y . - (1) On and from the commencement of the Hindu Succession (Amendment) Act
2005, in a Joint Hindu family governed by the Mitakshara Law, the daughter of a coparcener shall,-
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu
Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any
partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of Sub-section (1) shall be held by her with the incidents of coparcenary
ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of
being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu
family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be under this Act and not by
survivorship, and. the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-
(a) the daughter is allotted the same share as is allotted to a son;
(b) the shore of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition,
shall be allotted to the surviving child of such predeceased son or of such predeceased daughter; and
(c) the share of the predeceased child of a pre-deceased son or a predeceased daughter, as such child would have got had he or she
been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-
deceased daughter, as the case may be.
Ex p l a n a t i o n . - For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property

that would have been allotted to him if a. partition of the property had taken place immediately before his death irrespective of whether he was
entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son,
grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grand-father solely on the ground of the pious
obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt;
Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 nothing
contained in this sub-section shall affect-
(a) the right of any creditor to proceed against the son, grandson of great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be
enforceable under the rule or pious obligation in the same manner and to the same extent as it would have been
enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation.- For the purposes of Clause (a), the expression "son", "grandson" or "great- grandson" shall be deemed to
refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of
the Hindu Succession (Amendment) Act, 2005.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.
Explanation.- For the purposes of this Section "partition" means any partition made by execution of a deed of partition duly registered under the
Registration Act 1908 (16 of 1908) or partition effected by a decree of a court.
47. The heading of the Section, "devolution of interest in coparcenary property" is retained. There is no change. The word "co-parcenary" and "Joint Hindu
Family" was used in all schools of Hindu Law, though the rights of co-parcenars and members of the Joint family differed. The un-amended Section 6 dealt with
interest of a male Hindu in a Mitakshara coparcenary property, as a female Hindu was not recognized as a coparcener at all The parliament intended to change
the existing law and create and confer such right on a daughter of a coparcener also. Therefore, they chose to make a declaration signaling the change in the
Jaw, as it existed till then and heralding a new era. The intention behind the amendment is to confer such coparcenary right on the daughter of a coparcener,
which was hitherto not recognized both under the Shastric Hindu Law and the Act. The discrimination sought to be removed was not existing in all Schools of
Hindu Law. It was existing only in Mitakshara School. Therefore, amended section makes it clear that the declaration made is confined only to "a Joint Family
governed by the Mitakshara law". The equality to be restored was between son and daughter only and not between male and female Hindu. Therefore, the
Parliament consciously used the phrase "the daughter of a coparcener" is the person on whom they are conferring the right and not on any other female
relative, who may be a member of Joint Hindu Family. This intention can be gathered from the fact that in the unamended Section, the proviso conferred rights
on a "female relative" and not only on a "daughter of a coparcener".
48. Then the next question, is What is the right that is created and conferred?
Two rights are conferred.
(a) The daughter of a coparcener by birth become a coparcener in her own right in the same manner as the son. Eq u a l i t y i n St a t u s:
(b) The daughter of a coparcener would have the same rights in the coparcenary property, as she would have had, if she had been a
son. Eq u a l r i g h t s i n co p a r ce n a r y p r o p e r t y .
49. Thus, Gender discrimination between the son and daughter is removed, and bringing the law in conformity with the Article 14 and 15 of the Constitution
which are fundamental rights.
50. The parliament took care to see that the daughter who is conferred rights in the coparcenary property on par with the son, is also saddled with the liabilities
in respect of the said coparcenary property as that of a son, making it clear that the right in property conferred on her is not free from all encumbrances on the
said property. The rights and liabilities are to be shared equally by the son and daughter, thus giving effect to the equality clause in letter and spirit.
51. With the change in the law, the legal concept of coparcenary underwent a radical change. The coparcenary hitherto the monopoly of male lineal
descendants, and consisting of only male member of a Joint Hindu Family now has to accommodate a daughter, a female also. Therefore, a declaration is made
to the effect that any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener. The exclusive club of
males "a Hindu Mitakshara co-parcenars is now thrown open to the daughters also.
52. This declaration and conferment of right in coparcenary property, a salient and distinguishing feature of a coparcenary property in Mitakshara, is the right
by birth. Once daughter is conferred the right of a coparcener, it follows that, she would get a right by birth in the coparcenary property. When the amending
act came into force in 2005, naturally the question and a doubt would arise, as to when the daughter would get that right. The parliament realised this problem
and did not want to leave any one in doubt about its intention. It is expressly stated in the section itself that this "right is by birth", leaving no scope for
interpretation. This amendment is introduced by way of substitution. The result is, this amended provision is there in the statute on the day it came into force
i.e., 17-6-1956. From that day till the amendment Act came into force on 9-9-2005, the daughter of the coparcener was not a coparcener and she became a
coparcener only from 9-9-2005. Though her status was so declared on 9-9-2005, she has been given right in the coparcenery property from the date of her
birth. It would result in absurdity. Therefore, what the parliament did was to use the phrase, "on and from the commencement of the Hindu Succession
(Amendment) Act. 2005", as the opening words of the Section, thus removing the absurdity.
53. If the aforesaid opening words were not there in the amended section and it is inserted by way of substitution, when the right is given to a daughter by
birth, such a right would have accrued to her prior to the date of the passing of the Act in 1956 itself. The intention of the Parliament was hot to give her rights
in a coparcenary property prior to the date of the Act as she had only a limited right in the property, whether ancestral or self acquired property of the father.
Therefore, on a proper interpretation it follows that when the status of a co-parcenar is conferred on the daughter on and from the date of the commencement
of the Amendment Act, as the right is given to her by birth, she must have born after 17.6.1956, the day on which the Act came into force. It is only under the
Act, her limited estate blossomed into an absolute estate, and got equal rights with the son in the property of her father and mother.
54. The Apex Court in the case of Er a m m a v . Ve e r u p a n a MANU/SC/0365/1965 : AIR 1966 SC 1879 had an occasion to consider whether the Act is
prospective or retrospective in operation. After analysing the various provisions of the Act it was held that, there is nothing in the language of Section 8 to
suggest that it has retrospective operation. The words "The property of a male Hindu dying intestate" and the words "shall devolve" occurring in the section
make it very clear that the property whose devolution is provided for by that section must be the property of a person who dies after the commencement of the
Hindu Succession Act.
55. Again after referring to Section 6 of the Act, it was held that, it is clear from the express language of the section that it applies only to co-parcenary
property of the male Hindu holder who dies after the commencement of the Act. It is manifest that the language of Section 8 must be construed in the context
of Section 6 of the Act. Accordingly, they held that the provisions of Section 8 of the Hindu Succession Act are not retrospective in operation and where a male
Hindu died before the Act came into force i.e., where succession opened before the Act, Section 8 of the Act will have no application.
56. Therefore, it follows that the Act when it was enacted, the legislature had no intention of conferring rights which are conferred for the first time on a female
relative of a co-parcener including a daughter prior to the commencement of the Act. Therefore, while enacting this substituted provision of Section 6 also it
cannot be made retrospective in the sense applicable to the daughters born before the Act came into force. In the Act before amendment the daughter of a co-
parcener was not conferred the status of a co-parcener. Such a status is conferred only by the Amendment Act in 2005. After conferring such status, right to
co-parcenary property is given from the date of her birth. Therefore, it should necessarily follow such a date of birth should be after the Act came into force,
i.e., 17.6.1956. There was no intention either under the unamended Act or the Act after amendment to confer any such right on a daughter of a co-parcener
who was born prior to 17.6.1956. Therefore, in this context also the opening words of the amending section assumes importance. The status of a coparcener is
conferred on a daughter of a co-parcenar on and from the commencement of the Amendment Act, 2005. The right to property is conferred from the date of
birth. But, both these rights are conferred under the Act and. therefore, it necessarily follows the daughter of a co-parcenar who is born after the Act came into
force alone will be entitled to a right in the co-parcenary property and not a daughter who was born prior to 17.6.1956.

57. Thus, by virtue of the substituted provision what the Parliament intends to do is first to declare that, on and from the commencement of this Amendment
Act in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same
manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son. Therefore, the Mitakshara law in
respect of coparcenary property and co-parcenary consisting of only male members came to an end. By such a declaration the Parliament declared that from
the date of the amendment shastric and customary law of coparcenary governed by Mitakshara school is no more applicable and it cease to exist. Thus, by
virtue of the aforesaid provision, a right is conferred on a daughter of a coparcenar for the first time. The said right is conformed by birth. Therefore, though
such a right was declared in the year 2005, the declaration that the said right as a coparcenar enures to her benefit by birth makes the said provision retro
active. Though on the date of the birth she did not have such right because of the law governing on that day by amendment the law, such a right is conferred
on her from the date of the Act of 1956. A historical blunder depriving an equal right in spite of the constitutional mandate is now remedied and the lawful right
to which the daughter was entitled by virtue of the constitution is restored to her from the date of her birth. This, the Parliament has done by using the express
words that a daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the
coparcenary property as she would have had if she had been a son.
58. After so declaring that the daughter of the coparcener shall by birth become a coparcener and have the same rights in the coparcenary property, the
Parliament had in its mind the fall out of such declaration on the bona fide transactions entered into between the coparceners and the third parties for nearly
four decades after coming into force of the Act, where coparcenary property was kept out of the purview of the Act. Therefore, they added a proviso to exclude
certain transactions from the purview of the main Section.
WHY IS A PROVISO IS ADDED TO A SECTION.
59. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be
within the purview of the enactment. When one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section
would have included the subject-matter of the proviso. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the
enactment, and ordinarily, a proviso is not interpreted as stating a general rule. The proper function of a proviso is that it qualifies the generality of the main
enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main
enactment. Except as to cases dealt with by it, a proviso has no repercussion on the interpretation of the enacting portion of the section so as to exclude
something by implication which is embraced by clear words in the enactment. The language of a proviso even if general is normally to be construed in relation
to the subject-matter covered by the section to which the proviso is appended. A proviso does not travel beyond the provision to which it is a proviso. It is a
cardinal rule of interpretation, that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out
an exception to the main provision to which it has been enacted as a proviso and to no other. The natural presumption is that but for the proviso, the enacting
part of the section would have included the subject-matter of the proviso the enacting part should be generally given such a construction which would make the
exceptions carved out by the proviso necessary and a construction which would make the exceptions unnecessary and redundant should be avoided. This is so
because, the legislative device of exclusion is adopted only to exclude a part from the whole, which but for the exclusion, continues to be a part of it and words
of exclusion are presumed to have some meaning and are not readily recognised as mere surplusage. The general rule in construing an enactment containing a
proviso is to construe them together without making either of them redundant or otiose. Even if the enacting part is clear effort is to be made to give some
meaning to the proviso and to justify its necessity. Proviso, is used to remove special cases from the general enactment and provide for them specially.
60. The proviso states that nothing contained in Sub-section (1) of Section 6 shall affect or invalidate any disposition or alienation including any partition or
testamentary disposition of property which had taken place before 20th day of December, 2004. In order to properly appreciate what are the transactions which
are removed from the application of Sub-section (1) of Section 6, we have to know the meaning of the word "disposition", "alienation", "partition" and
"testamntary disposition" used in this proviso.
61. The term "disposition" has been defined in Stroud's Judicial Dictionary as a devise "intended to comprehend a mode by which property can pass, whether by
act of parties or by an act of the law" and "includes transfer and change of property. The word 'disposition' means giving away or giving up by a person of
something which was his own. It is not a term of law. It has no precise meaning. Its meaning has to be gathered from the context in which it is used. The word
'disposition' in relation to property means disposition made by deed or will and also disposition made by or under a decree of a court. The word 'disposition'
would ordinarily be used in reference to a written document and not to the effect of that document. The removal of a thing from one's self is, involved in a
disposal. The disposition is the provision creating the interest, not the interest itself. Therefore, disposition means a plan or arrangement for the disposal,
distribution of something; definite settlement with regard to some matter.
62. The word 'alienation' is derived from the word 'alien'. It means to transfer or make over to another; to convey or transfer the property of a thing from one
person to another. Alienate means to transfer property from one person to another. Alienation is to make alien, or to transfer from our dominion into a foreign
one, or to transfer any thing into the power of another. "Alienee" means a person to whom ownership is transferred. Alienation" imports an actual transfer of
title. Alienation means transfer of ownership of property to another person. The word applies to absolute conveyance of immovable property and imports an
actual transfer of title. The act whereby one man transfers the property and possession of lands, tenements, or other things, to another person; generally
applied to absolute conveyances of immovable property.
63. The word "alienation" is distinct and different from 'partition". The latter is not included in the former. Therefore, for the purpose of this section, it is
specifically mentioned that the alienation includes partition.
64. The word "partition" has a different connotation in law. Partition is a division between co-owners (whether coparceners, joint-tenants in common) of lands,
tenements and hereditaments held by them, the effect of such division being that the joint ownership is terminated and the shares of the parties vested in them
in severalty. In Sanskrit the word 'vibhaga' is used. It is the adjustment of diverse rights regarding the whole by distributing them on particular portions of the
aggregate. A partition by a separation between joint owners or tenants in common of their respective interests in land, and setting apart such interest, so that
they may enjoy and possess the same in severalty. Partition is the redistribution of pre-existing rights and not the acquisition of rights by a person for the first
time. Distribution neither gives a new title to property nor transfers a distinct right in the estate of the deceased owner, but is simply declaratory as to the
persons upon whom the law casts the succession and the extent of their respective interests; while partition, in most if not all of its aspects, is an adversary
proceeding, in which a remedial right to the transfer of the property is asserted and resulting in a decree which either ex proprio vigore or as executed,
accomplishes such transfer.
65. When the word partition has been defined as explanation to Sub-Section (5) of Section 6, the meaning attributed to the said word is to be strictly
construed. It states that for the purpose of this Section, partition means, any partition made by execution of deed of partition duly registered under the
Registration Act, 1908 or partition effected by a decree of a Court. The meaning of the word 'partition' is very much restricted, narrow and to be confined only
to Section 6, as expressly stated in the explanation.
66. Chapter III of the Act deals with testamentary succession. Section 30 of the Act provides that any Hindu may dispose of by Will or other testamentary
disposition any property, which is capable of being so disposed of by him or by her in accordance with the provisions of the Indian Succession Act, 1925 or any
other law for the time being in force and applicable to Hindu. Explanation to that Section provides that the interest of a male Hindu in a Mitakshara co-
parcenary property shall notwithstanding anything contained in the Act, or in any other law for the time being in force, be deemed to be property capable of
being disposed of by him or by her within the meaning of this Section.
67. In the light of the aforesaid words used in the proviso to Sub-section (1) of Section 6 in is clear the substituted Section has no application and it shall not
affect or invalidate any disposition or alienation or partition or testamentary disposition which has taken place before the 20th day of December 2004. In other
words, if there is no disposition or alienation of a property belonging to a Joint Hindu Family, the daughter who is conferred the status of a co-parcener by
virtue of which she gets a right by birth is entitled to the same rights in the co-parcenary property in the same manner as the son. The language employed in
the proviso is unambiguous and clear. The intention was to save disposition, alienation including any partition or testamentary disposition of property which had
taken place before the 20th day of December 2004.
68. Sub-section (2) of Section 6 further declares that any property to which a female Hindu becomes entitled by virtue of Sub-section (1) shall be held by her
with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in the Act, or any other law for the time being in force
in, as property capable of being disposed of by her by testamentary disposition. Thus, equality is maintained after the daughter acquires right in the
coparcenary property also, giving full effect to the object of the amended law when it clarified the legal position that any reference to a Hindu Mitakshara
coparcener shall be deemed to include a reference to a daughter of a coparcener.
69. Sub-section (3) of section deals with succession of property after the commencement of the Hindu Succession Act, 2005, i.e., from 09.09.2005. Sub-section
(3) of the amended Section provides that, where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the
property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and

not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place. Therefore, with the passing of the
Amendment Act, 2005, the concept of survivorship is given a go by once and for all.
70. The word used is, "Hindu", implying both male and female. This provision deals with the interest of a Hindu in the property of a Joint Hindu Family governed
by Mitakshara Law. If the said prevision is contrasted with Sections 8 and 14, which deals with male and female, the said Sections deals with the self acquired
or separate property of a male Hindu and female. Whereas, Sub-section (3) deals with the Joint Hindu Family property. The Joint Hindu Family shall devolve by
testamentary or inte state succession, as the case may be under this Act arid not by survivorship. When this provision is contrasted with Section 6 prior to
amendment, which dealt with devolution of interest in a co-parcenary property in respect of a male Hindu, his interest in the property shall devolve by
survivorship upon the surviving members of the coparcenary and not in accordance with this Act. Therefore, by this substituted provision, the devolution of
interest by survivorship is completely abolished after coming into operation of 2005 Act. Section 30 of the Act provided for testamentary succession. The
explanation added to that Section made it clear that, the interest of a male Hindu in a mitakshara coparcenary property shall, notwithstanding anything
contained in the Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning
of the Section 30. i.e., he may dispose of his co-parcenary interest also by way of Will or other testamentary disposition. When the amended Section declared
that, on and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter
of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as
she would have had if she had been a son, the question which arise for consideration is, as Section 30 was not applicable to a female Hindu coparcener in a
mitakshara law, how her interest in that property could be disposed of and whether Section 30 is applicable to her. It is to clarify this, Sub-section (2) of
Section 6 is introduced. It is declared that, any property to which a female Hindu becomes entitled by virtue of Sub-section (1) shall be held by her with the
incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as
property capable of being disposed of by her by testamentary disposition. Thus, the equality is achieved with a male co-parcener who is vested with the said
power by virtue of explanation (1) to Section 30 of the Act. Therefore, by substituted Section 6, the daughter of a co-parcener in a Joint Hindu Family governed
by Mitakshara Law has been conferred the status of a co-parcener by birth and conferred same rights in the co-parcenary properties as she would have had if
she had been a son.
POINT No. 2
PARTITION" UNDER HINDU LAW
71. According to the true notion of an undivided mitakshara family, no individual member of that family whilst it remains undivided, can predicate of the joint
property, he that particular member - has a certain definite share, one-third or one-fourth. Partition, according to that law, consists in a numerical division of
the property, in other words, it consists in defining the shares of the co-parcemers in the joint property. Once the shares are defined, whether by an agreement
between the parties, or otherwise, the partition is complete. After the shares are so defined, the parties may divide the property by metes and bounds or they
may continue to live together and enjoy the property in common as before. The property ceases to be joint and immediately the shares are defined and
henceforth the parties hold the property as tenants-in-common. A disruption of joint family status by a definite and unequivocal indication to separate implies
separation in interest and in right although not immediately followed by a de facto actual division of the subject-matter. This may at any time be claimed by
virtue of the separate right. From the time of such disruption, each member holds his aliquot share as tenant-in-common irrespective of whether there is actual
division of the properties by metes and bounds. It is established law that actual physical division or partition by metes and bounds is not an essential ingredient
for the purpose of effecting severance of status. That is really a formality in the process of partition. Partition is a severance of joint status, and as such it is a
matter of individual violation. All that is necessary, therefore, to constitute a partition is a definite and unequivocal indication of his intention by a member of
joint family to separate himself from the family and enjoy his share in severalty. A partition may be effected without any instrument in writing. An instrument of
partition in respect of immovable property of the value of rupees 100 and upwards requires registration under Section 17(1) of the Indian Registration Act,
1908. An unregistered deed of partition is not admissible to prove the contents or the shares allotted. However, if it merely acknowledges a prior partition it is
admissible. An unregistered memorandum of partition can be relied on for collateral purpose of proving intention to separate. But an agreement which by itself
does not create any right or interest in immovable property but only a right to obtain an instrument on partition does not require registration. However, a
memorandum of family settlement being not a partition deed does not require registration. Partition does not, however, amount to a transfer of property as
partition means that the totality of the property of the family in which all the coparceners jointly had subsisting title would be transformed into separate titles of
the individual coparceners in respect of several items of properties allotted to them respectively.
72. The institution of suit for partition by a member of a joint family as an unequivocal intimation of his intention to separate, and there consequently is a
severance of his joint status from the date when it is instituted. A decree may be necessary for working out the results of the severance and for allotting
definite shares, but the status of the plaintiff as separate in estate is brought about by his assertion of his right to separate, whether the obtains a
consequential judgment or not. A suit must in substance be a suit for partition with a desire on the part of the plaintiff to hold his share in severalty without
being subject to the obligation of the joint status.
73. These concepts of partition as well understood in Hindu Law has no application, while interpreting amended Section 6 of the Act. The legislature has defined
'partition' for the purpose of Section, which alone is to be taken into consideration while interpreting Section 6 of the Act.
PARTITION UNDER SECTION 6 OF THE ACT
74. In Section 6 the word 'partition' has been defined. It is a very narrow definition of partition. As per the said definition a partition means,
(1) Partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908).
(2) Partition effected by a decree of the Court.
Unless the partition is evidenced by a registered document and hat come into existence prior to 20th day of December 2004, the daughter who has now been
conferred the status of a coparcener cannot be denied the right to the co-parcenary property which she has now acquired by birth. This provision became
necessitated because when the Tamil Nadu legislature introduced amendment in the year 1994 conferring right on a daughter, the status of a co-parcener and
made it clear that such a right is not available to a daughter in the joint family, if already partition has taken place, in order to deprive the legitimate share of a
daughter spurious documents came into existence to defeat the operation of the amendment. This experience weighed with the Parliament while enacting this
provision. Therefore, they made it clear a plea of partition if it is not supported by a registered deed of partition would not defeat the right of a daughter. Oral
partitions, memorandum of partitions, agreements, which can be fabricated, concocted, after this Amendment Act came into force by antidating them and thus
depriving the daughter of her legitimate right, had to be prevented. Therefore, in that background it is made clear that unless a partition is by a registered
instrument, the daughter's right to the property is not taken away. In other words, if the partition is not evidenced by a registered document, then, the
daughter of a coparcener who has been conferred equal right in coparcenary property with that of the son would be entitled to a share in the coparcenary
property as that of the son notwithstanding the fact that there was a partition of the coparcenary property as recognised under Hindu law vis-a-vis, the law of
partition.
75. The second mode recognized as per the definition of partition is, partition "effected by a decree of a Court". The word decree is defined under the Civil
Procedure Code 1908. The definition reads as under:
"decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the
parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the
rejection of a plaint and the determination of any question within Section 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order or dismissal for default.
76. It is a formal expression of an adjudication which so far as the Court expressing it conclusively determines the rights of the parties with regard to all or any
of the matters in controversy in the suit. A decree may be preliminary or final. In a partition suit, in a preliminary decree the Court declares the rights of the
parties 10 the property in dispute. In other words, the shares to which each members of a joint family in the said joint, family property or coparcenary property
is declared. The said decree is appealable. When a trial Court decrees a suit and the decree is challenged by a competent appeal, the appeal is considered as a
continuation of the suit, and when the appellate decree affirms, modifies or reverses the decree on the merits, the trial Court decree is said in law to merge in
the appellate decree, and it is the appellate decree which rules. However, what the Court does in a preliminary decree is only a declaration of shares. It does
not effect a partition. A partition is effected when a final decree is passed giving effect to the shares declared in the preliminary decree by allotting specific
share to the members of the family in the joint family property or the ancestral property or in both. Again, a final decree passed in a suit for partition is

appealable. Therefore, the decree passed by the trial Court merges with the appellate decree and it is the final decree passed by the appellate Court which
effects a partition. Therefore, it is the final decree of partition which has attained finality by which a partition is effected by a decree of Court. If a partition is
effected by a decree of the Court, thereby meaning a final decree passed by a Court has attained finality, then, the daughter of a coparcener who has been
conferred equal rights in the co-pareenary property under Section 6, would not be entitled to a share in the coparcenary property as that of the son. In this
regard it is useful to refer to the two decisions of the Supreme Court on the point.
Phoolchand and Anr. v. Gopal Lal MANU/SC/0284/1967 : AIR (1967) SC 1470:
We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if
circumstances justify the same and that if may be necessary to do so particularly in partition suits when after the preliminary decree some parties
die and shores of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even
after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specifically in partition
suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is
done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such
cases there is a decree deciding these disputed rights: if so, there is no reason why a second preliminary decree correcting the shares in a partition
suit cannot be passed by the court So far therefore as partition suits are concerned we have no doubt that if an event transpires after the
preliminary decree which necessitates a change in shares, the court can and should do so; and if there is a dispute in that behalf, the order of the
court deciding that dispute and making variation in shares specified in the preliminary decree already passed in a decree in itself which would be
liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the
present appeal with other kinds of suits in which also preliminary and final decree are passed. There is no prohibition in the Code of Civil Procedure
against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such
circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. In any case if two views are possible -
and obviously this is so became the High Courts have differed on the question - we would prefer the view taken by the High Courts which hold that
a second preliminary decree can be passed, particularly in partition suits where parties have died after the preliminary decree and shares specified
in the preliminary decree have to be adjusted We see no reason why in such a case if there is dispute, it should not be decided by the Court which
passed the preliminary decree, for to must not be forgotten that the suit is not over till the final decree is passed and the Court has Jurisdiction to
decide all disputes that may arise after the preliminary decree particularly in a partition such due to deaths of some of the parties. Where there can
be more than one final decree does not arise in the present appeal and on that we express no opinion. We therefore hold that in the circumstances
of this case it was open to the Court to draw up afresh preliminary decree as two of the parties had died after the preliminary decree and before the
final decree was passed. Further as there was dispute between the surviving parties as to devolution of the shares of the parties who were dead and
that dispute was decided by the trial Court in the present case and therefore the preliminary decree already passed was mended, the decision
amounted to a decree and was liable to appeal. We therefore agree with the view taken by the High Court that in such circumstances a second
preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if
there is dispute between surviving parties in that behalf and that dispute is decided for decision amounts to a decree. We should however like to
make it clear that this can only be done so long as the final decree has not been passed. We therefore reject this contention of the appellant.
S. Sai Reddy v. S. Narayana Reddy and Ors. : (1991) 3 SCC 647:
7. The crucial question, however, is as to when a partition can be said to have been effected for the purposes of the amended provision. A partition
of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement
by the parties, or by a decree of the court When a suit for partition is filed in a court, a preliminary decree is passed determining shares of the
members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by
metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the
partition is not complete. The preliminary decree which determines share does not bring about the final partition. For, pending the final decree the
shares themselves are liable to be varied on account of the intervening events. In the instant case, there is no dispute that only a preliminary
decree had been passed and before the final decree could be passed the amending Act came into force as a result of which Clause (ii) of Section 29-
A of the Act became applicable. This intervening event which gave shares to respondents 2 to 5 had the effect of varying shares of the parties like
any supervening development Since the legislation is beneficial and placed on the statute book with the avowed object of benefiting women which is
a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of
partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an
expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a
partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which
are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is
effected by metes and. bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast
section of the fair sex of the benefits conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of oral
partitions will spring up and nullity the beneficial effect of the legislation depriving a vast section of women of its benefits.
77. Therefore, it is clear that if on the date, i.e., 20th December, 2004, there is no partition effected by decree of the court thereby meaning a final decree for
partition has not reached finality, then, the daughter of a coparcener is entitled to equal share in the coparcenary property as that of a son and Section 6 is
applicable to such property. The legislative intention is clear. They wanted to give the benefit of this section to a daughter. Such a right, they did not wanted it
to be defeated by mere plea of partition as well understood under Hindu law or merely because a suit for partition is filed or a decree for partition has already
been passed by a trial Court. On those grounds they did not want to deny the daughter her legitimate share in the coparcenary property which ought to have
been granted to her on the day the Act came into force namely 17th June 1956.
78. A registered partition deed could not be prepared, antedated and registered after the coming into force of the Act, Similarly a final decree for partition
cannot be created or manipulated, just to deny the daughters their legitimate share in the coparcenary property, and a partition by registered instrument and a
final decree for partition that attained finality would reflect the bona fide conduct of the parties in the normal circumstances. They did not want those
transactions to be affected by the substituted Section 6 of the Act. Therefore a partition effected in the aforesaid two manner before 20th December 2004 were
kept away from the purview of Section 6. Except those two circumstances, whatever may be the course of conduct of the parties, the daughter of a coparcener
was conferred a right in such property equal to that of a son.
79. Therefore, the concept of partition and severance of the status as under Hindu Law has no application under the Act in view of the definition of partition by
way of Explanation to Sub-section (5) of Section 6 of the Act and it is only such partitions which are not affected by the effect of amended Section 6 of the Act.
POINT No. 3
WHAT IS THE RIGHT OF A MARRIED DAUGHTER?
80. The bill prepared by the Law Commission contained a provision making the amended provision not applicable to married daughters. That is precisely what is
contained in the amendments carried out to the Act by the legislatures of Karnataka, Andhra Pradesh, Maharashtra and Tamil Nadu. However, in the bill passed
by the Parliament we do not find the said provision. Rightly the said provision did not find favour with the representatives of the people and is deleted from the
original bill even before it is presented to the Parliament. Therefore, the intention of the Parliament is clearly manifest from this Act. Secondly, the marriage,
has no relevance to the succession or inheritance of the property. When a male Hindu marries, his right to succeed to a property or inherit a property is in no
way affected by the act of marriage. However, in the case of a daughter in a Hindu Family, a distinction was sought to be made. After her marriage as she
ceased to be a member of the Hindu Undivided Family and becomes a member of the Hindu Undivided Family of her husband, she was denied the right in the
undivided family of her father. If she did not marry, her right was in tact. The marriage had the effect of denuding her right to property in the family by birth. It
stands to no reason. Therefore, the Parliament consciously has not used the word 'married daughter' in the entire Section as the case in the earlier State
Amendment where they added an explanation, to exclude the married daughter. It is yet another indication and manifestation of legislative intent that they did
not make any distinction between a married daughter and an unmarried daughter in respect to their rights to the properties of her father who is a co-parcener
in a Hindu Undivided Family governed by Mitakshara Law. It is settled law that the intention of the Legislature is primarily to be gathered from the language
used, which means that attention should be paid to what has been said as also what has not been said. It is contrary to all rules of construction to read words
into an Act unless it is absolutely necessary to do so. Similarly, it is wrong and dangerous to proceed by substituting some other words for words of the statute.
Therefore, we cannot import by an interpretive process the word 'married daughters' in any form and in any context to defeat her rights conferred under
amended Section 6, when the legislative intention is expressed clearly and unambiguously without leaving any scope for interpretation. Thirdly, the language
employed and the declaration made in Section 6 makes the legislative intent explicit and clear, i.e., the daughter of a co-parcener shall by birth become a co-
parcenar in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have it if she had been a son. It
means whatever right the son possesses in a co-parcenary property is sought to be conferred on the daughter. The son would not lose his right in a co-
parcenary property because of his marriage. It is that right which is conferred on the daughter and, therefore, when by birth son acquires an interest in co-

parcenary property and retains the same, notwithstanding his marriage, when the daughter is also conferred the same right, it means she acquires a right by
birth in the co-parcenary property and she continues to hold the said right notwithstanding her marriage. The daughter's marriage will not put an end to the
right of the daughter to a co-parcenary property which she acquired by birth. If this is not the interpretation to be given to those words, then the Section would
be violative of Section 14 of the Constitution which declares that there cannot be any discrimination between person and person on the basis of sex. There
cannot be a distinction between a son and a daughter under the constitutional scheme. Further, any other interpretation would mean there will be a further
discrimination between a married daughter and an unmarried daughter, which is again opposed to the equality clause found in Article 14 of the Constitution.
Then the whole object of bringing about this amendment, by substituting the provision in the existing Act and declaring that the daughter would get a right by
birth in the same manner as son, would be deteated, if any interpretation is to be placed making a distinction between a married daughter and an unmarried
daughter or a married son and a married daughter. That is not the legislative intent and purpose. On the contrary, when such an attempt was made by the
State Legislatures and the interpretation placed on the aforesaid provision resulted in heart burning and also contrary to the constitutional mandate contained
in Article 14 of the Constitution, the Parliament taking note of these deficiencies and restrictions on the right of a married daughter advisedly has framed this
provision putting an end to any such controversies and conferring the benefit of the amendment on the married daughters also.
81. The Supreme Court in the case of Sa v i t a Sa m v e d i v . Un i o n o f I n d i a reported in 1996 SCC (L & S) 521, held as under:
A common saying, is worth pressing into service.
A son is a son until he gets a wife. A daughter is a daughter throughout her life.
The eligibility of a married daughter must be placed on a par with an unmarried daughter (for she must have been once in that state),
so as to claim the benefit.
Otherwise, it would be unfair, gender-biased and unreasonable and liable to be struck down under Article 14 of the Constitution. It
suffers from twin vices of gender discrimination inter se among the women on account of marriage and between a married daughter and
a married son.
EFFECT OF AMENDMENT ON KARNATAKA STATE AMENDMENT i.e., SUB-SECTION (d) OF SECTION 6-A
82. Intestacy, succession, joint family and partition is at entry No.5 in Concurrent List, Schedule-VII of the Constitution of India. Both the parliament and the
State Legislatures are competent to pass law in respect of the same. It is in pursuance of the power conferred under Article 245 of the Constitution of India the
Indian Parliament passed the Hindu Succession Act, 1956. Section 6 of the said Act dealt with devolution of interest in co-parcenary property. Section 6 made it
clear the devolution of interest in Mitakshara property is by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. No
female member including daughter was a member of Mitakshara co-parcenary. Therefore, the said provision did not confer any right on the daughter.
83. The Hindu Succession (Karnataka Amendment) Act, 1990 was enacted by the Karnataka Legislature inserting Section 6(A), (B) and (C) in the Hindu
Succession Act, 1956, Central Act 30/1956 after Section 6. The State Act received the assent of the President on 28.7.1994 and it became Karnataka Act
23/1994. By the aforesaid Amendment Act for the first time equal rights to daughters in co-parcenary property was conferred by the Karnataka State
Legislature. The said law was repugnant to Section 6. However, as the said Amendment Act received the assent of the President, though the State Law was
repugnant to the Central Law, State Law prevailed over the Central Law. Sub-section (d) of Section 6(a) stipulated that the right conferred on a daughter in the
coparcenary property by birth shall not apply to a daughter manied prior to or to a partition which had been effected before the commencement of the Hindu
Succession (Karnataka Amendment) Act, 1990. The said provisions became a part of the Act. Thereafter, the Parliament passed the Hindu Succession
(Amendment) Act, 2005. In the amended provisions no distinction is made between the married daughter and unmarried daughter. Similarly, the word partition
is intended to be confined only to a partition evidenced by a registered deed of partition or partition effected by a decree of a Court. These two provisions are
repugnant to Sub-section (d) of Section 6-A. The question is whether both these provisions can co-exist or intended to subsist. In order to answer this question
it is necessary to refer to Article 254 of the Constitution which reads as under:
Ar t i cl e 2 5 4 . I n co n s i st e n cy b e t w e e n l o t o s m a d e b y Pa r l i a m e n t a n d l a w s m a d e b y t h e Le g i sl a t u r e s o f St a t e s
(1) If any provision of a law made by the legislature of State is repugnant to any provision of a law made by Parliament which
Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the
Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made
by the Legislature of such State, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State
shall, to the extent of repugnancy, be void.
(2) Where a law made by the Legislature of State with respect to one of the matters enumerated in the Concurrent List contains any
provision repugnant to the previsions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law
so made by the legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent,
prevail in the State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same
matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
84. This Article was the subject matter of interpretation by the Apex Court on various occasions. In the case of T. Ba r a i v . H e n r y A h H o e reported in
MANU/SC/0123/1982 : AIR 1983 SC 150, the Supreme Court held as under:
There is no doubt or difficulty as to the law applicable. Article 254 of the Constitution makes provision firstly, as to what would happen in the case of
conflict between a Central and State law with regard to the subjects enumerated in the Concurrent List, and secondly, for resolving such conflict
Article 254(1) enunciates the normal rule that in the event of a conflict between a Union and State Law in the concurrent field, the former prevails
over the latter. Clause (1) lays down that if a State law relating to a concurrent subject is 'repugnant' to a Union law relating to that subject, then,
whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. To the
general rule laid down in Clause (1), Clause (2) engrafts an exception, viz., that if the President assents to a State law which has been reserved for
his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the union, both laws dealing with a concurrent subject. In such a
case, the Central Act will give way to the State act only to the extent of inconsistency between the two, and no more. In short, the result of
obtaining the assent of the President to State Act is inconsistent with a previous Union law relating to a concurrent subject would be that the State
Act will prevail in that State and override the provisions of the Central Act in their applicability to that State only. The predominance of the state law
may however be taken away if Parliament legislates under the proviso to Clause (2). The proviso to Article 254(2) empowers the Union Parliament
to repeal or amend a repugnant State law even though it has become valid by virtue of the President's assent. Parliament may repeal or amend the
repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the same matter'. Even though the
subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent
law of parliament creating repugnancy is made. A State low would be repugnant to the Union law when there is direct conflict between the two laws.
Such repugnancy may also arise where both laws operate in the same filed and the two cannot possible stand together, the law made by parliament
shall prevail over the State law under Article 254(1). That being so, when Parliament stepped in and enacted the Central Amendment Act, it being a
later law made by Parliament "with respect to the same matter", the West Bengal Amendment Act stood implied repealed.
85. In the case of Th i r u m u r u g a Ki r u p a n a n d a V a r i a y a Th a v a t h i r u Su n d a r a Sw a m i g a l M e d i c a l Ed u ca t i o n a l a n d Ch a r i t a b l e Tr u st v . St a t e o f Ta m i l

N a d u reported in MANU/SC/0601/1996 : AIR 1996 SC 2384, the Apex Court held as under:
The fact that the State Act has received the assent of the President would be of no avail because the repugnancy is with the Central Act which was
enacted by Parliament after the enactment of the State Act. In view of the proviso to Sub-article (2) of Article 254 parliament could add to, amend,
vary or repeal the State act In exercise of this power Parliament could repeal the State Act either expressly or by implication.
86. The Constitution Bench of the Apex Court in the decision rendered in the case of M . K a r u n a n i d h i v . Un i o n o f I n d i a reported in MANU/SC/0159/1979 :
1979 (3) SCC 431 held as under:
Before any, repugnancy can arise the following conditions must, be satisfied. 1. That there is a clear and detect inconsistency between the Central
Act, and the Sate Act. 2. That such an inconsistency is absolutely irreconcilable. 3. That the inconsistency between the provisions of the two acts is
of such a nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one

without disobeying the other.
87. The Supreme Court In the case of M .P. Sh i k sh a k Co n g r e ss v . R.P. F. Co m m i ss i o n e r , Ja b a l p u r reported in MANU/SC/0857/1999 : AIR 1999 SC 443,
held as under:
...Under Article 254(1) of the Constitution. If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made
by parliament, which Parliament is competent to enact, then subject to the provisions of Clause (2), the law made by the parliament, whether
passed before or after the law made by the Legislature of such State, shall prevail and the law made by the Legislature of the State shall, to the
extent of the repugnancy, he void. The ordinary rule, therefore, is that when both the State Legislature as well as Parliament are competent to
enact a law on a given subject. It is the law made by Parliament which will prevail. The exception which is carved out is under Clause (2) of Article
254. Under this Clause (2) where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent list
contains any provision repugnant to the provisions of an earlier law made by Parliament, then the law so made by the Legislature of such State
shall, if it has been reserved for the consideration of the President and has received his assent, prevail in the State. Provided that nothing in this
clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or
repealing the law so made by the Legislature of the State.
88. Dealing with the question of implied repeal, the Supreme Court in the case of Ku l w a n t Ka u r v . Gu r d i a l Si n g h M a n n reported in MANU/SC/0182/2001 :
AIR 2001 SC 1273, held as under:
On the doctrine of implied repeal, Mr. Mehta contended that procedural law must be having a meaningful existence without being in conflict with a
preliminary legislation. Undoubtedly, the doctrine of implied repeal is not to be favoured but where a particular provision cannot co-exist or intended
to subsist in the event of there being the repugnancy between Central and State legislature the Courts cannot but declare it to be so on the ground
of repeal by implication. Uniformity of law, being the basic characteristics of Indian jurisprudence cannot be termed to be at sufferance by reason of
a state Legislation which runs counter to the Central legislation. It is not necessary that one legislation should be on the positive side whereas the
other one in the negative. Such a stringent requirement is not the requirement in order to bring home the issue of repugnancy, but all the same it
might result when both the legislations cover the same field. The observation find support from the decision of this Court in Zaverbhai Amaidas v.
The State of Bombay MANU/SC/0040/1954 : (1955) 1 SCR 799 : AIR 1954 SC 752 : 1954 Crl. L.J. 1822 wherein this Court observed (para 11):
It is true, as already pointed out, that on a question under Article 254(1) whether the Act of Parliament prevails against a law of the
State, no question of repeal arises; but the principle on which, the rule of implied repeal rests, namely, that if the subject-matter of the
later legislation is identical with that of the earlier, so that they cannot both stand together; then the earlier is repealed by the later
enactment, will be equally applicable to a question under Article 254(2) whether the further legislation by Parliament is in respect of the
same matter as that of the State law.
89. Therefore, it is clear the proviso to Article 254(2) empowers the Union Parliament to repeal or amend a repugnant State law even though it has become
valid by virtue of the President's assent Parliament may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the
State law with respect to the 'same matter'. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State
law will become void as soon as the subsequent law of parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is
direct conflict between the two laws. The law made by parliament shall prevail over the State law. Where a particular provision cannot co-exist or intended to
subsist in the event of there being repugnancy between the Central and the State Legislature, the Courts cannot but declare it to be so on the ground of repeal
by implication. If the subject matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is
repealed by the later enactment, which is the principle on which the rule of implied repeal rests.
90. Therefore, when the Parliamentary legislation which was subsequent in the Karnataka Amendment conferred the status of a co-parcenar on the daughter of
a co-parcenar and gave right by birth in the co-parcenary property and did not exclude the married daughters from such status and right expressly or by
necessary implication, the Central Act to that extent is repugnant to the State law. Similarly, the word partition used in the State Law is too wide and the
Central law defines the word partition and giving it a narrow meaning for the purpose of Section 6. Again the said definition runs repugnant to the State law. As
the amended law is passed by the Parliament it prevails over the State law and the law passed by the State stands impliedly repealed to the extent of
repugnancy. As such, the married daughter cannot be deprived of her right to a share in the co-parcenary property by birth. With the passing of the
Amendment Act Section 6-A(d) stands repealed. Married daughter is entitled to equal share with the son in the coparcenary properties.
91. Therefore, a married daughter is also a co-parcener and is entitled to equal share with the son in the co-parcenary properties and her marriage in no way
affects her right to equal share in the co-parcenary property. Even after marriage she continues to have the same right which she had before marriage, as her
right to coparcenary property flows from her birth as that of the son. To find out what is the right of a daughter in a coparcenary property, find out what is the
right of the son. Whatever rights the son has in the coparcenary property, by virtue of the amendment the daughter also has such right. That is the object
behind the legislation i.e., to achieve equality in the right of inheritance.
POINT No. 4 RETROSPECTIVE OPERATION
92. Literally defined, a retrospective law is a law that looks backward or on things that are past and a retroactive law is one that acts on things that, are past.
In common use, as applied to statutes, the two words are synonymous, and in this connection may be broadly defined as having reference to state of things
existing before the Act In question. A statute which operates upon acts and transactions which have not occurred when the statute takes effect, that is, which
regulates the future, is a prospective statute. On the other hand, a retrospective or retroactive law is one which takes away or impairs vested rights acquired
under existing laws, or creates new obligations and imposes new duties, or attaches new disabilities in respect of transactions already past.
93. The Parliament in India is endowed with plenary powers of legislation and it is competent to legislate with prospective or retrospective effect. Retrospective
legislation is one of the incidents of plenary legislative powers. Under the Constitution there is only one restriction imposed upon the power of retrospective
legislation under Article 20. Every legislation is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation.
94. The question whether a statute operates prospectively or retrospectively is one of the legislative latent. If the terms of a statute are clear and unambiguous
and it is manifest that the Legislature intended the Act to operate retrospectively, it must unquestionably be so construed. If, however, the terms of a statute
do not of themselves make the intention certain or clear, the statute will be presumed to operate prospectively. While considering the question of the
retrospective operation of the statute, the nature of the right affected must first be considered. All laws which affects substantive rights or vested rights
generally operate prospectively and there is a presumption against their retrospectivity if they affect vested rights and obligations unless the legislative intent is
clear and compulsive. The rule that a statute is not to have retrospective operation is only applicable where it is doubtful from the language used whether or
not it was intended to have such operation. Where language of a statute plainly gives it a retrospective operation, the rule has no application, for, of course, it
is obviously competent, for the Legislature, if it pleases, in its wisdom to make the provisions of an Act of Parliament retrospective. Where a section of a statute
is amended, the original ceases to exist and the new section supersedes it and becomes a pant of the law just as if the amendment had always been there. The
amendment is retrospective in operation. Curative statutes are obviously retroactive, and hence entitled, as a general rule, to retrospective operation. Being
retroactive in their very nature, they will not usually be given any prospective effect. Being subject to a liberal construction, any doubt should be resolved in
favour of retrospective operation. Nevertheless, there are even limitations on the extent of the retroactive operation of curative acts. Obviously, they cannot
violate provisions of the constitution. Nor should they interfere with or destroy vested rights of third parties. A retrospective statute contemplates the past and
gives to a previous transaction some different legal effect from that which it had under the law when it occurred or transpired. A retrospective law is one which
reaches back to and gives to a prior transaction some different legal effect from that which it had under the law when it took place. If an Act provides that as at
a past date the law shall be taken to have been that which is not, that Act is deemed to be retrospective.
95. The Supreme Court in the case of B. Pr a b h a k a r Ra o a n d Or s. e t c. v . St a t e o f A n d h r a Pr a d e s h a n d Or s. e t c. reported in AIR 1988 SC 210, held as
under:
Is it not open to the Court to give retrospectively to a legislation to which the legislature plainly and expressly refused to give retrospectively.
While it is a general rule of law that statutes are not to operate retrospectively, they may so operate by express enhancement, by necessary
implication from the language implied or where the statute is explanatory or declaratory or where the statute is passed for the purpose of protecting
the public against some evil or abuse or where the statute engrafts itself upon existing situations etc., etc., But, it would be incorrect to call a
statute 'retrospective', "because a part of the requisites for its action is drawn from a time antecedent to its passing.
We must further remember, quite apart from any question of retrospectivity, that, unlike in the United Kingdom here in India we have a written

Constitution which confers justiciable fundamental rights and so the very refusal to make an Act retrospective or the non-application of the Act with
reference to a date or to on event that took place before the enactment may, by itself create an impermissible classification justifying the striking
down of the non-retroactivity or non-application clause, as offending the fundamental right to equality before the law and the equal protection of
the laws. That is the situation that we have here.
The operation of the ordinance or the Act limiting the field of operation and introducing a classification which in order to be sustained must be
shown to be reasonable and to have a nexus to the object to be achieved besides not being arbitrary.
96. In Bh a g a t Ra m Sh a r m a v . Un i o n o f I n d i a a n d Or s. AIR 1938 SC 740 it is held as under:
It is a matter of legislative practice to provide while enacting an amending law, that an existing provision shall he deleted and a new provision
substituted. Such deletion has the effect of repeal of the existing provision. Such a law may also provide for the introduction of a new provision.
There is no real distinction between repeal' and an 'amendment'.
97. Keeping in mind these legal principles we have to find out from the language used in substituted Section 6 of the Act, the amendment is prospective or
retrospective. The first indication is found in Section 3 of the Amendment Act 39 of 2005. The words used read as follows:
3 . Su b s t i t u t i o n o f n e w se ct i o n f o r Se ct i o n 6 .- for Section 6of the Principal Act, the following section shall be substituted.
WHAT IS THE EFFECT OF SUBSTITUTION
98. A Constitution Bench of the Apex Court in the case of Sh a m r a o V. Pa r u l e k a r a n d Or s. v . D i s t r i c t M a g i s t r a t e Th a n a , Bo m b a y a n d Or s . reported in

MANU/SC/0017/1952 : AIR 1952 SC 324, dealing with the scope of the substitution of a provision by way of amendment, held as under:
The construction of an Act which has been amended is now governed by technical rules and we must first be clear regarding the proper canons of
construction. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself or apart of itself, into the earlier,
then the earlier Act, must thereafter be read and construed (except where that would lead to a repugnancy, in consistency or absurdity) as if the
altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter these is no need to refer to the
amending Act at all. This is the rule in England. It is the law in America. It is the law which the Privy Council applied to India.
99. In the case of Sha Chunnilal Sohanraj v. T. Gurushantappa 1972 (1) Mys. L.J 327, a Division Bench of this Court held as under:
An amending act is not regarded as an independent statute. The statute in its old form is superseded by the statute in its amended form, the
amended section of the statute taking the place of the original section, for all intents and purposes as if the amendment had always been there. The
amendment should be considered as if embodied in the whole statute of which it has become a part Unless a contrary intent is clearly indicated, the
amended statute is regarded as if the original statute had been repealed and the whole statute re-enacted with the amendment.
100. Yet another Constitution Bench of the Apex Court in the case of Sh y a m Su n d e r a n d Or s. v . Ra m Ku m a r a n d A n r . MANU/SC/0405/2001 : AIR 2001 SC
2472 was dealing with the question, whether a substituted provision necessarily means the amended provisions are retrospective in nature, after reviewing the
entire case law on the point held, a substituted Section in an Act is the product of an amending Act and all the effects and consequences that follow in the case
of an amending Act the same would also follow in the case of a substituted Section in an Act. Further it was held, it is well settled that where an amendment
affects vested rights the amendment would operate prospectively unless it is expressly made retrospective or its retrospective operation follows as a matter of
necessary implication. Ordinarily when an enactment declares the previous law, it requires to be given retroactive effect. The function of a declaratory statute is
to supply an omission or explain previous statute and when such an Act is passed, it comes into effect when the previous enactment was passed. The legislative
power to enact law includes the power to declare what was the previous law and when such a declaratory Act is passed invariably it has been held to be
retrospective. Mere absence of use of word 'declaration' in an Act explaining what was the law before may not appear to be a declaratory Act but if the Court
finds an Act as declaratory or explanatory it has to be construed as retrospective. Further, they went on to hold, that the function of a declaratory or
explanatory Act is to supply an obvious omission or to clear up doubts as to meaning of the previous Act and such an Act comes into effect from the date of
passing of the previous Act.
101. Therefore, it is clear from the aforesaid Constitution Bench judgment of the Apex Court, a vested right can be taken away by way of an amendment by the
legislature by expressly saving so or by implication. Secondly, a declaratory law is retrospective in operation because the object of such declaratory law is to
supply the omission. In the instant case, in 1956 when the Act was passed, the daughters of a co-parcener was not treated as co-parcener nor any right in the
co-parcenary property by birth was conferred on her. Now, by a declaration such a right is sought to be conferred. It is done by way of substitution. In other
words, the legislative intent is to supply the omission in the original Act. The parliament has not kept any one in doubt about their intention. The effect is the
Act as enacted in 1956 is to be read and construed as if the altered words/new section had been written into the earlier Act with the pen and ink and the old
Section/Words scored out, so that thereafter there is no need to refer to the amending Act at all. The constitutional validity of the substituted section is not
under challenge. On the contrary the substituted section is in conformity with the constitutional provision. The effect is old Section 6 is superseded by the new
Section 6, the amended section taking the place of the original section, for all intents and purposes as if the amendment had always been there. This is the way
the parliament has expressly made its intention clear to the effect the amendment is retrospective.
102. Secondly though the opening words of the section declares that on and from the commencement of the Hindu Succession (Amendment) Act, 2005, the
daughter of a coparcener in a joint family governed by the Mithakshara is conferred the status of coparcener, it is expressly stated that she becomes a
coparcener by birth. Conferment of the status is different from conferring the rights in the coparcenery property. The right to coparcenery property is conferred
from the date of birth, which necessarily means from the date anterior to the date of conferment of status, and thus the Section is made retro active. By such
express words the amended section is made retrospective.
103. Thirdly, the proviso to Section 6(1) makes the intention of the parliament manifestly clear. The Parliament has expressly stated in the proviso to Sub-
section (1) of Section 6 the substituted provision that the declaration of right in favour of a daughter as a co-parcener though it takes effect by birth, i.e.
anterior to the amendment, the same would not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property
which had taken place before the 20th day of December 2004. The way this proviso is expressed makes it clear the substituted provision is retrospective in
operation. By substitution it is made clear that this provision is there in the principal Act from 1956 itself. But, as the amendment came into force only in 2005,
the question would arise that what should happen to the transactions between 1956 and 2005. It is in this context the Parliament has expressly stated though
the right by birth is given from 1956, if the dispositions, alienations including partitions, testamentary dispositions which had taken place subsequent to 1956
and before 20th December 2004 those transactions are not affected. This conferment of right by birth would not invalidate any of the aforesaid disposition of
property. Therefore, the intention is clear. Though this provision is made retrospective, if third party interests have crept in or even the co-parceners on the
assumption that it has become their separate property after the partition by way of registered partition deed or effected by a decree of the Court has made
improvements or alienated the properties or parted with property by testamentary disposition, those transactions cannot be reopened. It is clear that,
declaration of right of the daughter of a co-parcenar and conferment of right by birth shall not affect or invalidate any "disposition" or "alienation" including any
partition or testamentary disposition of property, which have taken place before the 20th day of December 2004. The amendment Act received the assent of the
President of India on 5th September, 2005, and came into force from 9th September, 2005. If the amendment Act is prospective in operation the amended law
would not in any way invalidate any disposition, or alienation including any partition or testamentary disposition which had taken place before 20th December
2004. Then the entire proviso would have been redundant. If the proviso had not been introduced, all the dispositions, alienations including partition and
testamentary dispositions would have to be set aside or declared not effecting the interest of the daughter of the co-parcener who was not a party to such
transactions. It. is because the legislative intent was to give retrospective effect to the amended provision. Being conscious of the fall out of the retrospective
operation of this amended provision, the legislature stepped in and introduced a proviso to protect the interest of third party who have acquired interest in
those properties. This is yet another clear manifestation of the intention of the legislature in making this provision retrospective. Therefore, the substituted
provision is retrospective in operation as is expressly declared so in the Section itself. It is not prospective.
POINT No. 5
PENDING PROCEEDINGS
104. The Parliament was conscious from the day the Act came into force till the Amendment Act, throughout the country there would be innumerable partition
suits at various forums at various stages. Suits may be pending in the trial Courts for partition and separate possession. In some cases it is possible decrees are
passed and they are under challenge in regular appeals. Similarly, the said decrees may be the subject matter of regular second appeals pending in the High
Courts. The question is, whether these amended provisions would have any effect on the pending litigation. If a suit is filed for partition by any of the members

of the family either seeking a partition in respect of coparcenary property or a suit filed by a member of the joint family including a female heir in respect of
coparcenary property, on the death of a coparcener as provided under proviso to Section 6 of the unamended provision, the female members would be entitled
to equal share with the sons in the share of the deceased coparcener. If the suit is between coparceners then each of them would be entitled to equal share and
no female member of the joint family would be entitled to any share. By virtue of these substituted provision once a daughter is given the status of a
coparcener by birth even in respect of suits between coparceners with the expanded definition of coparcenary she would be entitled to a share equal to that of a
son. If a daughter is claiming a share in her father's share in coparcenary property, as a coparcener now with the substituted provision she would be entitled to
an equal share in the coparcenary property itself, in addition to an equal share in her father's property with others. Though with the filing of the suit for
partition there is a severance of joint family status, by such act the joint family properties would not get partitioned. It is divided only when there is a final
decree for partition. The intention was to give a right to the daughter in respect of the properties which are the subject matter of such litigation. To deny right
to a daughter coparcener, partition has to be effected by a decree of a Court before 20th December 2004. Therefore, they have consciously chosen the word,
"partition effected by a decree of the Court". Then the property is not available for partition. The daughter is not entitled to a share. In other words, they have
made it applicable to all the pending proceedings.
105. It is well understood in suits of partition, first there should be a preliminary decree, declaring the rights of the parties, thereafter in terms of the
declaration of the preliminary decree in final decree proceedings the partition is effected by metes and bounds. Therefore, only in the case of a partition
effected by a decree of Court, when it attains finality, a daughter of a coparcener is deprived of the benefit of the substituted provision. Therefore, this
substituted provision applies to the pending proceedings in the trial Court, the Appellate Court, the second Appellate Court where the preliminary decree or a
final decree is challenged. The language employed by the Parliament is clear, unambiguous and it also clearly demonstrates the intention of the Parliament to
make this provision retrospective and give the benefit of the right of a co-parcener which devolves by birth on daughters.
106. Whether the change in the law will also affect pending appeals or not was the question considered by the Apex Court in the case of La k s h m i N a r a y a n
Gu i n a n d Or s . v . N i r a n j a n M o d a k MANU/SC/0316/1984 : 1985 (1) SCC 270 and the observations made at paragraph-9 are as under:
9. That a change in the law during the pendency of an appeal has to be taken into account and account and will govern the rights of the parties was
laid down by the court in Ram Sarup v. Munshi MANU/SC/0401/1962 : (1963) 3 SCR 858 : AIR 1963 SC 553, which was followed by this Court in
Mutta v. Godhu MANU/SC/0373/1969 : (1970) 2 SCR 129 : AIR 1971 SC 89. We may point out that in Dayawati v. Inderjit MANU/SC/0022/1966 :
(1966) 3 275 : AIR 1966 SC 1423 at p. 1426, this Court observed:
If the new law speaks in language, which expressly or by clear intendment, takes in even pending matters, the Court of trial as well as
the Court of appeal must have regard to an intention so expressed, and the Court of appeal may give effect to such a law even after the
judgment of the/Court of first instance....
107. Again the Apex Court in case of Un i t e d Ba n k o f I n d i a , Ca l cu t t a v . Ab h i j i t Te a Co . Pv t . Lt d . a n d Or s . MANU/SC/0551/2000 : AIR 2000 SC 2957 has
observed thus:
It is well settled that it is the duty of a court whether it is trying original proceedings or hearing an appeal, to take notice of the change in the law
affecting pending actions and to give effect to the same. If the law states that after its commencement, no suit shall be "disposed of or "no decree
shall be passed" or "no court shall exercise powers or jurisdiction". The Act applied even to the pending proceedings and has to be taken judicial
notice by the Civil Court.
108. In this background the explanation makes it clear mere passing of a decree for partition whether by the trial Court or by the appellate Courts is not
enough. Till a partition is effected by a decree of a Court, thereby meaning till the decree for partition attained finality, the daughter cannot be deprived of her
legitimate right in the said property. Therefore, the substituted/amended Section applies to all pending proceedings as the partition is not yet effected by a
decree of the Court.
POINT No. 6 VESTED RIGHT OF
(a) OTHER FEMALE RELATIVES
109. Section 6 prior to amendment dealt with devolution of interest of a male Hindu of a Mitakshara co-parcenary property after the commencement of the
Hindu Succession Act, 1956. The reason being only a male could be a member of a Mitakshara co-parcenary. Therefore, the said Section did not refer to a
female. The proviso to Section 6 before amendment provided that when a Hindu male dies after the commencement of the Act, having at the time of his death,
an interest in a Mitakshara coparcenary property, if he had left him surviving female relative specified in Class I of the Schedule or a male relative specified in
that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by tetamentary or
intestate succession, as the case may be under this Act and not by survivorship. The female relatives in Class I are, daughter, widow, mother, daughter of
predeceased son, widow of a predeceased son and widow of a predeceased son of a predeceased son. Now, by Amendment Act of 2005, old Section 6 stands
repealed, the amended Section is substituted, conferring on the daughter of a co-parcenar, the right of a coparcener in a Joint Hindu Family. Thus, a daughter's
interest is taken care of. Therefore, new the question is, if a male Hindu dies before the commencement of the Amended Act, the succession opens and what is
the right of the male and female relative. Under the substituted Section, no provision is made for female relative other than the daughter. After the
commencement of the substituted provision, how their rights are to be determined? Do they have a right? If a right is accrued to them and vested in them,
what would be the effect of the substituted provision, viz-a-viz their right? Does it amount to taking away their vested right.
110. It. is in this context when the substituted Section is silent, we have to resort to the General Clauses Act, 1897.
111. Section 6 of the General Clauses Act, 1897 reads as under:
6 . Ef f e ct o f r e p e a l . - Where this Act, or any [Central Acts] or Regulation made after the commencement of this Act, repeals any enactment hitherto
made or hereafter to be made, then, unless a different intention appears, the repeal shall not-
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or
punishment as aforesaid.
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment
may be imposed as if the repealing Act or Regulation had been passed.
112. A power to make a law with respect to the topics committed to Parliament or State Legislatures carries with it a power to repeal a law on those topics.
Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision. Substitution thus combines repeal and fresh
enactment. Since repeal of a law takes effect from the date of repeal and the law repealed remains in operation for the period before its repeal without
assistance of any saving clause for transactions past and closed, it can be retrospectively amended to affect such transactions even after its repeal. Section 6 of
the General Clauses Act applies to all types of repeals. The section applies whether the repeal be express or implied, entire or partial or whether it be repeal
simpliciter or repeal accompanied by fresh legislation. The effect of Clauses (c) to (e) of Section 6, General Clauses Act is, to prevent the obliteration of a
statute in spite of its repeal to keep intact rights acquired or accrued and liabilities incurred during its operation and permit continuance or institution of any
legal proceedings or recourse to any remedy which may have been available before the repeal for enforcement of such rights and liabilities. The distinction
between what is, and what is not a right preserved by the provisions of Section 6, General Clauses Act is often one of great fineness. What is unaffected by the
repeal of a statute is a right acquired or accrued under it and not a mere "hope or expectation of", or liberty to apply for, acquiring a right. A distinction is
drawn between a legal proceeding for enforcing a right acquired or accrued and a legal proceeding for acquisition of a right. The former is saved whereas the
latter is not. The question whether a right was acquired or a liability incurred under a statute before its repeal will in each case depend on the construction of
the statute and the facts of the particular case. General savings of rights accrued, and liabilities incurred under a repealed Act by force of Section 6, General
Clauses Act, are subject to a contrary intention evinced by the repealing Act. In case of a bare repeal, there is hardly any room for a contrary intention; but

when the repeal is accompanied by fresh legislation on the same subject, the provisions of the new Act will have to be looked into to determine whether and
how far the new Act evinces a contrary intention affecting the operation of Section 6, General Clauses Act. The line of enquiry would be, not whether the new
Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them, for unless such an intention is manifested by the new
Act, the rights and liabilities under the repealed Act will continue to exist by force of Section 6, General Clause Act. It is the repealing Act and not the Act
repealed which is to manifest the contrary intention so as to exclude the operation of Section 6. The silence of the repealing Act is consistent and not
inconsistent with Section 6 applying.
113. The amended Section is silent about the rights of other female relatives of a Hindu male dying before the commencement of the amended Act. There is
nothing in the amended provision which evinces a contrary intention affecting the operation of the proviso to the unamended Section 6. The amended Section
do not manifest an intention to destroy the rights conferred under the proviso to the amended Section. Sub-section (3) of the amended provision provides only
for devolution of the interest on the death of a Hindu, after the amendment Act. In the case of a male, if he has left behind a female relative, the proviso to
Section 6 applies, as the amended provision makes no provision for such a contingency. Therefore, the unamended Section remains in operation for the period
before this repeal.
114. However, while determining the share of the male Hindu who has died before the commencement of the amended Act, i.e. 9.9.2005, who had an interest
in a Mitakshara coparcenary property, if he has left him surviving a female relative, his share is to be determined treating his daughter also as a coparcener.
Thereafter in the notional partition, the share to be allotted to him devolves as per proviso to the unamended Section 6 of the Act. Thus, the vested right
accrued to the other female members is not affected by the amendment, as the said vested light is not taken away expressly or by necessary implication by the
Parliament. May be the extent of their share may be diminished but it does not amount to taking away the vested right. That is the sacrifice the other female
members who are none other than the mother, grandmother, a grand daughter, has to make in favour of a daughter.
115. Therefore, in so far as other female members left behind by a male co-parcener dying before the commencement of the Amendment Act, succession to
this property is governed by the unamended Section 6 by virtue of Section 6 of the General Clauses Act.
(b) OTHER MALE MEMBERS
116. In a co-parcenary property, the co-parcener acquires right by birth. Once he is born, the right in a coparcenary property vests in him. This is a vested
right. But what is the extent of that vested right, is not determined on the date of his birth. Though a co-parcenar gets a right in the coparcenary property by
birth but the share of such co-parcenary is not definite and it will be fluctuating with the births and deaths of co-parcenars. Therefore, no co-parcener can say
with definiteness what his share at any point of time. The share to which a co-parcener is entitled to, is determined at a partition. On partition, his share is
ascertained, whereas on birth, the right vests in a co-parcener. It is also well settled that in a partition suit, even after a preliminary decree, depending upon
the intervening circumstances like births and deaths, the share allotted in a preliminary decree can be varied by the Court in the final decree proceedings till the
properties are partitioned by metes and bounds. The right to a share is a vested right, but the extent of that share is not a vested right.
117. It is contended that once succession opens with the death of a coparcener, the share of the other coparceners are also determined. Even though no
partition by metes and bounds takes place immediately, the said share cannot be altered, as it is a vested right. A vested right cannot be taken away by
amendment. In support of this contention, they relied on a decision of the Division Bench of this Court in the case of M . Pr i t h v i r a j a n d Or s. v . Sm t .
Le e l a m m a N . a n d Or s. MANU/KA/7554/2007 : 2008 (4) KCCR 2333 where relying on a judgment of the Apex Court in the case of Sheela Devi and Ors. v. Lal
Chand and Anr. 2007 (2) Civil LJ 364 it was held, the amended provisions of the Hindu Succession Act, 2005 are not applicable to the facts of the case, since
the succession had already opened in the year 1969 on the demise of K. Doddananjundaiah. The aforesaid judgment do not lay down any law. As is clear from
the aforesaid observations the amended Act is not applicable to the facts of the case. The said judgment was rendered following the judgment of the Apex
Court in the case of Sheela Devi's case where the Supreme Court held as under:
12. The principle of law applicable in this case is that so long a property remains in the hands of a single person, the same was to be treated as a
separate property, and thus such a person would be entitled to dispose of the coparcenary property as the same were his separate property, but, if
a son is subsequently born to him or adopted by him, the alienation whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son
cannot object to alienations so made by his father before he was born or begotten (see C. Krishna Prasad v. CIT). But once a son is born, it
becomes a coparcenary property and he would acquire an interest therein.
21. The Act indisputably would prevail over old Hindu Law. We may notice that the Parliament, with a view to confer right upon the female heirs,
even in relation to the joint family property, enacted Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of
Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application. Sub-section
(1) of Section 6 of the Act governs the law relating to succession on the death of a coparcener in the event the heirs are only male descendants.
But, proviso heirs appended to Sub-section (1) of Section 6 of the Act creates an exception. First son of Babu Lal, viz., Lal Chand, was, thus, a
coparcener. Section 6 is exception to the general rules. It was, therefore, obligatory on the part of the plaintiffs-respondents to show that apart
from Lal Chand, Sohan Lal will also derive the benefit thereof. So far as the second son Sohan Lal is concerned, no evidence has been brought on
records to show that be was born prior to coming into force of Hindu Succession Act, 1956.
118. However, the Supreme Court after referring to the aforesaid judgment, in the case of Bh a n w a r Si n g h v . Pu r a n a n d Or s . MANU/SC/7141/2008 : (2008)
3 SCC 87 held as under:
22. In that case, as noticed hereinbefore, Babu Ram had no son in the year 1922 but a son, Lal Chand, was born to him in the year 1938 and
another son, Sohan Lal, was born in 1956. It was in the aforementioned situation, this Court held that a joint family revived on the birth of Lal
Chand. This Court, in that view of the matter also opined that as there was no proof as to whether the second son was born after the coming into
force of the Hindu Succession Act, it was held that his heirs were not entitled to take the benefit of the coparcenary interest.
23. Sheela Devi, therefore, is not applicable to the fact of the present case.
119. Therefore, the aforesaid judgments are purely on the facts of those cases and they were not really interpreting the amended provisions. Neither the Apex
Court nor the High Court, in the aforesaid decisions were interpreting the amended section and they have not laid down any law. Therefore, the aforesaid
judgments are of no assistance.
120. Even before the commencement of the amended Section 6, if succession opened and a co-parcenar acquires a specific share in the co-parcenary property,
which vests in him on the date the succession opens, it is open to the legislature in exercise of its plenary power to take away such vested right by making the
law retrospective. It is only when the amended law is silent about its application or ambiguous, when the Court is called upon to interpret such provision, the
Court cannot place an interpretation which would take away a vested right, especially to matters of succession. But, the said Rule has no application when the
legislature expressly or by necessary implication makes its intention clear by making such amended law retrospective. It is settled principle of law the,
legislature has the power to take away a vested right by enacting the law and by expressing its intention in clear terms.
121. Under the unamended Section 6 when a male Hindu dies after the commencement of the Act, his interest in the Mitakshara co-parcenary property devolve
by survivorship upon the surviving members of the co-parcenary. Prior to the amended Section surviving members of the co-parcenary included only male
members and sons. By the amended Section 6 a daughter is conferred the status of a co-parcener and she would become a member of the co-parcenary. To
that extent the amended Section is inconsistent with the unamended Section 6. Therefore, the amended Section as it evinces contrary intention effecting the
portion of unamended Section 6 and also confers on such daughters, the right to property by birth, the rights which accrue to the male members of the co-
parcener on the succession being open prior to the amended Section is affected, their share get reduced.
122. The Parliament wanted to give the benefit of the law to the daughters from 1956 itself. By giving such a right to the daughters even in pending matters all
that happens is the shares of the sons would get reduced. But, the vested right which they acquired by birth is not extinguished. It is a curative legislation. This
right ought to have been given to the daughters in the year 1958 itself when daughters were given the constitutional right of equality. The legislature has the
power to take away such vested right by enacting a law and making its intention clear expressly or by necessary implication. By enacting the amended Section
the legislative intent's clear. Not only the law is made retrospective but also affects such vested right of a male co-parcener. Therefore, the contention that the
vested right of a co-parcener which had accrued by the opening of the succession prior to the amended Act cannot be taken away, is without any substance.
WIND OF CHANGE
123. The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are
concomitants for national development, social and family stability and growth, culturally, socially and economically. How it is achieved. The civilization, culture,

custom, usage, religion and law are founded upon the community life for man's well being. The man will obey the command of the community by consent. The
law formulates the principles to maintain the order in the society to avoid friction. Democracy brings about bloodless revolution in the social order through rule
of law. No right in an organised society can be absolute. Enjoyment of one's right must be consistent with the enjoyment of the rights of others. In a free play
of social forces, it is not possible to bring about a voluntary harmony. The State has to step in to set right the imbalance. The directive principles, though not
enforceable, Article 38 obligates the State to restructure social and economic democracy, enjoins to eliminate obstacles and prohibit discrimination in inte state
succession based on sex.
124. The public policy and constitutional philosophy envisaged under Articles 38, 39, 46 and 15(1) and (3) and 14 is to accord social and economic democracy
to women as assured in the preamble of the Constitution They constitute core foundation for economic empowerment and social justice to women for stability of
political democracy. In other words, they frown upon gender discrimination and aim at elimination of obstacles to enjoy social, economic, political and cultural
rights on equal footing. Law is a living organism and its utility depends on its vitality and ability to serve as sustaining pillar of society. Contours of law in an
evolving society must undergo change with march of time. Justice to the individual is one of the highest interests of the common man unless it would redefine
the protection of the Constitution and the common law. If law is to adapt itself to the needs of the changing society, it must be flexible and adaptable. Law is
the manifestation of principles of justice, equity and good conscience. Rules of law should establish a uniform pattern for harmonious existence in a society
where every individual would exercise his rights to his best advantage to achieve excellence, subject to protective discrimination. Law is the foundation on
which the potential of the society stands.
125. After the advent of independence old human values assumed new complex; women need emancipation; new social order need to be set up giving women
equality and place of honour, abolition of discrimination based on equal right to succession was the prime need of the hour and temper of the times. Therefore,
when women are discriminated only on the ground of sex in the matter of inte state succession to the estate of the parent or husband, the Hindu Succession
Act, revolutionised the status of a Hindu female and used Section 14(1) as a tool to undo past injustice to elevate her to equal status with dignity of person on
par with man and removed all fetters of Hindu Women's limited estate which blossomed into full ownership. By legislation fiat the discrimination of inte state
succession meted out to women was done away with. Articles 14, 15 and 16 frowns upon discrimination on any ground and enjoin the State to make special
provisions in favour of women to remedy past injustice and advance their socio economic and political status. Economic necessity is not a sanctuary to abuse
women's person. Section 14, therefore, gives to every Hindu women full ownership of the property, irrespective of the time when the acquisition was made,
namely, whether it was before or after the Act had come into force, provided she was in possession of the property. The Act also gave effect to the equality
clause in the Constitution by giving the women equal rights in the property of a male Hindu dying inte state after the coming into force of the Act. Still
inequality persisted in so far as co-parcenary property is concerned. The discrimination continued between the son and the daughter in the matter of sharing
the co-parcenary property, It took nearly 50 years in free India to remedy the situation. Realising this inequality which is a blot on the democratic polity, which
not only contributed to her discrimination on the ground of gender but also led to oppression and negation of her fundamental right of equality guaranteed by
the Constitution and having regard to the need to render social justice to women, the Parliament has passed the Amendment Act, giving the daughter equal
status with the son and equal rights in the coparcenary property The Amendment Act is curative, remedial in nature, and wants to undo the injustice done to
her in the last 50 years. The amendment not only intends to give equal rights to the daughter, it wants to give such rights from the day the Act came into force,
from which date such a legitimate right was denied to her. This is the will of the people of this country, opinion of the healthy elements of the population, who
believe in the true spirit of the ancient culture of this country, which serves to inspire not only those of conservative spirit but also those desire in a loyal and
disinterested spirit to make radical alterations to the organisation of existing society. This law is in conformity with the sense and needs and the mores of the
community. What ever sacrifice the men have to make while giving effect to the law, has to be made with a smile, as it is the command of the community by
consent, a revolution in the social order, through rule of law. It removes the blot on the Hindu society and the aspersions cast on Hindu men, over centuries. It
is worthwhile to remember the words of Manu.
;= uk;ZLrq iwT;Urs jeUrs r= nsork% A
Yatra Naryasthu Poojyanthe, Ramanthe Thatra Devethaha
The deities smile on the family where the females are honoured (held in respect)
ON FACTS:
126. Coming to the facts of this case, it is not in dispute that it is conceded by the defendants that the schedule properties are co-parcenary properties. The
kartha of the Joint Hindu Family, D.N. Vasanth Kumar died on 31.12.1984 inte state. There was no partition between him and his sons during his lifetime. He
left behind 2 sons and the two daughters including the plaintiff apart from the 1st defendant widow. By virtue of the Amendment Act, the plaintiff the daughter
of a coparcener in a Joint Hindu Family governed by the Mitakshara Law by birth becomes a co-parcenar in her own right in the same manner as the son and
have the same rights in the coparcenary property as she would have had if she had been a son. There were 5 co-parcenars of the Hindu Undivided Family on
the date prior to the date of the death of her father. She acquired the right by birth in the co-parcenary property. Therefore, she would be entitled to equal
share in the coparcenary property, i.e., 1/5th share.
127. On the date of death of her father, the Amendment Act had not come into force. Therefore, the unamended Section 6 of the Act was applicable. A notional
partition is to be effected prior to the date of the death of her father in which event her father, plaintiff, two sons defendants 3 and 4 and her sister defendant
No. 2 would have 1/5th share each. By virtue of the proviso to Section 6 of the unamended Section, the 1/5th share of Vasanth Kumar do not devolve by
survivorship. It devolves by the testamentary or intestate succession. Admittedly, he had not made any Will. He has left behind female heirs. Therefore, in the
1/5th share to be allotted to Vasanth Kumar, the two sons, daughters and wife would be entitled to equal share, i.e., each one of them would be entitled to
1/5th share in the 1/5th share of Vasanth Kumar. As the amended provision has not made any provision for devolution of interest of a Hindu male dying
intestate leaving the female relative, Section 6 of the General Clauses Act is attracted. The share to which the first defendant-wife would be entitled to is
governed by the unamended Section 6. Therefore, she would be entitled to 1/5th share in the 1/5th share of her husband, i.e., she would be entitled to 1/25th
share in the schedule properties. Similarly, the plaintiff, defendants 2 to 4 would be entitled to 6/24th share each.
128. It is submitted. on behalf of the defendants that they have sold the schedule property in favour of Hotel Sriveeba (P) Ltd., a Company represented by the
Director Sri S. Narayan on 26.11.2004. In view of the proviso to Sub-section (1) of Section 6 of the substituted Section, the said sale is not in any way affected
by the amended provision and the sale deed would not get invalidated. If the aforesaid alienation had taken place prior to the institution of the suit, the
defendants were justified in saying so. However, admittedly in this case the suit for partition is filed on 12.9.2001. The trial Court partially decreed the suit of
the plaintiff on 17.1.2004. In the suit on 10-10-2002 defendants 1 to 4 filed a memo (not to alienate) the suit property pending disposal of the suit. The
present appeal is filed before this Court on 10.3.2004. Though the aforesaid sale deed is executed prior to 24.12.2004, the cut off date stipulated in Section 8
to save dispositions and alienations from Section 6(1) of the substituted Section, as the said alienation is made during the pendency of the proceedings, it is hit
by the doctrine of lis pendence. Therefore, notwithstanding the aforesaid disposition/alienation before the cut off date, the said alienation would not take away
the right of the plaintiff conferred on her under the substituted Section. It binds only the parties to the said instrument. The right of the plaintiff in respect of
the said property is in tact. Therefore, we do not see any substance in the said contention also. The finding of the trial Court that properties C and D schedule
are not available for partition is not disputed and challenged in this appeal.
129. In that view of the matter, we pass the following order:
(i) The appeal is allowed.
(ii) The judgment and decree of the trial Court is set aside.
(iii) It is declared that the plaintiff is entitled to 6/25th share in the plaint A, B and E schedule properties.
(iv) Plaintiff is also entitled to mesne profits. It is to be worked, upon by her in the final decree proceedings.
(v) Parties to bear their own costs.
© Manupatra Information Solutions Pvt. Ltd.

MANU/MH/1278/2014
Equivalent Citation: AIR2014Bom151, 2014(5)ALLMR846, 2014(5)CTC353, 2014(5)MhLj434,

2014(4)RCR(Civil)620
IN THE HIGH COURT OF BOMBAY
Second Appeal No. 566 of 2011, CAS/1762/2011 and CAS/498/2014 in SA/566/2011, Second
Appeal No. 846 of 2003 and CAS/1287/2003 in SA/846/2003, Second Appeal No. 1096 of 2012
and CAS/2166/2012 in SA/1096/2012, Second Appeal No. 240 of 2011 and CAS/21/2012 in
SA/240/2011, Second Appeal No. 607 of 2013 and CAS/26/2014 in SA/607/2013, Second
Appeal No. 796 of 2012 and CAS/240/2013 in SA/796/2012, Second Appeal No. 641 of 2013
and CAS/1551/2013 in SA/641/2013, Second Appeal No. 58 of 2014 and CAS/138/2014 in
SA/58/2014 and Second Appeal No. 147 of 2014 and CAS/353/2014 in SA/147/2014 and
Second Appeal Nos. 25 of 2013, 132 of 2009, 466 of 2011 and 220 of 2014
Decided On: 14.08.2014
Appellants: Badrinarayan Shankar Bhandari etc. etc.

Vs.
Respondent: Ompraskash Shankar Bhandari etc. etc.
Hon'ble Judges/Coram:
Mohit S. Shah, C.J., M.S. Sanklecha and M.S. Sonak, JJ
Counsels:
For Appellant/Petitioner/Plaintiff: A.V. Anturkar, Senior Advocate i/b S.B. Deshmukh, Advocate,
G.S. Godbole i/b Drupad S. Patil, Advocate, Vaibhav P. Patankar h/f S.C. Wakankar, Advocate,
P.P. Kulkarni, Advocate, R.S. Apte, Senior Advocate, V.S. Talkute, S.R. Moray, Advocate,
Sandeep S. Salunkhe, Advocate, Abhijit Kulkarni a/w Manoj Badgujar, Advocate, P.J. Pawar,
Advocate, G.N. Salunke a/w N.B. Khaire, Advocate and Mahesh Rawool i/b K.P. Shah, Advocate
For Respondents/Defendant: G.M. Joshi, Advocate, Vithaldas Shankar Bhandari, Party-in-Person

and Drupad S. Patil, Advocate, P.B. Shah i/b Kayval P. Shah, Pramod G. Kathane, Advocate,
G.S. Godbole a/w Prashant More, Advocate, N.J. Patil, Pratap M. Nimbalkar, M.M. Mahajan,
Pankaj Shinde, Advocates, Ravindra Pachundkar h/f Dilip Bodake, Advocate, V.S. Tadke i/b Y.G.
Thorat, Advocate, S.P. Golekar i/b T.D. Deshmukh, Advocate, Neha Valsangkar, Advocate and
Manoj Saverdekar i/b P.G. Kuthane, Advocate
Subject: Family
Subject: Property
Acts/Rules/Orders:
Constitution Of India - Article 136, Constitution Of India - Article 14, Constitution Of India -
Article 15, Constitution Of India - Article 15(2), Constitution Of India - Article 16, Constitution Of
India - Article 246; Hindu Succession (amendment) Act, 2005 - Section 3, Hindu Succession
(amendment) Act, 2005 - Section 6; Hindu Succession Act, 1956 - Section 23, Hindu Succession
Act, 1956 - Section 30, Hindu Succession Act, 1956 - Section 6, Hindu Succession Act, 1956 -
Section 6(1), Hindu Succession Act, 1956 - Section 6(1)(a), Hindu Succession Act, 1956 -
Section 6(1)(b), Hindu Succession Act, 1956 - Section 6(1)(c), Hindu Succession Act, 1956 -
Section 6(3), Hindu Succession Act, 1956 - Section 6(5), Hindu Succession Act, 1956 - Section 8
Citing Reference:
Discussed 10

Mentioned 10
Case Note:
Civil - Correctness of judgement - Section 6 of Hindu Succession Act, 1956 and
Amendment Act, 2005 - Present reference filed for challenging correctness of decision
rendered in Vaishali S. Ganorkar and Others v/s. Satish Keshavrao Ganorkar and
Others case wherein it was held that Section 6 of Act was prospective in operation -
Whether Section 6 of Act substituted was prospective or retrospective in operation -
Held, on perusal of precedents, no room for doubt left that amended Section 6 of Act
came to be applied to case where daughters were born long prior to date of coming
into force of Amendment Act - Further, case of coparcener who died before alleged
date would be governed by pre-amended Section 6(1) of Act - Considering facts,
binding force of decision in Ganduri Koteshwaramma and Others v/s. Chakari and
Others was not weakened - Hence, decision in Vaishali S. Ganorkar and Others v/s.
Satish Keshavrao Ganorkar and Others case was per incuriam decision in Ganduri
Koteshwaramma and Others v/s. Chakari and Others - Therefore, Section 6 of Act as
amended was retroactive in operation - Reference disposed of. [paras 63, 76 and 77]
JUDGMENT
Mohit S. Shah, C.J.
1. This Full Bench has been constituted on the reference made by a learned Single Judge of this
Court (R.G. Ketkar, J.). This reference became necessary as the learned Judge doubted
correctness of the decision rendered by Division Bench of this Court in Vaishali S. Ganorkar &
Others v/s. Satish Keshavrao Ganorkar & Others MANU/MH/0090/2012 : 2012 (5)-Bom. C.R.-
210 The following questions of law have been referred for our opinion:-
(a) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the
Amendment Act, 2005 is prospective or retrospective in operation?
(b) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the
Amendment Act, 2005 applies to daughters born prior to 17.6.1956?
(c) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the
Amendment Act, 2005 applies to daughters born after 17.6.1956 and prior to
9.9.2005?
(d) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the
Amendment Act, 2005 applies only to daughters born after 9.9.2005?
(e) Whether the decision of the Division Bench in the case of Vaishali Ganorkar is per
in curium of Gandori Koteshwaramma and others?
2. The primary issue before the learned Single Judge was whether Section 6 of the Hindu
Succession Act, 1956 (the Principal Act) substituted by Section 3 of the Hindu Succession
(Amendment) Act, 2005 (the Amendment Act) is prospective or retrospective in operation.
3. Before dealing with the questions of law referred to us, it would be apposite to reproduce the
erstwhile Section 6 as appearing in the Principal Act and the amended Section 6 of the Principal
Act as substituted by Section 3 of the Amendment Act for the sake of convenience. The pre-
amended Section 6 of the Principal Act reads as under:-
Section 6:- Devolution of interest in coparcenary property-when a male Hindu dies

after the commencement of this Act, having at the time of his death an interest in a
Mitakshara coparcenary property, his interest in the property shall devolve by
survivorship upon the surviving members of the coparcenary and not in accordance
with this Act;

Provided that, if the deceased had left him surviving a female relative specified in
class I of the Schedule or a male relative specified in that class who claims through
such female relative, the interest of the deceased in the Mitakshara coparcenary
property shall devolve by testamentary or intestate succession, as the case may be,
under this Act and not by survivorship.
Explanation 1-For the purposes of this section, the interest of a Hindu Mitakshara
coparcener shall be deemed to be the share in the property that would have been
allotted to him if a partition of the property had taken place immediately before his
death, irrespective of whether he was entitled to claim partition or not.
Explanation 2-Nothing contained in the proviso to this section shall be construed as

enabling a person who has separated himself from the coparcenary before the death
of the deceased or any of his heirs to claim on intestacy a share in the interest
referred to therein.
The substituted Section 6 of the Principal Act as amended by the Amendment Act which is in
force w.e.f. 9 September 2005 reads as under:-
6. Devolution of interest of coparcenary property.-
(1) On and from the commencement of the Hindu Succession

(Amendment) Act, 2005*, in a Joint Hindu family governed by the
Mitakshara law, the daughter of a coparcener shall,
(a) by birth become a coparcener in her own right in the

same manner as the son;
(b) have the same rights in the coparcenary property as she

would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said

coparcenary property as that of a son, and any reference to
a Hindu Mitakshara coparcener shall be deemed to include a
reference to a daughter of a coparcener:
Provided that nothing contained in this

subsection shall affect or invalidate any
disposition or alienation including any partition or
testamentary disposition of property which had
taken place before the 20th day of December,
2004.
(2) Any property to which a female Hindu becomes entitled by virtue of

sub-section (1) shall be held by her with the incidents of coparcenary
ownership and shall be regarded, notwithstanding anything contained in
this Act or any other law for the time being in force in, as property
capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu

Succession (Amendment) Act, 2005, his interest in the property of a
Joint Hindu family governed by the Mitakshara law, shall devolve by
testamentary or intestate succession, as the case may be, under this Act
and not by survivorship, and the coparcenary property shall be deemed
to have been divided as if a partition had taken place and,--
(a) the daughter is allotted the same share as is allotted to a

son;

(b) the share of the pre-deceased son or a predeceased
daughter, as they would have got had they been alive at the
time of partition, shall be allotted to the surviving child of
such pre-deceased son or of such pre-deceased daughter;
and
(c) the share of the pre-deceased child of a pre-deceased son

or of a pre-deceased daughter, as such child would have got
had he or she been alive at the time of the partition, shall be
allotted to the child of such pre-deceased child of the pre-
deceased son or a pre-deceased daughter, as the case may
be.
Explanation.--For the purposes of this subsection, the interest of a Hindu

Mitakshara coparcener shall be deemed to be the share in the property
that would have been allotted to him if a partition of the property had
taken place immediately before his death, irrespective of whether he was
entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act,

2005*, no court shall recognise any right to proceed against a son,
grandson or great-grandson for the recovery of any debt due from his
father, grandfather or great-grandfather solely on the ground of the
pious obligation under the Hindu law, of such son, grandson or great-
grandson to discharge any such debt:
Provided that in the case of any debt contracted before the

commencement of the Hindu Succession (Amendment) Act,
2005, nothing contained in this subsection shall affect--
(a) the right of any creditor to proceed against

the son, grandson or great-grandson, as the case
may be; or
(b) any alienation made in respect of or in

satisfaction of, any such debt, and any such right
or alienation shall be enforceable under the rule
of pious obligation in the same manner and to
the same extent as it would have been
enforceable as if the Hindu Succession
(Amendment) Act, 2005 had not been enacted.
Explanation.--For the purposes of clause (a), the expression

"son", "grandson" or "great-grandson" shall be deemed to
refer to the son, grandson or great-grandson, as the case
may be, who was born or adopted prior to the
commencement of the Hindu Succession (Amendment) Act,
2005.
(5) Nothing contained in this section shall apply to a

partition, which has been effected before the 20th day of
December, 2004.
Explanation.- For the purposes of this section "partition" means any

partition made by execution of a deed of partition duly registered under
the Registration Act, 1908 (16 of 1908) or partition effected by a decree
of a court.
4. The Division Bench of this Court in Vaishali S. Ganorkar (supra) MANU/MH/0090/2012 : 2012

(5)-Bom. C.R.-210 had held that Section 6 of the Principal Act as substituted by Section 3 of the
Amendment Act (amended Section 6) was prospective in operation and it applied to daughters
born on or after 9 September 2005. As regards daughters born before 9 September 2005, the
Division Bench held that they would get rights in coparcenary property upon death of their
father-coparcener on or after 9 September 2005.
5. The learned Single Judge in his order dated 9 June 2014 while disagreeing with the view of
the Division Bench held that amended Section 6 was retrospective in operation, that is applicable
w.e.f. 17 June 1956 i.e. the date of commencement of the Principal Act and applies to all
daughters of a coparcener who are born either before or after 9 September 2005 or daughters
born before or after 17 June 1956. The learned Single Judge held that a daughter by birth
becomes a coparcener in a Hindu coparcenary in her own right in the same manner as a son,
having the same rights in the coparcenary property as she would have had if she had been a son
and subject to the same liabilities in respect of the said coparcenary property as that of a son in
terms of sub-section (1) of the amended Section 6.
6. In order to properly appreciate the questions referred to us for opinion, it may be necessary
to contextualize the same by briefly referring to the basis of decision of the Division Bench in
Vaishali S. Ganorkar (supra) MANU/MH/0090/2012 : 2012 (5)-Bom. C.R.-210. Reasons why
learned Single Judge in his order dated 9 June, 2014 is in disagreement with the above view
would be referred to later as many of them are also adopted as submissions.
The decision of the Division Bench in Vaishali S. Ganorkar (supra) MANU/MH/0090/2012 : 2012
(5)-Bom. C.R.-210 arose in the following facts:-
(A) The Appellants therein were daughters of Respondent No. 1(father). The father
had taken a loan from the bank and mortgaged the property to the bank in the year
2008. (para 23 of the judgment) On failure to repay the loan, the bank initiated
recovery proceeding under the Securitization Act. The daughters then filed a suit,
claiming to be entitled to 2/3rd of the property as their share in the coparcenary
property. It was daughters' case that the property which had been mortgaged by the
father was a Hindu Undivided Family (HUF) property as it was purchased from the
nucleus of the joint family property. The Single Judge refused to give ad-interim
reliefs to the Appellants. In Appeal, the Division Bench was concerned with the issue
whether the Appellant is entitled to a share in the property as a coparcener in the
HUF property and if so, with effect from what date.
(B) On the above facts, the Division Bench held as follows:-
(i) On analysis of amended Section 6, the Court placed reliance upon the
marginal note to Section 6 viz:-"Devolution of interest in coparcenary
property" to take a view that the right of a daughter only arises upon
devolution i.e. on the death of the ancestral coparcener. The rights of a
daughter got crystallized in respect of coparcenary property only upon
the death of an ancestor-coparcener. In this case, the coparcener-father
of the appellants was alive and therefore the suit filed by the daughters
was pre-mature. This was as the Succession had not opened. The
Division Bench held that on passing of the Amendment Act ipso facto all
daughters do not become coparceners. A daughter born after 9
September 2005 certainly became coparcener by birth but a daughter
born prior to 9 September 2005 became coparcener only upon the death
of her ancestral coparcener. Thus the contention that the Amendment
Act was retrospective and applies also to daughters born prior to 9
September 2005 was negatived.
(ii) Further the Division Bench referred to the grammar of the language
found in Section 6 of the Principal Act as amended by Amendment Act to
come to the conclusion that the section conferred rights in the future and
did not affect past transactions. In particular, reliance was placed on the

following to indicate that it is prospective:
(a) Section 6(1) itself commenced with "On and from the
commencement of the Hindu Succession (Amendment) Act
2005";
(b) The later part of Section 6(1) which provides that the
daughter of a coparcener shall would refer to future.
Section 6(1)(a) using the word 'by birth become';
Section 6(1)(c) states that a daughter 'shall be subject to the same

liabilities of a son; AND
The first proviso to Section 6(1) providing that no alienation or

disposition or partition of any property which has taken place before 20
December 2004 shall be affected by virtue of Section 6(1) of the
Principal Act.
All the above were indicative of Section 6 of the Principal Act as

amended by Amendment Act being prospective.
(iii) Besides, the Division Bench observed that a statute is not

retrospective unless it is expressly stated to be so. In this case, the
words 'On and from' in amended Section 6(1) would itself indicate that it
is prospective in nature otherwise these words 'on and from' would be
rendered otiose.
On the above analysis, the Division Bench concluded that a daughter

born on and after 9 September 2005 would be entitled to coparcenary
right by birth while daughter born prior to 9 September 2005 would be
entitled to coparcenary property only on succession i.e. death of a
coparcener to whose interest the daughter succeeds.
(C) Moreover, the Division Bench also relied upon the decision of the Supreme Court
in G. Shekhar Vs. Geeta MANU/SC/0581/2009 : (2009) 6-SCC-99 and Sheeladevi
Vs. Lal Chand and others MANU/SC/4318/2006 : (2006) 8-SCC-581 wherein it was
held that the Amendment Act of 2005 is prospective and would have no application
where succession opened prior to the Amendment Act of 2005 coming into force.
(D) The Division Bench did not agree with decision of the Karnataka High Court in
Pushpalatha N.V. v/s. V. Padma MANU/KA/0124/2010 : AIR-2010-Karnataka-124
wherein it was held that the Section is retrospective and would apply to all daughters
who are born after 17 June 1956 and no matter whether the succession had opened
or not. This was on the basis of mischief theory of interpretation. The aforesaid view
of the Karnataka High Court was not accepted by the Division Bench as upon reading
of the Amendment Act giving it retrospective effect would be against the provisions
of the Amendment Act.
On the above basis, the Division Bench in Vaishali S. Ganrokar (supra)

MANU/MH/0090/2012 : 2012 (5)-Bom. C.R.-210 held that the Appellant therein are
not entitled to 2/3rd interest in the suit property as Section 6 of the Principal Act was
not retrospective in operation.
7. An Appeal filed against the order of the Division Bench in Vaishali S. Ganorkar (supra)
MANU/MH/0090/2012 : 2012 (5)-Bom. C.R.-210 was dismissed by the Apex Court by the order
dated 27 February 2012 in SLP (C) No. 6118 of 2012-

Dismissed. However, the question of law is kept open.
Thus, the question of law arising in the appeal was left open for consideration. Therefore, there
is no final determination of the Supreme Court as yet on the above issue.
8. A group of matters came up before the learned Single Judge in Second Appeals challenging
the view that amended Section 6 is prospective, which was the view taken by Division Bench of
this Court in Vaishali S. Ganorkar (supra) MANU/MH/0090/2012 : 2012 (5)-Bom. C.R.-210. The
Respondents in the Second Appeal before the learned Single Judge urged dismissal of the
appeals as the issue stands concluded against the Appellants by the aforesaid decision of the
Division Bench. On the other hand, the Appellants before the learned Single Judge submitted
that the decision of the Division Bench in Vaishali S. Ganorkar (supra) MANU/MH/0090/2012 :
2012 (5)-Bom. C.R.-210 was not correct as it was rendered per incuriam not having noticed the
decision of the Apex Court in Ganduri Koteshwaramma & Others v/s. Chakari & Others
MANU/SC/1216/2011 : (2011) 9-SCC-788 as the same was not cited before the Division Bench.
9. After taking a prima view that the decision of the Division Bench in Vaishali S. Ganorkar did
not lay down the correct law, by a 39 page order dated 9 June 2014 the learned single Judge
arrived at the following conclusions:-
(I) Section 6 of the Principal Act was substituted by Section 6 of the Amendment Act.
In view thereof, for all intents and purposes, amended Section 6 is there from
17.06.1956, being the date of commencement of the Principal Act.
(II) The daughter of a coparcener who is born before or after 17.6.1956 has by birth
become a coparcener in her own right in the same manner as a son in terms of
clause (a) and has the same rights in the coparcenary property as she would have
had if she had been a son in terms of clause(b) and is subject to the same liabilities
in respect of the said coparcenary property as that of a son in terms of clause (c) of
sub-section (1) of amended Section 6.
(III) The rights under clauses (a) and (b) and liabilities under clause (c) of sub-
section (1) of amended Section 6 are recognized for the first time on and from
09.09.2005, being the date of commencement of the Amendment Act.
(IV) Even if the daughter of a coparcener has by birth become coparcener in her own
right in the same manner as a son in terms of clause (a) and as also she has the
same rights in the coparcenary property as she would have had if she had been a
son in terms of clause (b), the same shall not affect or invalidate any disposition or
alienation including any partition which is duly registered under the Registration Act,
1908 or effected by decree of a Court or testamentary disposition of property which
had taken place before the 20th day of December 2004.
(V) The decision of the Division Bench in the case of Vaishali Ganorkar is not per
incuriam of Gandori Koteshwaramma and others.
The learned single Judge then referred the questions of law set out in opening para of this
judgment.
RIVAL SUBMISSIONS
10. Mr. A.V. Anturkar, learned Senior Advocate and Mr. Girish Godbole, learned Senior Counsel
and the other learned Counsel for the Appellants in support of their submissions that Section 6
of the Principal Act as amended is retrospective in operation submitted as under:-
(a) The decision of the Division Bench of this Court in Vaishali S. Ganorkar (supra)
MANU/MH/0090/2012 : 2012 (5)-Bom. C.R.-210 holding it to prospective does not
lay down the correct law for the following reasons:

(i) A plain reading of amended Section 6 would show that the daughter
of a coparcener becomes a coparcener in her own right in the same
manner as a son and has the same right in the coparcenary property as
she would have as if she had been a son. This was in light of the
Statement of Objects and Reasons which specifically provided that the
law as existing, excluding the daughter from participating in the
coparcenary property, amounts to discrimination on the ground of
gender, negating the fundamental rights guaranteed by the Constitution.
It was proposed to remove this discrimination and give equal rights to
the daughter as made available to a son, that the Amendment Act was
being introduced.
(ii) Further, the phraseology 'on and from commencement of the Hindu
Succession (Amendment) Act, 2007' was a provision by which the earlier
Section 6 of the Principal Act was amended by the Amendment Act as
and by way of substitution. Therefore, the amended Section 6 is a part of
the Principal Act from the time the Principal Act came in to force i.e. 17
June 1956. Thus the daughter whether born before or after 1956 would
become a coparcener in her own right. Only, this right was recognized on
and with effect from 9 September 2005.
(iii) Proviso to Section 6(1) of the Principal Act as amended provides that
nothing in Section 6(1) of the Act will affect or invalidate any disposition
or alienation including any partition or testamentary disposition of the
property which has taken place before 20 December 2004. This proviso
was held to be controlled by the Explanation to Section 6(5) of the
Principal Act for the purpose of defining partitions to be restricted to only
those partitions which are done by execution of a registered deed of
partition or by a decree of Court. All partitions made prior to 20
December 2004 would not be affected by the Amendment Act provided
that the partition has been made only by a registered deed or a decree
of a Court. Thus only those partitions which are done prior to 20
December 2004 in the above manner were saved and not others. This
would negative the contention that Section 6 of the Principal Act as
amended is not retrospective in nature.
(iv) The Division Bench of Karnataka High Court in Pushpalatha case

(supra) MANU/KA/0124/2010 : AIR 2010 Kar 124 held that as the
Amending Act substituted the original Section 6 in the erstwhile Act, it
had conferred rights upon the daughters w.e.f. 1956 i.e. the date of the
enactment of the Principal Act. It was held that though this right of a
daughter was declared w.e.f. the commencement of the Amendment Act,
2005, it would enure to daughters' benefit from the commencement of
the Principal Act. This law being a declaratory law has to be retrospective
in operation as the amendment was carried out by way of substitution.
In other words, the legislative intent was to supply the omission in the
original Act. The effect is that the old Section 6 has been superseded and
substituted by the Section 3 of the Amendment Act. The substituted
provisions for all intent and purposes is a provision which has to be read
as always being there instead of the erstwhile Section 6 of the Principal
Act.
(v) The words 'on and from' is only restricted to conferring the status of
a coparcener to the extent a daughter becoming a coparcener by birth.
The Court held that the confirmation of the status is different from
conferment of rights in the coparcenary property. The conferment of
right from the day of birth in Section 6(1)(a) would necessarily mean the
status was conferred prior thereto.
(vi) The proviso to Section 6(1) of the Principal Act states that it would

not affect any disposition or alienation including any partition or
testamentary disposition of the property which has taken place before
20th December 2004. The necessity of such a provision makes it clear
that the intent is to give the Section a retrospective effect. However,
where third party rights have been created after partition by way of
registered deed or a decree of a Court, then such rights would not be
affected by the Amending Act.
(b) Keeping in view the Mischief Rule and/or purposive Rule of Interpretation on
consideration of the law as existing earlier and purpose of the amendment to do
away with gender discrimination and bringing it in line with the Constitution, it has to
be given retrospective effect;
(c) The retrospectivity of amended Section 6 of the Principal Act is also evident from
the fact that the amended Section 6 has been introduced by substitution to the
erstwhile Section 6 of the Act; and
(d) The entire controversy is now settled in favour of retrospectivity as held by the
Apex Court in Ganduri's (supra) MANU/SC/1216/2011 : (2011) 9-SCC-788.
11. As against the above, learned counsel of the Respondents submitted that Section 6 of
Principal Act as amended is only prospective in operation and submitted as under:-
(a) The issue is no longer res-integra as the Division Bench of this Court in Vaishali
S. Ganorkar (supra) MANU/MH/0090/2012 : 2012 (5)-Bom. C.R.-210 has decided
the issue conclusively and even the appeal therefrom is dismissed by the Apex
Court;
(b) The statute is to be construed on its plain meaning and cannot be given
retrospective operation on the basis of the intent of Parliament;
(c) It is well settled that all Acts of Parliament are prospective in operation unless
the statute itself provides for it to be retrospective. A retrospective effect should not
normally be given to a statute as this would unsettle vested rights;
(d) The decision of the Supreme Court in Ganduri (supra) MANU/SC/1216/2011 :

(2011) 9-SCC-788 case has no application to the present facts as it was concerned
with the case of reopening a preliminary decree of partition;
(e) The issue is settled in favour of prospective application of amended Section 6 of

the Principal Act by decisions of the Supreme Court in G. Sekhar (supra)
MANU/SC/0581/2009 : (2009) 6-SCC-99 and Sheela Devi (supra)
MANU/SC/4318/2006 : (2006) 8-SCC-581 wherein it held the Amendment Act to be
prospective in operation. These decisions were not brought to the notice of Supreme
Court in Ganduri (supra) MANU/SC/1216/2011 : (2011) 9-SCC-788 case.
DISCUSSION
12. We would dwell into the history and development of Hindu Law as well as look at the Law
Commission Report, Report of the Standing Committee of Parliament and the Statement of
Objects and Reasons of the Bill introduced in Parliament with the purpose of finding out the true
intent of the Parliament in amending Section 6 of the Principal Act by the Amendment Act, 2005.
13. As far as back in 1584 in Heydonas' case (1584) 76 ER 637 it was said that for sure and true
interpretation of statute in general, four things are to be considered:
(a) what was the common law before making the Act,

(b) what was mischief and defect for which common law did not provide,
(c) what remedy Parliament has resolved and appointed to cure the disease; and
(d) what is the reason of the remedy.
This Rule of interpretation/construction is now popularly known as the Mischief Rule or Rule of
Purposive Construction. This Rule was approved by the Supreme Court in Bengal Immunity Co.
Ltd. v/s. State of Bihar MANU/SC/0083/1955 : AIR-1955-SC-661 and after setting out the above
Rule, stated that it is the office of the Judge to always make such construction as would advance
the remedy and suppress the mischief.
Old Hindu Law
14. Before the enactment of the Principal Act, Hindus were covered by shastric and customary
law which varied from region to region. Principally, there were two schools of Hindu Law in India
i.e. Dayabhaga which was prevalent in eastern part of India i.e. Bengal and the adjoining areas
and Mitakshara which was prevalent in the rest of India. Under the Mitakshara School of Hindu
Law, woman in a joint Hindu family had merely a right of maintenance/sustenance but had no
right of inheritance to property. The basis of Hindu joint family was a common male ancestor
and the properties of the family were held as a coparcenary property with male member of the
family having a right to the property by virtue of birth and their interest in the coparcenary
property would keep varying depending upon the death or a birth of a male in the joint Hindu
Family. The property of a male coparcener on his death used to pass by survivorship in the
Mitakshara School of Hindu Law. No female is a member of the coparcenary though, she is a
member of the joint Hindu family. The coparcenary would normally consist up to four degrees
i.e. the common ancestor (coparcener), his son, grandson and great grand son.
15. Under the Dayabhaga School of Hindu Law, the daughters also got equal share along with
their brothers. Under the Dayabhaga School property is transmitted by Succession and not by
Survivorship. In this School, a female could be a coparcener. So far as the Dayabhaga School
was concerned, there was no concept of a coparcenary property and every member of a Hindu
family would hold property in his/her own right and was entitled to dispose of the property as
he/she deems fit either by gift or Will. There was no concept of passing of property by
survivorship nor did a Hindu male in Dayabhaga School acquire rights to property merely by
virtue of his birth. Consequently, women had a right equal to the rights to that of men belonging
to the family in the Dayabhaga School of Hindu Law.
16. The earliest legislation with regard to right of female inheritance was made in 1929 called
the Hindu Law of Inheritance Act, 1929. This Act conferred inheritance right to three female
heirs-son's-daughter, daughter's-daughter and sister. Thus bringing about restrictions on the
exclusive Rule of Survivorship. The next legislation was the Hindu Women's Right to Property Act
1937. This Act enabled the widow to succeed along with the son of the deceased in equal share
to the property of her deceased husband. However, the widow was entitled only to limited estate
in the property i.e. life estate and could not dispose of the property during her life time.
Principal Act
17. In 1950, while framing the Constitution, Articles 14, 15(2) & (3) and 16 of the Constitution
of India, sought inter alia to restrain practice of discrimination against women and made equal
treatment of women a part of the fundamental rights guaranteed under the Constitution. In line
with the above Constitutional objective, the Parliament enacted the Hindu Succession Act, 1956
i.e. the Principal Act. This Act applies to all Hindus including Buddhists, Jains and Sikhs. It lays
down a uniform and comprehensive system of inheritance and applies to all Hindus, whether
governed by Mitakshara or Dayabhaga School of Hindu Law. However, Section 6 of the Principal
Act as originally enacted retained substantially the Rule of passing of property in a coparcenary
by survivorship, although it did give rights of testamentary disposition to Hindu males in respect
of his properties including his coparcenary share. The erstwhile Section 6 of the Principal Act
(pre-amended Section 6) inter alia provided that the interest of a coparcener in the coparcenary

property if not disposed of by Will under Section 30 of the Principal Act, would devolve in terms
of pre-amended Section 6. The main part of pre-amended Section 6 provided that the right of
male Hindu at the time of his death in the coparcenary property will devolve by survivorship.
However, the proviso provided that if the deceased coparcener has any female relatives specified
in Class I of the Schedule to the Act, then the property will devolve in terms of pre-amended
Section 6. The Explanation 1 provides that there would be notional partition immediately before
his death so as to allocate the share in the coparcenary to the deceased coparcener.
18. It is interesting to note that the Hindu Code Bill wanted to do away with the Mitakshara
coparcenary completely. However, the same was opposed to and the erstwhile Section 6 was
enacted in the Principal Act. Consequently, if a partition took place in the coparcenary property,
then each male coparcener would get his share and the mother and wife/widow would not
become a coparcener but would get a share in the coparcenary property. But a daughter would
get no share in the coparcenary property. The daughter would only get a share as one of the
heirs on the death of coparcener, out of the share of the deceased in the coparcenary property
on notional partition, in view of proviso to pre-amended Section 8 of the Principal Act. In terms
of Section 30 of the Principal Act, a Hindu male can dispose of his entire property including his
interest in coparcenary property by testamentary disposition/Will and also in the process deprive
his female heirs of any share.
Making of Amendment Act, 2005
19. Keeping the aforesaid position of Hindu Law, in its 174th Report (May 2000), the Law
Commission of India was of the view that the gender reforms were called for to ensure equality.
The Commission noted the fact that in various States such as Kerala, Andhra Pradesh, Tamil
Nadu, Maharashtra and Karnataka, attempts had already been made to bring about the gender
equality. But all these States, except Kerala, while conferring coparcenary rights on daughters
also denied such rights to daughters married prior to State Acts coming into force.
20. The Law Commission recommended that the daughter should be made coparcener by birth
and that she should be entitled to get a share on partition and/or on the death of the male
coparcener. The Commission also recommended that a daughter who is married after the
commencement of the Amendment Act, should be entitled to a share in the ancestral property as
she has already become a coparcener prior to her marriage. One more recommendation of the
Law Commission was to do away with the erstwhile Section 23 of the Principal Act which
provided that a woman would have a right to stay in the family house as a member of the joint
Hindu Family but unlike a male, she would have no right to demand a partition of the family
house. The Commission recommended that she should have rights equal to the male in respect
of a family house.
21. The Law commission also observed that the Law of Succession falls under Entry V of the List
III(concurrent list) in VII Schedule of the Constitution. In view of Article 246 of the Constitution
of India the laws made by the above mentioned five States, would stand repealed to the extent
they are repugnant to the Principal Act on amendment.
22. On 20 December 2004, the Hindu Succession Amendment Bill 2004 was introduced in the
Rajyasabha, inter alia, seeking to amend the erstwhile Section 6 and doing away/omitting the
erstwhile Section 23 of the Principal Act.
Statement of Objects and Reasons for amending the 'Principal Act' read as follows:-
STATEMENT OF OBJECTS AND REASONS
The Hindu Succession Act, 1956 has amended and codified the law
relating to intestate succession Hindus and gave rights which were till
then unknown in relation to women's property. However, it does not
interfere with the special rights of those who are members of Hindu
Mitakshara coparcenary except to provide rules for devolution of the
interest of a deceased male in certain cases. The Act-lays down a

uniform and comprehensive system of inheritance and applies, inter alia,
to persons governed by the Mitakshara and Dayabhaga schools and also
to those governed previously by the Murumakkattayam, Aliyasantana
and Nambudir laws. The Act applies to every person who is a Hindu by
religion in any of its forms or developments including a Virashaiva, a
Lingayat or a follower of the Brahmo, Parathana or Arya Samaj; or to
any person who is Buddhist, Jain or Sikh by religion; or to any other
person who is not a Muslim, Christian, Parsi or Jew by religion. In the
case of a testamentary disposition, this Act does not apply and the
interest of the deceased is governed by the Indian Succession Act, 1925.
2. Section 6 of the Act deals with devolution of interest of a male Hindu

in coparcenary property and recognizes the rule of devolution by
survivorship among the members of the coparcenary. The retention of
the Mitakshara coparcenary property without including the females in it
means that the females cannot inherit in ancestral property as their male
counterparts to. The law by excluding the daughter from participating in
the coparcenary ownership not only contributes to her discrimination on
the ground of gender but also has led to oppression and negation of her
fundamental right of equality guaranteed by the Constitution. Having
regard to the need of render social justice to women, the States of
Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made
necessary changes in the law giving equal right to daughters in Hindu
Mitakshara coparcenary property. The Kerala Legislature has enacted the
Kerala Joint Hindu Family System (Abolition) Act, 1975.
3. It is proposed to remove the discrimination as contained in section 6

of the Hindu Succession Act, 1956 by giving equal rights to daughters in
the Hindu Mitakshara coparcenary property as the sons have. Section 23
of the Act disentitles a female heir to ask for partition in respect of a
dwelling house wholly occupied by a joint family until the male heirs
choose to divide their respective shares therein. It is also proposed to
omit the said section so as to remove the disability on female heirs
contained in that section.
4. The above proposals are based on the recommendations of the Law

Commission of India as contained in its 174th Report on 'Property Rights
of Women: Proposed Reform under the Hindu Law.
5. The Bill seeks to achieve the above objects.
(Emphasis supplied)
23. The Bill inter alia provided in proviso to proposed Section 6(1) that the Amendment Act
would not apply to a daughter married before the commencement of the Amendment Act and
also that the Amendment Act will have no application to a partition in case the partition had
been affected before the commencement of the Amendment Act. The aforesaid Bill was
thereafter referred to the Standing committee of Parliament. The Standing Committee after
recording the historical growth of Hindu Law and Gender inequality with regard to the property
right practiced against a female Hindu suggested that proviso 1 to proposed Section 6(1) of the
bill which sought to exclude the daughter married before the commencement of the Amendment
Act from the benefit of the Act should be done away with.
24. The Standing Committee also suggested that the partition of the Hindu family property
should be properly defined in the Amendment Act. It was suggested that partition for all
purposes should be either by registered documents or by decree of Court. However, where oral
partition is pleaded, the same should be backed by evidence in support. Further omission of
Section 23 as suggested by the Law Commission, will enable the Hindu Women to seek partition
of a family house occupied by the family members just as male member could seek partition.

25. Thereafter on 9 September, 2005, the Amendment Act 2005 came to be passed as Act 39 of
2005. Section 3 of the Amending Act substituted erstwhile Section 6 of the Principal Act. The
Amendment Act 2005 did away with exclusion of married daughter from getting the benefit of
the amendment and also added a proviso to Section 6(1) of the Principal Act saving partitions
done prior to 20 December 2004 (the date of introduction of the Bill in Rajya Sabha). The
Explanation to Section 6(5) of the Principal Act provided that for the purposes of the Section 6 of
the Act partition only means partition by registered document or decree of Court.
QUESTIONS (a) AND (d)
26. Keeping the above historical development of law in mind, we shall now consider the
questions referred to us by the learned Single Judge. Questions A & D will have to be taken up
together.
Question (a)-Whether Section 6 of the Hindu Succession Act 1956 as amended by

the Amendment Act is prospective or retrospective in operation.
Question (d)-Whether Section 6 of the Hindu Succession Act, 1956 as amended by

the Amendment Act, 2005 applies only to daughters born after 9.9.2005?
27. We shall refer to the parties by the same nomenclature as acquired by them before the
learned Single Judge i.e. the Appellants [challenging the view of the Division Bench in Vaishali
Ganorkar (supra) MANU/MH/0090/2012 : 2012 (5)-Bom. C.R.-210 and Respondents (supporting
the view of the Division Bench in Vaishali S. Ganorkar (supra)) MANU/MH/0090/2012 : 2012 (5)-
Bom. C.R.-210.
28. It is the case of the Appellants before us that the Amending Act which substituted Section 6
of the Principal act is retrospective in operation and applies to all daughters born before 9
September 2005 and also the heirs of such daughter who died before 9 September 2005 are
permitted under the Act to claim their right in the coparcenary property through the deceased
daughter.
As against the above, the stand of the Respondents is that Section 6 has to be read
prospectively and it applies only to the daughters born on or after the effective date provided in
the Act namely 9 September 2005. According to them, the entire issue stands covered by the
order of the Division Bench of this Court in Vaishali Gaonkar (supra) MANU/MH/0090/2012 :
2012 (5)-Bom. C.R.-210.
29. So far as the decision of our Division Bench in Vaishali S. Ganorkar (supra)
MANU/MH/0090/2012 : 2012 (5)-Bom. C.R.-210 is concerned, we find that it was decided in the
peculiar facts of the case. The facts were indeed very gross. As already set out in para 6(A)
hereinabove, the father having taken a loan from the Bank and mortgaged the suit flat as a
security for the loan in 2008, failed to repay the loan. When the Bank initiated recovery
proceedings under the Securitisation Act, to stall such recovery the daughters of the borrower
filed the suit claiming to be entitled to 2/3rd of the suit property as their share in the
coparcenary property on the basis of Section 6 of the Hindu Succession Act, as amended by
2005 Amendment Act. The learned Single Judge refused to grant ad-interim relief to the
daughters. In appeal also the Division Bench was required to decide whether the ad-interim
relief should be granted against recovery proceedings initiated by the bank. The appeal was
dismissed by the Division Bench and the Supreme Court also dismissed the Special Leave
Petition leaving the question of law open. The bank could have argued in the alternative that
even if the suit flat was a coparcenary property, the father as 'Karta' of HUF had made alienation
of the suit flat by way of mortgage for a legal necessity. Therefore, alienation by way of
mortgage was binding on all members of the coparcenary.
30. Apart from the above factual aspects, it must be acknowledged that when the questions of
law were argued in Vaishali Ganorkar case MANU/MH/0090/2012 : 2012 (5)-Bom. C.R.-210, the
legislative history as well as Statement of Objects and Reasons for the Amendment Act were not
brought to the notice of the Division Bench. Even the binding judgment of the Supreme Court in

Ganduri (supra) MANU/SC/1216/2011 : (2011) 9-SCC-788 was not brought to the notice of the
Division Bench. That judgment was directly on the scope and ambit of amended Section 6 of the
Hindu Succession Act. On the contrary the Division Bench was persuaded to follow the principle
laid down by the Supreme court in G. Sekhar (supra) MANU/SC/0581/2009 : (2009) 6-SCC-99,
in which dealing with the provision of Section 23 of the Hindu Succession Act, it was held that if
the date of opening of the succession to the property of a coparcener took place before the
Amendment Act 2005, then Section 23 of the pre-Amended Act would apply. In the above
context, the Division Bench noticed that the father coparcener (respondent No. 1 in the appeal)
was still alive on 9 September 2005, and the occasion to apply Amended Section 6 would arise
only on the death of the coparcener. The Division Bench gave importance to the marginal note
and the grammar in the Amended Section 6. We have given our utmost anxious consideration,
particularly since one of us (Chief Justice) was a party to the decision in Vaishali S. Ganorkar's
case (supra) MANU/MH/0090/2012 : 2012 (5)-Bom. C.R.-210.
31. Having regard to various considerations, which we shall advert to in detail when we examine
the arguments advanced on behalf of the parties, as well as reasoning of the learned single
Judge, we are compelled to reach the conclusion that the principle enunciated in Vaishali S.
Ganorkar's case (supra) MANU/MH/0090/2012 : 2012 (5)-Bom. C.R.-210 was erroneous and it
must be corrected.
As observed by Justice P.N. Bhagwati in Umed Vs. Raj Singh MANU/SC/0278/1974 : (1975) 1-
SCC-76.
Since I was a party to the decision in Mohd. Yunus Saleem Vs. Shivkumar Shastri
(supra), which is now being overturned by us, I think I must explain why we take a
different view from the one taken in that decision. The point decided in that case has
been elaborately discussed before us and we find on a fuller argument that the view
taken by the Court in that case was erroneous and needs to be corrected. To
perpetuate an error is no heroism. To rectify it is the compulsion of judicial
conscience. In this we derive comfort and strength from the wise and inspiring words
of Justice Bronson in Pierce Vs. Delameter:
A Judge ought to be-wise enough to know that he is fallible, and

therefore ever ready to learn; great and honest enough to discard all
mere pride of opinion, and follow truth wherever it may lead; and
courageous enough to acknowledge his errors.
32. We agree with the submission of the Respondents that normally a statute should be
construed on its plain meaning. However, when the plain reading of the provision is not very
clear then, in that case, one has to apply an appropriate tool of interpretation to unearth the
intent, object and purpose of the enactment. In such cases, particularly, in cases of socio-
economic legislations like the one we are concerned with, we must apply the Mischief or
Purposive Rule of interpretation to find out the true and correct meaning of the statute. If we
look at the history of legislation with regard to women in India and also the law prevailing prior
to the legislation when under the Shastric/Customary Law, though the Hindu woman was part of
the joint Hindu family, she had no right in the joint property. The property in such case would
pass to the coparcener (who could only be a male) by survivorship and any birth or death of a
male would reduce or increase the share of the surviving coparceners in the coparcenary
property. The rights of a coparcener were transmitted only by survivorship.
33. The Hindu Succession Act, 1956 made a conscious departure from the Shastric/Customary
Law, but only in two respects:
(i) Section 30 gave a right to Hindu coparcener to make testamentary disposition of

his property including his share in the coparcenary property.
(ii) Section 6 of the Principal Act as enacted in 1956 provided for property passing in
the absence of a female heir in Class-I by survivorship upon the death of the
coparcener. However, if the coparcener had any female relative such as widow,

daughter or a grand daughter, specified in class-I of the Schedule then the interest
of such deceased coparcener would not pass by way of survivorship but would pass
by succession as provided under the Principal Act.
34. However, the Principal Act did not provide any rights to the daughters in respect of the
partition of the property or any rights to demand partition of the property or even claim a share
in the coparcenary property. The only right of the daughter would be to get a share in the
father's share in the coparcenary property and the same would arise only on the death of her
ancestor-coparcener. This led to gender discrimination and daughters were left out from
enjoying the coparcenary property being violative of Articles 14 and 15 of the Constitution of
India which provide for equal rights to all citizens and a mandate not to be discriminated on
account of religion, caste, sex or birth. Realizing the dichotomy and gender discrimination being
sanctioned by the law, Law Commission of India undertook the study of the provisions of Hindu
Law with regard to the laws of inheritance and particularly, with regard to rights of daughters.
On detailed study, the Law Commission submitted 174th Report in 2000 and recommended that
the daughter of a coparcener should be given equal right as that of a son by virtue of her birth in
the joint Hindu family. On the basis of the Report of the Law Commission, the Government
introduced a Bill in Parliament. However, the Bill also provided in proposed Section 6(5) that the
amended Section shall have prospective effect i.e. the amendment shall not apply to a partition
effected before the commencement of the Amendment Act. It also provided that it shall not
apply to a daughter married before the commencement of the Amendment Act. However, the
Act when passed did not have any provision curtailing the rights of a daughter married before
coming into force of Amendment Act. The observations in the report of Standing Committee
leave no room for doubt that Parliament was against "a whole generation of woman,
contemporary to passage of this important enactment will lose out all their property rights". That
would be the consequence of holding that Amendment Act of 2005 confers coparcenary rights
only on daughters born after the amended Act coming into force. So also the view of the Division
Bench that a daughter born prior to amendment will get rights in her father's coparcenary
property only on the death of the father would not only postpone conferment of valuable
property rights on crores of daughters who may also lose everything upon the father and other
coparceners disposing of the coparcenary property during lifetime of the father. The Legislature,
therefore, did not and could not have intended to confer equal rights in the coparcenary property
only upon daughters to be born after coming into force of the Amended Act, 2005.
35. Amended Section 6(1) requires to be analyzed. For the sake of convenience it is quoted
again:
6(1). On and from the commencement of the Hindu Succession (Amendment) Act,
2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a
coparcener shall,-
(a) by birth become a coparcener in her own right in the same manner
as the son;
(b) have the same rights in the coparcenary property as she would have
had if she had been a son,
(c) be subject to the same liabilities in respect of the said coparcenary

property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a

reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any
disposition or alienation including any partition or testamentary disposition of
property which had taken place before the 20th day of December, 2004.
It needs to be noted that clauses (b) and (c) of sub-section (1) of Section 6 and what follows
clause (c) are not circumscribed by clause (a). Therefore, sub-section (1) of Section 6 has to be

read as under:- (For convenience, the words "the Hindu Succession (Amendment) Act, 2005"
have been referred to as "the Amendment Act")
1(a) On and from the commencement of the Amendment Act, in a Joint Hindu
family governed by Mitakshara law, the daughter of coparcener shall by birth
become a coparcener in her own right as the son;
1(b) On and from the commencement of the Amendment Act, in a Joint Hindu
Family governed by Mitakshara law, the daughter of coparcener shall have the
same rights in the coparcenary property as she would have if she would have
been a son;
1(c) On and from the commencement of the Amendment Act, in a Joint Hindu
family governed by Mitakshara law, the daughter of coparcener shall be subject to
the same liabilities in respect of the said coparcenary property as that of a son;
On and from the commencement of the Amendment Act, in a Joint Hindu

family governed by Mitakshara law, any reference to Hindu Mitakshara
coparcener shall be deemed to include a reference to a daughter of a
coparcener;
(emphasis supplied)
36. However, learned counsel for respondents would like us to read Amended Section 6(1) as
under-
in a Joint Hindu family governed by Mitakshara law, the daughter of a coparcener,

who is born on and from the commencement of the Hindu Succession
(Amendment) Act, 2005 shall become a coparcener in her own right in the same
manner as the son and shall have the same rights in the coparcenary property as
she would have had as a son and shall be subject to the same liabilities in
respect of the coparcenary property as that of a son and any reference to the Hindu
Mitakshara coparcener shall be deemed to include a reference to a daughter of a
coparcener.
(emphasis supplied)
37. Since sub clauses (b), (c) and subsequent part of sub-section (1) are not conditioned or
circumscribed by clause (a), a daughter born before the date of commencement of the
Amendment Act shall also have the same rights in her father's coparcenary property, (but of
course with effect from the date of commencement of the Amendment Act), as she would have if
she had been a son. Similarly, her liabilities in respect of her father's coparcenary property shall
be as that of a son, but only with effect from the date of commencement of the Amendment Act.
The view that amended Section 6 would only apply to daughters born after the commencement
of the Amendment Act would, therefore, clearly militate against the express language of clauses
(b) & (c) and subsequent part of Amended Section 6(1). Unfortunately clause (b) conferring
rights in coparcenary property on daughters was not referred to in Vaishali Ganorkar's case
(supra) MANU/MH/0090/2012 : 2012 (5)-Bom. C.R.-210.
38. (i) A prospective statute operates forwards from the date of its enactment conferring new
rights on parties without reference to any anterior event, status or characteristic;
(ii) Retrospective statute, on the other hand, operates backwards, attaches new consequences,
though for the future, but to an event that took place before the statute was enacted. It takes
away vested rights. Substantive benefits which were already obtained by a party are sought to
be taken away because of legislation being given effect to from a date prior to its enactment.
The rules of interpretation of statute raise a presumption against such retrospective effect to a
legislation. In other words, if the Legislature has not expressly or by necessary implication given
effect to a statute from a date prior to its enactment, the Court will not allow retrospective effect

being given to a legislation so as to take away the vested rights. Statutes enacted for regulating
succession are ordinarily not applicable to successions which had already opened, as otherwise
the effect will be to divest the estate from persons in whom it had vested prior to coming into
force of the new statutes. (Muhammed Abdus Samad Vs. Qurban Hussain) ILR. 26 All 119 (129)
P.C.
(iii) There is the intermediate category called "Retroactive Statute" which does not operate
backwards and does not take away vested rights. Though it operates forwards, it is brought into
operation by a characteristic or status that arose before it was enacted. For example, a provision
of an Act brought into force on 1 January 2014, the Act applies to a person who was employed
on 1 January 2014 has two elements:
(a) that the person concerned took employment on 1 January 2014-an event;
(b) that the person referred to was an employee on that day-a characteristic or
status which he had acquired before 1 January 2014. Insofar as the Act applies to a
person who took employment on 1 January 2014, the Act is prospective. Insofar as
the Act applies to a person who had taken employment before 1 January 2014, the
Act is retroactive.
39. The first celebrated case in the intermediate category is R Vs. Inhabitants of St. Mary,
Whitechapel 1848 (2)-QB-120, wherein the Court was called upon to construe Section 2 of the
Poor Removal Act, 1846, which provided that "no woman residing in any parish with her
husband at the time of his death shall be removed from such parish, for twelve calendar months
next after his death, if she so long continues a widow". In that case it was sought to remove a
widow within twelve months from the date of the death of her husband who had died prior to the
Act came into force; and it was argued that to apply the Act to such a case was to construe it
retrospectively. In rejecting the contention, Lord Denman, C.J. made the following oft-quoted
observations:
It was said that the operation of the statute was confined to persons who had
become widows after the Act was passed, and that the presumption against a
retrospective statute being intended supported this construction: but we have before
shown that the statute is in its direct operation prospective, as it relates to future
removals only, and that i t i s n o t p r o p e r l y ca l l e d a r e t r o sp e ct i v e st a t u t e
b e ca u se a p a r t o f t h e r e q u i si t e s f o r i t s a ct i o n i s d r a w n f r o m t i m e a n t e ce d e n t
t o i t s p a ssi n g .
(Emphasis supplied)
While the Indian cases in this category are catalogued in the "Principles of Statutory
Interpretation" by Justice G.P. Singh (13th Edition 2012, Chapter 6, Pages 561-567), it is
necessary to refer to the leading decision of the Constitution Bench of the Supreme Court in
State of Jammu & Kashmir Vs. Triloki Nath Khosa MANU/SC/0401/1973 : (1974) 1-SCC-19
wherein the Court was called upon to examine the challenge to the service rules which after
amalgamating different cadres of engineers into one class, prescribed Bachelor's Degree in
Engineering as a qualification for promotion, though such qualification was not prescribed for
promotion from the cadre of Assistant Engineers before amalgamation of cadres.
It was contended that requiring the Assistant Engineers already in service to possess such
qualification for promotion amounted to making a retrospective rule. Turning down the
challenge, the Supreme Court observed thus:
16. ... ... It is wrong to characterise the operation of a service rule as retrospective
for the reason that it applies to existing employees. A rule which classifies such
employees for promotional purposes, undoubtedly operates in future, in the sense
that it governs the future right of promotion of those who are already in service. The
impugned Rules do not recall a promotion already made or reduce a pay scale
already granted. They provide for a classification by prescribing a qualitative

standard, the measure of that standard being educational attainment. Whether a
classification founded on such a consideration suffers from a discriminatory vice is
another matter which we will presently consider but surely, the Rule cannot first be
assumed to be retrospective and then be struck down for the reason that it violates
the guarantee of equal opportunity by extending its arms over the past. If rules
governing conditions of service cannot ever operate to the prejudice of those who
are already in service, the age of superannuation should have remained immutable
and schemes of compulsory retirement in public interest ought to have founded on
the rock of retroactivity. But such is not the implication of Service Rules nor is it
their true description to say that because they affect existing employees they are
retrospective. ... ...
In the same vein, in Dilip Vs. Mohd. Azizul Haq and another MANU/SC/0181/2000 : (2000) 3-
SCC-607, the Supreme Court observed, inter alia, as under:
9. ... ... We must bear in mind that the presumption against retrospective legislation
does not necessarily apply to an enactment merely because a part of the requisites
for its action is drawn from time antecedent to its passing. The fact that as from a
future date tax is charged on a source of income which has been arranged or
provided for before the date of the imposition of the tax does not mean that a tax is
retrospectively imposed as held in Commrs. Of Customs and Excise Vs. Thorn
Electrical Industries Ltd. (1975) 1-WLR-1661. ......
40. A bare perusal of sub-section (1) of Section 6 would, thus, clearly show that the legislative
intent in enacting clause (a) is prospective i.e. daughter born on or after 9 September 2005 will
become a coparcener by birth, but the legislative intent in enacting clauses (b) & (c) is
retroactive, because rights in the coparcenary property are conferred by clause (b) on the
daughter who was already born before the amendment, and who is alive on the date of
Amendment coming into force. Hence, if a daughter of a coparcener had died before 9
September 2005, since she would not have acquired any rights in the coparcenary property, her
heirs would have no right in the coparcenary property. Since Section 6(1) expressly confers right
on daughter only on and with effect from the date of coming into force of the Amendment Act, it
is not possible to take the view being canvassed by learned counsel for the appellants that heirs
of such a deceased daughter can also claim benefits of the amendment.
41. Learned counsel for the appellants would, however, vehemently submit that because the
Legislature has provided to ignore partitions other than partitions effected by registered deeds or
decrees of the Court, the amendment was intended to be retrospective and would apply even to
a daughter who died before 9 September 2005 and ignoring all partitions (other than those
effected by registered deeds or decrees of Court), the coparcenary properties which existed on
17 June 1956 will continue to be coparcenary properties in which the daughter of the coparcener
or the heirs of the deceased daughter will get rights with effect from 9 September 2005.
Reference is also made to the decision of Division Judge of Karnataka High Court in Pushpalatha
case (supra) MANU/KA/0124/2010 : AIR-2010-Karnataka-124.
42. Two conditions necessary for applicability of Amended Section 6(1) are:
(i) The daughter of the coparcener (daughter claiming benefit of amended Section 6)
should be alive on the date of amendment coming into force;
(ii) The property in question must be available on the date of the commencement of
the Act as coparcenary property.
Proviso to Section 6(1) reads as under:-
Provided that nothing contained in this sub-section shall affect or invalidate any
disposition or alienation including any partition or testamentary disposition of
property which had taken place before the 20th day of December, 2004.

43. It is significant to note that amended Bill was introduced in Rajya Sabha on 20 December
2004 and therefore Parliament saved all dispositions or alienations including partition and
testamentary disposition of property, which had taken place before introduction of the Bill in
Rajya Sabha, but even registered partition deeds and the partitions obtained by decree of Court
after 20 December 2004 are not saved. Otherwise some people might have executed such
registered partition deeds or obtained collusive decrees of the Court between 20 December 2004
and 8 September 2005 to deprive daughters of their rights in the coparcenary property by
removing the property in question from the stock of coparcenary property, thus changing the
nature of the property by such device.
Similarly, sub-section (5) of Section 6 makes it clear that nothing in amended section shall apply
to a partition which was effected before 20 December 2004.
44. Learned counsel for the appellants would, however, submit that explanation to Section 6
clearly provides that partition means any partition made by execution of a deed duly registered
under the Registration Act, 1908 or a partition effected by a decree of a Court and therefore, if
an oral partition had taken place before 20 December 2004, such partition would not be saved
either by the proviso to sub-section (1) or sub-section (5) of Section 6.
It is, therefore, submitted that oral partition effected of coparcenary property even if effected in
the year 1957, would not be saved and therefore Section 6 must be held to be retrospective with
effect from 17 June 1956.
45. Though the argument may prima facie appear to be attractive, it does not recognize the
distinction between an oral partition or partition by unregistered document which is not followed
by partition by metes and bounds on the one hand and oral partition or partition by unregistered
document which was acted upon by physical partition of the properties by metes and bounds and
entries made in the public record about such physical partition by entering the names of sharers
as individual owner/s in the concerned public record, (such as records of the Municipal
Corporation or the Property Registers maintained by the Government) on the other hand. It is
only where an oral partition or partition by unregistered document is not followed by partition by
metes and bounds, evidenced by entries in the public records that a daughter would be in a
position to contend that the property still remains coparcenary property on the date of coming
into force of the Amendment Act. Thus for the Amended Section 6 to apply, not only the
daughter should be alive on the date of commencement of the Amendment Act, but also the
property should be coparcenary property on the date of the commencement of the Act i.e. 9
September 2005 or atleast on 20 December 2004, when the Amendment Bill was introduced in
Rajya Sabha.
46. Learned counsel for the appellants submitted that Section 3 of the Amendment Act 2005
substituted Section 6 of the Principal Act and therefore strong reliance is placed upon the
decision of the Supreme Court in Zile Singh vs. State Of Haryana & Others
MANU/SC/0876/2004 : (2004) 8-SCC-1 in support of the contention that a substitution results
not only in old rule ceasing to exist but also that new rule is brought into existence in place of
the earlier rule. It is, therefore, contended that the daughter of the coparcener has equal right in
the coparcenary property, as if she had been the son right from June 1956 and not merely from
9 September 2005 when the Amendment Act came into force. It is contended that amended
Section 6 would, therefore, cover all coparcenary property except that which was covered by any
testamentary dispossession or alienation including any partition, provided such partition was
made by the execution of the deed of partition duly registered under the Registration Act 1908
or partition effected by the decree of the Court.
47. We have serious doubt about the above contention advanced on behalf of the appellants for
more than one reason. In the first place, though Section 3 of the Amendment Act of Hindu
Succession (Amendment) Act 2005 has substituted with effect from 9 September 2005, erstwhile
Section 6 by the new Section 6, it cannot be said that the new Section 6 relates back to 17 June
1956, when the Principal Act came into force. In fact, sub-section (1) of amended Section 6
opens with the specific words "On and from the commencement of the Hindu Succession
(Amendment) Act, 2005". Secondly, sub-section (3) of Section 6 also opens with the words

"Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005,
his interest in the property of a joint Hindu family governed by the Mitakshara law, shall devolve
by testamentary or intestate succession, as the case may be and not by survivorship ... ...".
Amended Section 6 no where provides as to what is to happen to a case where Hindu died
before commencement of 2005 Amendment Act. Obviously, Legislature did not intend to leave
any vacuum for the period prior to 9 September 2005 when the Amendment Act came into force.
Case of a Hindu, who died prior to 9 September 2005 continues to be governed by pre-amended
Section 6.
48. For all these reasons, it is not possible to accept the contention urged on behalf of the
appellants that the Amendment Act 2005 is retrospective in nature and that it relates back to 17
June 1956 when the Principal Act came into force, so as to unsettle all the partitions which were
not effected by decrees of Court or registered documents even if executed prior to 20 December
2004.
The learned counsel for the Appellants went so far as to contend that the retrospective effect of
the Amendment Act of 2005 would even set at naught all notional partitions under the proviso to
Section 8 of the pre-amended Principal Act if such notional partition is not followed by partition
by metes and bounds. We are not impressed because the Amendment Act of 2005 affects
partitions inter vivos which were effected without decree of Court or by registered partition deed.
There is nothing in the Amendment Act to indicate that statutory partitions are rendered
nugatory. In case of statutory partition, there would be no possibility of any contrived or got up
partition.
49. To conclude this debate, we would like to quote the following statement of law made by
Staughton LJ in Secretary of State for Social Security Vs. Tunnicliffe (1991) 2-ALL-ER-712:
In my judgment the true principle is that Parliament is presumed not to have

intended to alter the law applicable to past events and transactions in a manner
which is unfair to those concerned in them, unless a contrary intention appears. It is
not simply a question of classifying an enactment as retrospective or not
retrospective. Rather it may well be a matter of degree. The greater the unfairness,
the more it is to be expected that Parliament will make it clear if that is intended.
The above statement of law was reiterated by House of Lords in L'Office Cherifien Vs. Yamashita
Limited (1994) 1-ALL ER-20, wherein Lord Mustill explained the rule of presumption against
retrospectivity in following words:
...... ... rule is none more than simple fairness, which ought to be the basis
of every legal rule. True it is that to change the legal character of a person's acts
or omissions after an event will very often be unfair; and since it is rightly taken for
granted that Parliament will rarely wish to act in a way which seems unfair it is
sensible to look very hard at a statute which appears to have this effect, to make
sure that this is what Parliament really intended. This is, however, no more than
common sense, the application of which may be impeded rather than helped by
recourse to formulae which do not adopt themselves to individual circumstances, and
which tend themselves to become the subject of minute analysis, where what ought
to be analysed is the statute itself.
(emphasis supplied)
50. We will now deal with the arguments which appealed to the Division Bench in Ganorkar's
case the first being Title to amended Section 6 "Devolution of interest in coparcenary property".
The Division Bench laid great emphasis on the said marginal note to come to the conclusion that
even on or after 9 September 2005, unless the coparcener died and his succession opened,
there is no devolution of interest and hence no daughter (born before 9 September 2005) of
such coparcener would be entitled to become a coparcener or to have rights or liability in the
coparcenary property alongwith son of such coparcener.

51. While earlier legal position was that the marginal note appended to the section cannot be
referred to for the purposes of construing the statute, even now, the settled legal position is that
marginal note cannot control or obstruct the meaning of the body of the section, when the
language of the section is clear and unambiguous (Dilawar Balu Karane Vs. State of Maharashtra
MANU/SC/0005/2002 : (2002) 2-SCC-135 and Union of India Vs. National Federation of Blind
MANU/SC/1025/2013 : (2013) 10-SCC-772).
52. It is necessary to note that the pre-amended Section 6 dealt only with the devolution of the
property on the death of the coparcener and therefore the marginal note to pre-amended
Section 6 was "Devolution of interest in coparcenary property". However, in the amended
Section 6, only sub-section (3) provides for devolution of property upon the death of the
coparcener. In other words, sub-section (1) of pre-amended Section 6 has been converted into
sub-section (3) of the Amended Section 6 with certain modification. But sub-section (1) of
Section 6 is entirely new provision, which confers new rights on a daughter of coparcener
without contemplating death of the coparcener. It appears to be sheer inadvertence on the part
of the draftman of the Amendment Act, 2005 that marginal note of Section 6 is not amended,
though Parliament drastically amended existing law on the subject, by conferring on crores of
daughters rights in the coparcenary property, even without reference to death of the coparcener
in sub-section (1) & sub-section (2) of the Amended Section 6.
53. In view of above discussion, in our view the correct legal position is that Section 6 as
amended by the 2005 Amendment Act is retroactive in nature meaning thereby the rights under
Section 6(1)(b) and (c) and under sub-Rule (2) are available to all daughters living on the date
of coming into force of the 2005 Amendment Act i.e. on 9 September 2005, though born prior to
9 September 2005. Obviously, the daughters born on or after 9 September 2005 are entitled to
get the benefits of Amended Section 6 of the Act under clause (a) of sub section (1). In other
words, the heirs of daughters who died before 9 September 2005 do not get the benefits of
amended Section 6.
QUESTIONS (b) & (c)
54. So far as questions (b) and (c) are concerned, they are being considered together, as the
discussion would be common. So far as question (d) is concerned, it is already answered while
dealing with question (a).
(b) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the
Amendment Act, applies to daughters born prior to 17.6.1956?
(c) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the
Amendment Act, applies to daughters born after 17.6.1956 and prior to 9.9.2005?
55. Learned counsel for the Appellants submit that the Act applies to daughters whenever they
are born. They submitted that though Section 6 of the Amendment Act is retrospective w.e.f. 17
June 1956, the benefit of the same would be applicable to all daughters whenever born even
after 17 June 1956. The operation of Section 6 of the Principal Act cannot be restricted. Reliance
is placed on the decision of a Division Bench of Karnataka High Court in Pushpalatha N.V. Vs. V.
Padma (supra) MANU/KA/0124/2010 : AIR-2010-Karnataka-124.
56. Learned Counsel for the Respondents opposed the application and submitted that Section 6
of the Principal Act would only apply to daughters born after 9 September 2005 and in support,
rely on the submissions made earlier viz.:
(a) Opening words of Section 6(1) clearly state "On and from the commencement of
Hindu Succession Amendment Act 2005" which itself signifies that the same would
be applicable only to daughters born after 9 September 1995;
(b) In case the benefit of amended Section 6 is given to daughter born before 9
September 2005, it would lead to a lot of uncertainty and displace vested rights; and

(c) Without prejudice, it is submitted that in any case, benefit of amended Section 6
of the Act cannot be extended to daughters born prior to 17 June 1956. This is so as
the Principal Act itself came into force on that date.
57. We have considered the rival submissions. On an examination of amended Section 6 of the
Principal Act and bearing in mind the words 'on and from commencement of the Hindu
Succession Act, 2005' found in Section 6, it must follow that the rights under the amended
Section 6 can be exercised by a daughter of a coparcener only after the commencement of the
Amendment Act 2005. Therefore, it is imperative that the daughter who seeks to exercise such a
right must herself be alive at the time when the Amendment Act, 2005 was brought into force. It
would not matter whether the daughter concerned is born before 1956 or after 1956. This is for
the simple reason that the Hindu Succession Act 1956 when it came into force applied to all
Hindus in the country irrespective of their date of birth. The date of birth was not a criterion for
application of the Principal Act. The only requirement is that when the Act is being sought to be
applied, the person concerned must be in existence/living. The Parliament has specifically used
the word "on and from the commencement of Hindu Succession (Amendment) Act, 2005" so as
to ensure that rights which are already settled are not disturbed by virtue of a person claiming
as an heir to a daughter who had passed away before the Amendment Act came into force.
58. Since the Appellants have relied upon the decision of the Karnataka High Court in Pushpalata
case (supra) MANU/KA/0124/2010 : AIR-2010-Karnataka-124, we may set out reasoning and
conclusion of the Karnataka High Court:
101.... ... ... a vested right can be taken away by way of an amendment by the
legislature by expressly saying so or by implication. Secondly, a declaratory law is
retrospective in operation because the object of such declaratory law is to supply the
omission. In the instant case, in 1956 when the Act was passed, the daughters of a
coparcener was not treated as coparcener nor any right in the coparcenary property
by birth was conferred on her. Now, by a declaration such a right is sought to be
conferred. It is done by way of substitution. In other words, the legislative intent is
to supply the omission in the original Act. The parliament has not kept any one in
doubt about their intention. The effect is that the Act as enacted in 1956 is to be
read and construed as if the altered words/new section had been written into the
earlier Act with the pen and ink and the old Section/Words scored out, so that
thereafter there is no need to refer to the amending Act at all. The constitutional
validity of the substituted section is not under challenge. On the contrary, the
substituted section is in conformity with the constitutional provision. The effect is old
Section 6 is superseded by the new Section 6, the amended section taking the place
of the original section, for all intents and purposes as if the amendment had always
been there. This is the way the parliament has expressly made its intention clear to
the effect the amendment is retrospective.
102. Secondly, though the opening words of the section declares that "on and from
the commencement of the Hindu Succession (Amendment) Act, 2005, the daughter
of a coparcener in a joint family governed by the Mithakshara is conferred the status
of coparcener, it is expressly stated that she becomes a coparcener by birth.
Conferment of the status is different from conferring the rights in the coparcenary
property. The right to coparcenary property is conferred from the date of birth,
which necessarily means from the date anterior to the date of conferment of status,
and thus the Section is made retroactive. By such express words the amended
section is made retrospective.
103. Thirdly, the proviso to Section 6(1) makes the intention of the parliament
manifestly clear. The Parliament has expressly stated in the proviso to sub-section
(1) of Section 6 -the substituted provision, that the declaration of right in favour of a
daughter as a coparcener though it takes effect by birth i.e. anterior to the
amendment, the same would not affect or invalidate any disposition or alienation
including any partition or testamentary disposition of property which had taken place
before the 20th day of December 2004. The way this proviso is expressed makes it
clear the substituted provision is retrospective in operation. By substitution it is

made clear that this provision is there in the principal Act from 1956 itself. But, as
the amendment came into force only in 2005, the question would arise that what
should happen to the transactions between 1956 and 2005, it is in this context the
Parliament has expressly stated though the right by birth is given from 1956, if the
dispositions.
59. Having carefully gone through the above reasoning and conclusion in Pushpalatha case
(supra) MANU/KA/0124/2010 : AIR-2010-Karnataka-124, while we agree that the legislative
intent was to protect interest of the third parties who acquired interests in the coparcenary
property and also to protect the interest of the scarcenesshere coparcenary became their
separate properties, as already discussed in paragraph 45 hereinabove, it is not possible to
agree with the view in Pushpalata case (supra) MANU/KA/0124/2010 : AIR-2010-Karnataka-124
that a daughter of a coparcener born before 9 September 1996 became a coparcener by birth
anterior to the amendment. As already indicated earlier, clause (a) of sub-section (1) of
amended Section 6 only applies to daughter born on or after the date of commencement of the
Amendment Act i.e. born on or after 9 September 2005. It is only by virtue of clauses (b) and
(c) of sub-section 1 of Amended Section 6 that the daughters born before 9 September 2005
acquired rights in coparcenary property and acquired the status of scarceness with effect from 9
September 2005. For the reasons already indicated in this judgment, the view taken by the
Karnataka High Court in Pushpalata case (supra) MANU/KA/0124/2010 : AIR-2010-Karnataka-
124 that a daughter of the coparcener gets right in coparcenary property with retrospective
effect from 17 June 1956 or from the date of birth prior to 9 September 2005 does not commend
to us. As held by us earlier, the provisions of Amended Section 6 are retroactive in operation,
and daughter living on 9 September 2005 gets rights in coparcenary property with effect from 9
September 2005.
60. In the above view of the matter, so far as questions (b), (c) and (d) are concerned, we hold
that the Amendment Act applies to daughters born any time provided the daughters born prior
to 9 September 2005 are alive on the date of coming into force of the Amendment Act i.e. on 9
September 2005. There is no dispute between the parties that the Amendment Act applies to
daughters born on or after 9 September 2005.
QUESTION (e)
61. The Supreme Court held in Ganduri Koteshwaram (supra) MANU/SC/1216/2011 : (2011)-9-
SCC-788 that the amended Section 6 will apply to a partition suit wherein the final decree was
not passed before the date of commencement of the Amended Act of 2005. Those observations
have to be examined in the context of the facts of that case, partition had taken place between
father and two sons, each of them getting 1/3rd of the coparcenary property. Thereafter, when
the father died, his interest in the coparcenary property was divided on notional partition in
terms of proviso to erstwhile Section 6(1) of the Principal Act between two daughters and two
sons. A preliminary decree was passed in 1999, which was amended in 2003.
The final decree for partition was not yet passed, when the Amendment Act 2005 came into
force on 9 September 2005. In view of the said amendment, two daughters sought a share in
the property claiming to be equal to their brothers' share and prayed for amendment of the
preliminary decree on that basis. The Trial Court allowed the daughters' application by order
dated 15 June 2009 and held that they were entitled for re-allotment of shares in the preliminary
decree, i.e., they are entitled to 1/4th share each and separate possession. The
plaintiffs/brothers challenged the order of the Trial Court in appeal before the Andhra Pradesh
High Court. The single Judge of the High Court allowed the appeal and set aside the order of the
Trial Court. In the appeal filed by sisters, the Supreme Court set aside the order of the High
Court and restored the order of the Trial Court and directed the Trial Court to proceed for
preparation of the final decree in terms of its order dated 15 June 2009.
62. While rendering its decision in the above case, the Supreme Court made the following
observations:-
9. The 1956 Act is an Act to codify the law relating to intestate succession among

Hindus. This Act has brought about important changes in the law of succession but
without affecting the special rights of the members of a Mitakshara coparcenary. The
Parliament felt that non-inclusion of daughters in the Mitakshara coparcenary
property was causing discrimination to them and, accordingly, decided to bring in
necessary changes in the law. The Statement of Objects and Reasons of the 2005
Amendment Act, inter alia, reads as under:
....... The retention of the Mitakshara coparcenary property without

including the females in it means that the females cannot inherit in
ancestral property as their male counterparts do. The law by excluding
the daughter from participating in the coparcenary ownership not only
contributes to her discrimination on the ground of gender but also has
led to oppression and negation of her fundamental right of equality
guaranteed by the Constitution. Having regard to the need to render
social justice to women, the States of Andhra Pradesh, Tamil Nadu,
Karnataka and Maharashtra have made necessary changes in the law
giving equal right to daughters in Hindu Mitakshara coparcenary
property.
10. With the above object in mind, the Parliament substituted the existing Section 6
of the 1956 Act by a new provision vide 2005 Amendment Act. ......
11. The new Section 6 provides for parity of rights in the coparcenary property
among male and female members of a joint Hindu family on and from September 9,
2005. The Legislature has now conferred substantive right in favour of the
daughters. According to the new Section 6, the daughter of a coparcener becomes a
coparcener by birth in her own rights and liabilities in the same manner as the son.
The declaration in Section 6 that the daughter of the coparcener shall have same
rights and liabilities in the coparcenary property as she would have been a son is
unambiguous and unequivocal. Thus, on and from September 9, 2005, the daughter
is entitled to a share in the ancestral property and is a coparcener as if she had been
a son.
12. The right accrued to a daughter in the property of a joint Hindu family governed
by the Mitakshara Law, by virtue of the 2005 Amendment Act, is absolute, except in
the circumstances provided in the proviso appended to sub-section (1) of Section 6.
The excepted categories to which new Section 6 of the 1956 Act is not applicable are
two, namely, (i) where the disposition or alienation including any partition has taken
place before December 20, 2004; and (ii) where testamentary disposition of
property has been made before December 20, 2004. ................
63. Perusal of the above decision of the Supreme Court leaves no room for doubt that the
amended Section 6 came to be applied to a case where daughters were born long prior to the
date of coming into force of the Amendment Act, 2005 and still the Supreme Court gave them
the benefits of amended Section 6 by recognizing rights of daughter to get share in the
coparcenary property, as if she had been a son.
64. Learned counsel for respondents would, however, submit that only question which the Court
considered was set out in the later portion of paragraph 12 of the judgment, which reads as
under:-
In the backdrop of the above legal position with reference to Section 6 brought in
the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as
to whether the preliminary decree passed by the trial court on March 19, 1999 and
amended on September 27, 2003 deprives the appellants of the benefits of 2005
Amendment Act although final decree for partition has not yet been passed.
And, therefore, the Supreme Court was not called upon to examine the question which is posed
for our consideration.

65. It is true that the question of retrospective, retroactive or prospective operation of Section 6
does not appear to have been argued in so many words and, therefore, the Respondents appear
to be invoking "sub silentio" principle. We may refer to Salmond on Jurisprudence, Twelfth
Edition, Chapter-V-Precedent, wherein the sub silentio principle is explained as under:
27. Circumstances destroying or weakening the binding force of precedent:
A decision passes sub silentio, in the technical sense that has come to be
attached to that phrase, when the particular point of law involved in the
decision is not perceived by the Court or present to its mind. The Court
may consciously decide in favour of one party because of point A, which
it considers and pronounces upon. It may be shown, however, that
logically the Court should not have decided in favour of the particular
party unless it also decided point B in his favour; but point B was not
argued or considered by the Court. In such circumstances, although
point B was logically involved in the facts and although the case had a
specific outcome, the decision is not an authority on point B. Point B is
said to pass sub silentio.
.........
The rule that a precedent sub silentio is not authoritative goes back at
least to 1661 R. Vs. Warner (Ward) 1 Keb. 66 : 1 Lev. 8, when counsel
said: "... An hundred precedents sub silentio are not material"; and
Twisden J; agreed: "Precedents sub silentio and without argument are of
no moment". This rule has ever since been followed O'Shea Vs. O'Shea
and Parnell *(1890) 15-P.D. 59 at 64 (C.A.). But the Court before whom
the precedent is cited may be reluctant to hold that its predecessor failed
to consider a point directly raised in the case before it Gibson Vs. South
American Stores Ltd. (1950) Ch. 177 at 196-197 (C.A.), and this
reluctance will be particularly pronounced if the sub silentio attack is
levelled against not one case but a series Young Vs. Sealey (1949) 1 All
E.R. 92 at 108.
It would thus appear that only a Court of coordinate jurisdiction would be in a position to decline
to follow a precedent on the ground of sub silentio. However, since the view taken by us
independently also accords with the view taken by the Supreme Court in Ganduri
Koteshwaramma's case MANU/SC/1216/2011 : (2011) 9-SCC-788, we are not required to dwell
on this aspect any further.
66. With respect to the learned counsel for respondents, it would defy logic to say that without
considering whether the amended Section 6 is prospective, retrospective or retroactive, the
Supreme Court could have decided the question whether the preliminary decree modified by the
Trial Court upon coming into force of Amendment Act, 2005 was in accordance with amended
Section 6 or not. Observations of the Supreme Court in paras 9 to 12 of the decision in Ganduri
Koteshwaramma's case (supra) MANU/SC/1216/2011 : (2011) 9-SCC-788 leave no room for
doubt that the Supreme Court applied the provisions of amended Section 6 retroactively i.e. by
applying the amended Section 6 to a case where the rights of the parties had not become final.
If amended Section 6 was applicable only to daughters born after 9 September 2005, the
Supreme Court could not and would not have applied amended Section 6 to a partition suit
pending on 9 September 2005, the daughters of the deceased coparcener having obviously been
born before 1999.
In our view, therefore, the binding force of the decision in Ganduri Koteshwaramma's case
(supra) MANU/SC/1216/2011 : (2011) 9-SCC-788 is not weakened on the ground urged on
behalf of the Respondents.
67. Learned counsel for the respondents, however, submitted that in Ganduri's case (supra)
MANU/SC/1216/2011 : (2011) 9-SCC-788, which the Supreme Court decided on 12 October

2011, the attention of the Supreme Court was not invited to its decision in G. Sekhar v/s. Geeta
and ors. (supra) MANU/SC/0581/2009 : (2009) 6-SCC-99 wherein it was in terms held that
operation of the Amendment Act of 2005 is prospective in nature and not retrospective. Strong
reliance was placed on the following observations made in para 30 of the judgment-
Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where
succession had already been taken place. The operation of the said statute is no
doubt prospective in nature. The High Court might have committed a mistake in
opining that the operation of Section 3 of the 2005 Act is retrospective in character,
but, for the reasons aforementioned, it does not make any difference. What should
have been held was that although it is not retrospective in nature, its application is
prospective.
68. Though the argument advanced on behalf of the respondents may seem attractive at first
blush, we must remember that G. Sekhar case (supra) MANU/SC/0581/2009 : (2009) 6-SCC-99
was concerned with Section 23 of the Hindu Succession Act, 1956, prior to its deletion with
effect from 9 September 2005. The judgment in G. Sekhar case (supra) MANU/SC/0581/2009 :
(2009) 6-SCC-99 opens with words:
Leave granted. Effect of the amendment in the Hindu Succession Act, 1956 (for short
"the Act") by reason of the Hindu Succession (Amendment) Act, 2005 (for short "the
2005 Act") insofar as therein Section 23 has been omitted is the question involved
herein.
69. The suit property was owned by G.G. died on 9 November 1996 leaving behind one son and
four daughters. Two daughters filed a suit for partition in 1996 on the premise that G died
intestate. The suit property, inter alia, consisted of residential house. The son contended that
the deceased had executed a Will bequeathing the suit property in his favour and in any event
having regard to provisions of Section 23 of the Act, the suit for partition of a residential
property was not maintainable. The Will was contested. The single Judge of the Madras High
Court on the Original Side held that the son could not prove execution of the Will in view of
suspicious circumstances surrounding alleged execution of the Will and the learned single Judge
also rejected the contention based on Section 23 of the Act in 2001. Thereafter the Amendment
Act 2005 came into force. The Division Bench of the Madras High Court applied the amended Act
and held that in view of deletion of Section 23, there was no embargo on partition of the
residential property after 9 September 2005. After 9 September 2005, any family member can
seek partition even in respect of the dwelling house. Therefore, the question of applying bar of
Section 23 of the Act no longer survives for consideration.
70. The plaintiff-brother challenged the above decision of the Division Bench before the Supreme
Court and contended that Amendment Act of 2005 is prospective and cannot be held to have
retrospective effect and therefore, rights and obligations of the parties under Section 23 should
have been determined as were obtaining on the date of institution of the suit.
71. After referring to the Report of the Law Commission and the Statement of Objects and
Reasons of the Amendment Act of 2005, the Supreme Court made the following observations in
paras 25, 26, 40 & 55:-
25. It is, therefore, evident that the Parliament intended to achieve the goal of
removal of discrimination not only as contained in Section 6 of the Act but also
conferring an absolute right in a female heir to ask for a partition in a dwelling house
wholly occupied by a joint family as provided for in terms of Section 23 of the Act.
26. Section 23 of the Act has been omitted so as to remove the disability on female
heirs contained in that Section. It sought to achieve a larger public purpose. If even
the disability of a female heir to inherit the equal share of the property together with
a male heir so far as joint coparcenary property is concerned has been sought to be
removed, we fail to understand as to how such a disability could be allowed to be
retained in the statute book in respect of the property which had devolved upon the

female heirs in terms of Section 8 of the Act read with the Schedule appended
thereto.
40. It is merely a disabling provision. Such a right could be enforced if a cause of

action therefor arose subsequently. A right of the son to keep the right of the
daughters of the last male owner to seek for partition of a dwelling house being a
right of the male owner to keep the same in abeyance till the division takes place is
not a right of enduring in nature. It cannot be said to be an accrued right or a vested
right. Such a right indisputably can be taken away by operation of the statute and/or
by removing the disablement clause.
55. Even otherwise, it is not a fit case where we should exercise our discretionary
jurisdiction under Article 136 of the Constitution of India as the fact remains that
Section 23 of the Hindu Succession Act as it stood was to be applicable on the date
of the institution of the suit. Respondents may file a new suit and obtain a decree for
partition.
The principle laid down by the Supreme Court in Sheeladevi's case (supra)
MANU/SC/4318/2006 : (2006) 8-SCC-581, therefore, does not militate against the view taken
by us that the Amendment Act of 2005 applies to a daughter of coparcener, who (the daughter)
is born before 9 September 2005 and alive on 9 September 2005, on which date the
Amendment Act of 2005 came into force. Of course, there is no dispute about the entitlement of
daughter born on or after 9 September 2005.
72. Thus, finally the Supreme Court confirmed the decision of the Division Bench of Madras High
Court in enforcing the daughter's rights to demand partition of a dwelling house in the
proceedings which were pending before the Division Bench of Madras High Court, when the
Amendment Act of 2005 came into force. The Supreme Court considered the erstwhile provision
of Section 23 as a mere disability and not conferring substantive right on the son. Hence, the
disability could be removed by a retrospective legislation.
73. It is necessary to note that in para 12 of the judgment, the Supreme Court did set out the
contention of the appellant-brother in the following words:
If Section 23 of the Act is given retrospective effect, Section 6 of the Act will also
stand amended with retrospective effect.
The Supreme Court, however, did not express any opinion on this question at all. It cannot,
therefore, be said that the decision of the Supreme Court in Ganduri's case (supra)
MANU/SC/1216/2011 : (2011) 9-SCC-788 rendered in 2011 runs counter to the decision
rendered on 15 April 2009 in G. Sekhar's case (supra) MANU/SC/0581/2009 : (2009) 6 SCC 99.
74. In any view of the matter, there is nothing in the decision of the Supreme Court in G.
Sekhar's case (supra) MANU/SC/0581/2009 : (2009) 6-SCC-99 indicating that the Amendment
Act 2005 is not to apply to daughters born prior to 9 September 2005.
75. Coming to the Supreme Court decision in Sheeladevi's case (supra) MANU/SC/4318/2006 :
(2006) 8-SCC-581, the learned counsel for the Respondents placed heavy reliance on the
following observations in paragraph 21 of the judgment, which were also referred to by a
Division Bench in Vaishali Ganorkar's case (supra) MANU/MH/0090/2012 : 2012 (5)-Bom. C.R.-
210:
21. The Act indisputably would prevail over the old Hindu law. We may notice that
Parliament, with a view to confer right upon the female heirs, even in relation to the
joint family property, enacted the Hindu Succession Act, 2005. Such a provision was
enacted as far back in 1987 by the State of Andhra Pradesh. The succession
having opened in 1989, evidently, the provisions of the Amendment Act,
2005 would have no application. Sub-section (1) of Section 6 of the Act governs
the law relating to succession on the death of a coparcener in the event the heirs are

only male descendants. But, the proviso appended to sub-section (1) of Section 6 of
the Act creates an exception. First son of Babu Lal viz. Lal Chand, was, thus, a
coparcener. Section 6 is an exception to the general rules. It was, therefore,
obligatory on the part of the respondent-plaintiffs to show that apart from Lal Chand,
Sohan Lal will also derive the benefit thereof. So far as the second son, Sohan Lal is
concerned, no evidence has been brought on record to show that he was born prior
to coming into force of the Hindu Succession Act, 1956.
(emphasis supplied)
In the above case, the Supreme Court was concerned with a fact situation where Baburam died
in the year 1989 leaving behind two sons and three daughters. The elder son Lal Chand was
born in 1938 whereas Sohan Lal was born in 1956. Baburam had inherited the share in the
coparcenary property left by his father. The High Court considered the question whether the
provisions of Section 8 of the 1956 Act would apply or the law as applicable prior to 1956 Act
would apply. The High Court held that the law applicable before 1956 would govern the rights of
the parties and not the provisions of 1956 Act. In the appeal preferred by the sisters, the
Supreme Court held that the succession having opened in 1989 on the death of Baburam,
evidentially , the Hindu Succession Act, 1956 would apply and the provisions of the Amendment
Act of 2005 would have no application.
76. As indicated by us earlier, the case of coparcener who died before 9 September 2005 would
be governed by pre-amended Section 6(1) of the Act. It is only in case of death of a coparcener
on or after 9 September 2005 that the amended Section 6(3) of the Act would apply. The
Division Bench was, therefore, not right in relying upon the Supreme Court decision in
Sheeladevi (supra) MANU/SC/4318/2006 : (2006) 8-SCC-581 for the purpose of holding that the
daughters born prior to 9 September 2005 would get a share in the coparcenary property only
upon the death of the coparcener after 9 September 2005. In other words, the provisions of the
amended Section 6(3) do not and cannot implinge upon or curtail or restrict the rights of
daughters born prior to 9 September 2005 under sub-Sections (1) and (2) of the amended
Section 6 of the Act. Sub-Sections (1) and (2) of amended Section 6 of the Act on the one hand
and sub-Section (3) of the amended Section 6 of the Act on the other hand operate in two
different fields.
We are, therefore, of the view that the binding force of the Supreme Court decision in Ganduri
Koteshwaramma (supra) MANU/SC/1216/2011 : (2011) 9-SCC-788 is not weakened by non
consideration of the Supreme Court decisions in G. Sekhar's case (supra) MANU/SC/0581/2009 :
(2009) 6-SCC-99 and in Sheeladevi's case (supra) MANU/SC/4318/2006 : (2006) 8-SCC-581.
We, therefore, answer question (e) in the affirmative that is to say, the decision of the Division
Bench in Vaishali Ganorkar's case (supra) MANU/MH/0090/2012 : 2012 (5)-Bom. C.R.-210 is per
incuriam the Supreme Court decision in Ganduri Koteshwaramma (supra)
MANU/SC/1216/2011 : (2011) 9-SCC-788.
77. In view of the above discussion, we now answer the questions posed in the reference for our
opinion as under:-
(I) Question (a)-Section 6 of Hindu Succession Act, 1956 as amended by the

Amendment Act of 2005 is retroactive in operation, as explained in this judgment.
In brief:
Clause (a) of sub-section (1) of amended Section 6 is prospective in

operation;
Clauses (b) and (c) and other parts of sub-section (1) as well as sub-
section (2) of amended Section 6 are retroactive in operation, as
indicated hereinafter.
(II) Questions (b), (c) and (d)- Amended Section 6 applies to daughters born prior to

17 June 1956 or thereafter (between 17 June 1956 and 8 September 2005),
provided they are alive on 9 September 2005 that is on the date when the
Amendment Act of 2005 came into force. Admittedly amended Section 6 applies to
daughters born on or after 9 September 2005;
(III) Question (e)- Yes. Decision of the Division Bench of this Court in Vaishali S.
Ganorkar MANU/MH/0090/2012 : 2012 (5)-Bom. C.R.-210 is per incuriam the
Supreme Court decision in Ganduri Koteshwaramma MANU/SC/1216/2011 : (2011)
9-SCC-788 case.
© Manupatra Information Solutions Pvt. Ltd.

Kotturuswami v. Veeravva, AIR 1959 SC 577
Summary: Section 14 of the Hindu Succession Act, 1956 applies to that property
which is in the poseession of woman when the Act came into force. ‘In possession’
means ownership or power over the property and this Section applies to the property
which has been acquired before the Act came into force.
Hon'ble Judges: J.L. Kapur, S.K. Das and Jafer Imam, JJ.
JUDGMENT
Imam, J.
1. This appeal is before us on a certificate granted by the High Court as according to that
Court a substantial question of law arose in the case which was stated by it to be "Is the
adoption of the second defendant invalid, as the approval or consent of the five trustees
mentioned in paragraph 14 of the will of Kari Veerappa, Exbt. P-2(a) was not obtained;
and is the authority to adopt at an end if any one of those five persons did not accept the
trusteeship or died before the adoption or refused to give their approval". In view of
certain matters about to be stated, the question of law as propounded by the High Court
does not require to be considered.
2. Kari Veerappa was the last male owner of the estate mentioned in his will, Exbt. P-2(a),
which he executed on October 10, 1920. Under this will he authorised his wife Setra
Veeravva, first defendant, to adopt a son for the purpose of continuation of his family as
he had no issue. The authority to adopt was in the following terms :
"I have given her permission to adopt as many times as would be necessary, should the
previous adoption be unsuccessful. But Veeravva must adopt only a boy approved by the
respectable persons appointed by me in paragraph 14; should Veeravva die before making
any adoption, the persons becoming trustees should arrange for the adoption of a boy for
the continuation of my family in accordance with my kulachara (family usage)".
3. At this stage it is unnecessary to refer to the other provisions of the will of Kari
Veerappa. This gentleman died on October 23, 1920. After his death, his widow made two
attempts to adopt a son in accordance with his will. The first attempt was in 1939 which
did not accomplish the purpose of the will as the person alleged to have been adopted
died. The validity of this adoption was being questioned, but as the boy said to have been
adopted had died, efforts to dispute the adoption did not materialise. Veeravva thereafter,
on October 11, 1942, adopted second defendant, Sesalvada Kotra Basayya. Two
documents in this connection are on the record. The first document is Exbt. D-25 dated the
18th of September, 1942, which was a registered agreement to adopt the second
defendant. The second document is also a registered document, which is described as the
deed of adoption and is dated June 23, 1943. This clearly states that on October 11, 1942,
Veeravva had adopted the 2nd defendant. Reference was also made in this document to
the agreement of September 18, 1942. The appellant claiming to be the nearest reversioner
of Kari Veerappa filed the present suit asking for a declaration that the adoption of the
second defendant by Veeravva was invalid and not binding on the appellant or the other
reversioners to the estate of the late Kari Veerappa.
4. The suit filed by the appellant was heard by the District Judge of Bellary who dismissed
it. The appellant appealed to the High Court of Madras. His appeal was dismissed and the
decision of the District Judge was substantially affirmed. The High Court did not allow
compensatory costs granted by the District Judge, nor did it agree with his finding that the
appellant had failed to prove the relationship he had propounded and that he was not a
reversioner at all, far less the nearest reversioner. In the opinion of the High Court, the
appellant was a relative and a reversioner, though he had not proved that he was the
nearest reversioner alive at the time the appeal was heard and that he need not prove this
until he actually sought to recover possession of the property after Veeravva's death.
5. When this appeal came on for hearing the learned Advocate for the respondents took a
preliminary objection that the suit filed by the plaintiff must in any event fail, having
regard to the provisions of section 14 of the Hindu Succession Act, 1956 (30 of 1956),
hereinafter referred to as the Act. Hence the present appeal arising out of the suit must also
fail. It was contended on behalf of the respondents that either there was a valid adoption or
there was not. If there was a valid adoption and the decisions of the High Court and the
District Judge on this question were correct, then obviously the suit of the appellant must
be dismissed. If, on the other hand, it was found that the adoption of the second defendant
by Veeravva was either invalid or, in fact, had not taken place, then under the provisions
of section 14 of the Act, Veeravva became the full owner of her husband's estate and was
not a limited owner thereof. Consequently, the appellant's suit was not maintainable. In
view of this submission we are of the opinion that the point raised by way of preliminary
objection must first be considered and decided. It is well settled that an appellate court is
entitled to take into consideration any change in the law (vide the case of Lachmeshwar
Prasad Shukul v. Keshwar Lal Chaudhuri [1940] F.C.R. 84.
6. Section 14 of the Act states :-
"14(1) Any property possessed by a female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as full owner thereof and not as a limited
owner.
Explanation. - In this sub-section, "property" includes both movable and immovable

property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu
of maintenance or arrears of maintenance, or by gift from any person, whether a relative or
not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by
prescription, or in any other manner whatsoever, and also any such property held by her as
stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of
gift or under a will or any other instrument or under a decree or order of a civil court or
under an award where the terms of the gift, will or other instrument or the decree, order or
award prescribe a restricted estate in such property."
7. On behalf of the appellant it was urged that section 14 of the Act did not apply to the
facts of the present case because the estate of Veerappa was not in possession of his
widow Veeravva but was in possession of the second defendant at the time the Act came
into force and, secondly, because under sub-section (2) of section 14 Veeravva got a
restricted estate under the will Exbt. P-2(a) and the agreement to adopt, Exbt. D-25. It was
submitted that the widow's power of adoption did not depend on her ownership of the
estate of her husband. That power in the present case was derived under the Hindu law
eight from the authority conferred by her husband or the consent of his agnates. The Act
did not enlarge her power of adoption and did not render an invalid adoption made by her
immune from attack by the reversioners during her life time. The act of Veeravva in the
present case was to bring in a stranger. The appellant as a reversioner was, therefore,
entitled during the life time of Veeravva to bring the present suit to obtain a declaration
that the adoption of the second defendant was invalid.
8. The question raised by the preliminary objection taken by the respondents must be
considered on the assumption that the adoption of the second defendant was invalid. The
provisions of section 14 of the Act would not arise for consideration, if the second
defendant had been validly adopted. It is necessary, therefore, to determine whether the
provisions of section 14 apply to the facts of the present case.
9. It was strongly urged on behalf of the appellant that the words "any property possessed
by a female Hindu" in section 14 of the Act referred to actual possession of the property
whether the property was acquired before or after the Act came into force. This was a
condition precedent to the applicability of the provisions of section 14 to the present case.
Since the Act came into force on June 17, 1956, and the decision of the High Court was
given on March 25, 1955, the question as to who was in actual possession of the estate of
Veerappa did not arise for consideration on the case of the appellant set out in his plaint.
The appellant should accordingly be given an opportunity to have a finding recorded on
this question after the taking of evidence in that respect. On behalf of the respondents it
was urged that the words "any property possessed by a female Hindu" did not refer merely
to actual physical possession only but to ownership and possession in law as well.
10. It was further urged on behalf of the respondents that even if it be assumed that the
words "possessed by a female Hindu" mean actual possession then, in the present case, it
had been proved that Veeravva was in actual possession of the estate of Veerappa when
the Act came into force. It could not be disputed that on the death of Veerappa, Veeravva
came into possession of his estate and that she remained in possession at least until 1942
when the adoption of the second defendant is said to have taken place. But even on the
adoption of the second defendant, the agreement to adopt dated September 18, 1942,
stated that Veeravva was to remain in possession of her husband's estate during her life
time in spite of the adoption. In the written statement filed by Veeravva and the second
defendant it was clearly stated in para. 6 thereof that Veeravva came into possession of her
husband's property and that she recovered possession of the property covered by the
decree in O.S. 20 of 1921 on the file of the Subordinate Judge's Court, Bellary, and that
she had been in sole possession of the said property up-to-date and that although she had
adopted the second defendant on October 11, 1942, it was subject to retention of the
enjoyment, possession and management by her of her husband's property during her life
time. An affidavit had been filed in this Court by the second defendant in which he has
clearly admitted that Veeravva is still in possession of his adoptive father's estate in
pursuance of the agreement of September 18, 1942. This was an admission against his
own interest by the second defendant which he was not likely to make unless it was a fact
that Veeravva was in possession of the estate since her husband's death up to the present.
In answer to the affidavit of the second defendant and Veeravva that she was in actual
possession, the appellant had failed to file an affidavit with any clear assertion that to his
knowledge Veeravva was not in possession. The affidavit filed by the appellant was in the
nature of submissions made to the Court rather than an affidavit in which facts to his
knowledge were asserted. In para. 2 he had made the significant statement "I understand
that the possession of the suit properties has been and is now, in truth and in fact, with the
alleged adopted son, the second petitioner. He is in possession of these properties and is
dealing with them." He did not disclose how he came to understand this. He certainly did
not assert that all that was stated in para. 2 was to his knowledge. As an alternative, the
appellant in para. 4 of his affidavit had submitted "If I succeed in proving that the
adoption is not true and valid, the petitioner cannot turn round and say that the possession
of the first petitioner is that of a widow of an intestate and invoke the provisions of section
14 of the Succession Act." He had further submitted in this paragraph that, even on the
case of the respondent set out in their petition for adding additional grounds, Veeravva's
estate was divested by the adoption, and as she came into possession by reason of the ante-
adoption agreement Exbt. D-25, section 14 of the Act was not applicable. It seems to us
that if it were permissible to decide the question of Veeravva's possession on only the
affidavits before us, we would find no difficulty in holding that she was in possession of
her husband's estate when the Act came into force. It is to be remembered, however, that
this question has arisen now and the appellant has had no real opportunity to establish his
assertion that the second defendant is in actual possession and not Veeravva. It is
necessary therefore to consider the true scope and effect of the provisions of sub-section
(1) of section 14 of the Act. If the words "possessed by a female Hindu" occurring therein
refer only to actual physical possession, it may be necessary to call for a finding on the
question of such possession; if, on the contrary, these words have a wide connotation and
include constructive possession or possession in law, the preliminary objection can be
determined on the footing that Veeravva was in such possession at the relevant time.
11. The provisions of section 14 of the Act have been the subject of scrutiny and
interpretation by various High Courts. In the case of Rama Ayodhya Missir v. Raghunath
Missir MANU/BH/0144/1957 : AIR1957Pat480 , and in the case of Mt. Janki Kuer v.
Chhathu Prasad MANU/BH/0195/1957 : AIR1957Pat674 , the Patna High Court took the
view that the effect of sections 14 and 15 of the Act was that a reversioner recognised as
such under the Hindu law was no more a reversioner, as a female Hindu possessing any
property, whether acquired before or after the commencement of the Act, held not a
limited estate but an absolute estate therein, and after the coming into force of the Act, he
had no right of reversion or any kind of spes successionis. The High Courts of Calcutta,
Andhra Pradesh and Madhya Pradesh have taken a view which does not support the view
expressed by the Patna High Court in the aforesaid cases. The High Court of Madhya
Pradesh in the case of Mt. Lukai v. Niranjan MANU/MP/0056/1958 : AIR1958MP160 ,
dissented from the decisions of the Patna High Court in the above-mentioned cases.
Indeed, the Patna High Court in the case of Harak Singh v. Kailash Singh
MANU/BH/0191/1958 : AIR1958Pat581 , overruled its previous decisions referred to
above, and rightly pointed out that the object of the Act was to improve the legal status of
Hindu women, enlarging their limited interest in property inherited or held by them to an
absolute interest, provided they were in possession of the property when the Act came into
force and, therefore, in a position to take advantage of its beneficial provisions; but the
Act was not intended to benefit alienees who with their eyes open purchased the property
from the limited owners without justifying necessity before the Act came into force and at
a time when the vendors had only a limited interest of Hindu women.
12. In the case before us, the essential question for consideration is as to how the words
"any property possessed by a female Hindu, whether acquired before or after the
commencement of this Act" in section 14 of the Act should be interpreted. Section 14
refers to property which was either acquired before or after the commencement of the Act
and that such property should be possessed by a female Hindu. Reference to property
acquired before the commencement of the Act certainly makes the provisions of the
section retrospective, but even in such a case the property must be possessed by a female
Hindu at the time the Act came into force in order to make the provisions of the section
applicable. There is no question in the present case that Veeravva acquired the property of
her deceased husband before the commencement of the Act. In order that the provisions of
section 14 may apply to the present case it will have to be further established that the
property was possessed by her at the time the Act came into force. It was the case of the
appellant that the estate of Veerappa was in actual possession of the second defendant and
not Veeravva at the relevant time. On behalf of the respondent it was urged that the words
"possessed by" had a wider meaning than actual physical possession, although physical
possession may be included in the expression. In the case of Gaddam Venkayamma v.
Gaddam Veerayya A.I.R. 1957 A P 280, Viswanatha Sastri, J., with whom Satyanarayana
Raju, J., agreed, expressed the opinion that "the word 'possessed' in section 14 refers to
possession on the date when the Act came into force. Of course, possession referred to in
section 14 need not be actual physical possession or personal occupation of the property
by the Hindu female but may be possession in law. The possession of a licensee, lessee or
a mortgagee from the female owner or the possession of a guardian or a trustee or an agent
of the female owner would be her possession for the purpose of section 14. The word
"possessed" is used in section 14 in a broad sense and in the context possess means the
state of owning or having in one's hands or power. It includes possession by receipt of
rents and profits." The learned Judges expressed the view that even if a trespasser were in
possession of the land belonging to a female owner, it might conceivably be regarded as
being in possession of the female owner, provided the trespasser had not perfected his
title. We do not think that it is necessary in the present case to go to the extent to which
the learned Judges went. It is sufficient to say that "possessed" in section 14 is used in a
broad sense and in the context means the state of owning or having in one's hand or
power. In the case of Gostha Behari v. Haridas Samanta MANU/WB/0147/1957 :
AIR1957Cal557 , P. N. Mookherjee, J., expressed his opinion as to the meaning of the
words "any property possessed by a female Hindu" in the following words :-
"The opening words in "property possessed by a female Hindu" obviously mean that to
come within the purview of the section the property must be in possession of the female
concerned at the date of the commencement of the Act. They clearly contemplate the
female's possession when the Act came into force. That possession might have been either
actual or constructive or in any form recognised by law, but unless the female Hindu,
whose limited estate in the disputed property is claimed to have been transformed into
absolute estate under this particular section, was at least in such possession, taking the
word "possession" in its widest connotation, when the Act came into force, the section
would not apply."
13. In our opinion, the view expressed above is the correct view as to how he words "any
property possessed by a female Hindu" should be interpreted. In the present case if the
adoption was invalid, the full owner of Veerappa's estate was his widow Veeravva and
even if it be assumed that the second defendant was in actual possession of the estate his
possession was merely permissive and Veeravva must be regarded as being in constructive
possession of it through the second defendant. In this situation, at the time when the Act
came into force, the property of Veerappa must be regard in law as being possessed by
Veeravva.
14. It was suggested that according to the will of Veerappa, Exbt. P-2(a), in the properties
mentioned in para. 4 of that will, Veeravva got only a restricted estate. The provisions of
para. 4 of the will, however, make it clear that they would come into force only if the
trustees mentioned in the will and Veeravva should disagree. No material was shown to us
that, in fact, the trustees and Veeravva had disagreed and that the provisions of para. 4
were given effect to. Paragraph 12 of the will also showed that if the adoption was invalid,
the property devolved on Veeravva as in intestacy. It is clear, therefore, that the provisions
of para. 4 are of no assistance to the appellant in applying the provisions of sub-section (2)
of section 14 of the Act. Reference was also made to the contents of the agreement, Exbt.
D-25, dated September 18, 1942, in this connection. It is clear, however, that by this
agreement no estate was conferred on Veeravva and she did not thereby acquire any
estate, much less a restricted estate. All that this document stated was that there was an
agreement between the guardians of the boy to be adopted and Veeravva that even if the
boy is adopted, Veeravva would remain in possession and enjoyment of her husband's
estate during her life time. In our opinion, there is no material on the record by which it
can reasonably be said that the provisions of sub-section (2) of section 14 of the Act
applied to the present case.
15. It was urged that the act of Veeravva in adopting the second defendant was to bring in
a stranger and this action of hers could be questioned by a reversioner, as any alienation
made by her, during her life time. Reference was made to section 42 of the Specific Relief
Act, Illustration (f). In our opinion, this is of no avail to the appellant, because Illustration
(f) obviously refers to a Hindu widow's estate and has not reference to a full owner. The
right of a reversioner as one of the heirs under section 42, Specific Relief Act, is limited to
the question of preserving the estate of a limited owner for the benefit of the entire body of
reversioners; but as against a full owner, the reversioner has no such right. In our opinion,
under the Act Veeravva becoming a full owner of her husband's estate, the suit could not
succeed and the appeal must accordingly fail.
16. In our opinion, the appellant's suit was not maintainable, having regard to the
provisions of section 14 of the Act, even if it be assumed that there was no valid adoption
of the second defendant. The appeal accordingly fails and is dismissed with costs.

V. Tulasamma v. V. Sesha Reddi, (1977) 3 SCC 99
Summary: A widow is entitled to maintenance out of the joint family estate of her
husband under Section 14.
Hon'ble Judges: A.C. Gupta, P.N. Bhagwati and S. Murtaza Fazal Ali, JJ.
JUDGMENT
P.N. Bhagwati, J.
1. We have had the advantage of reading the judgment prepared by our learned brother S.
Murtaza Fazal Ali and we agree with the conclusion reached by him in that judgment but
we would prefer to give our own reasons. The facts giving rise to the appeal are set out
clearly and succinctly in the judgment of our learned brother and we do not think it
necessary to reiterate them.
2. The short question that arise? for determination in this appeal is as to whether it is Sub-
section (1) or Sub-section (2) of Section 14 of the Hindu Succession Act. 1956 that applies
where property is given to a . Hindu female in lieu of maintenance under an instrument
which in so many terms restricts the nature of the interest given to her in the property If
Sub-section (1) applies, then the limitations on the nature of her interest are wiped out and
she becomes the full owner of the property, while on the other hand, if Sub-section (2)
governs such a case, her limited interest in the property is not enlarged and she continues
to have the restricted estate prescribed by the instrument. The question is of some
complexity and it has evoked wide diversity of judicial opinion not only amongst the
different High Courts but also within some of the High Courts themselves. It is indeed
unfortunate that though it became evident as far back as 1967 that Sub-sections (1) and (2)
of Section 14 were presenting serious difficulties of construction in cases where property
was received by a Hindu female in lieu of maintenance and the instrument granting such
property prescribed a restricted estate for her in the property and divergence of judicial
opinion was creating a situation which might well be described as chaotic, robbing the law
of that modicum of certainty which it must always 'possess in order to guide the affairs of
men, the legislature, for all these years did not care to step in to remove the constructional
dilemma facing the courts and adopted an attitude of indifference and inaction, untroubled
and unmoved by the large number of cases on this point encumbering the files of different
courts in the country, when by the simple expedient of an amendment, it could have
silenced judicial conflict and put an end to needless litigation. This is a classic instance of
a statutory provision which, by reason of its inapt draftsmanship, has created endless
confusion for litigants and proved a paradise for lawyers. It illustrates forcibly the need of
an authority or body to be set up by the Government or the Legislature which would
constantly keep in touch with the adjudicators authorities in the country as also with the
legal profession and immediately respond by making recommendations for suitable
amendments whenever it is found that a particular statutory provision is, by reason of
inapt language or unhappy draftsmanship, creating difficulty of construction or is
otherwise inadequate or defective or is not well conceived and is consequently counter-
productive of the result it was intended to achieve. if there is a close interaction between
the adjudicators wing of the State and a dynamic and ever-alert authority or body which
responds swiftly to the drawbacks and deficiencies in the law in action, much of the time
and money, which is at present expended in fruitless litigation, would be saved and law
would achieve a certain amount of clarity, certainty and simplicity which alone can make
it easily intelligible to the people.
3. Since the determination of the question in the appeal turns on the true interpretation to
be placed on Sub-section (2) read in the context of Sub-section (1) of Section 14 of the
Hindu Succession Act, 1956. it would be convenient at this stage to set out both the sub-
sections of that section which read as follows:
14 (1) Any property possessed by a female Hindu, whether acquired before or after the
commencement, of this Act, shall be held by her as full owner thereof and not as a limited
owner.
Explanation.-In this Sub-section, "property" includes both movable and immovable

prescription, or in any other manner what so ever , and also any such property held by her
as stridhana immediately before the commencement of this Act.
(2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of
award prescribe a restricted estate in such property.
Prior to the enactment of Section 14, the Hindu law. as it was then in operation, restricted
the nature of the interest of a Hindu female in property acquired by her and even as
regards the nature of this restricted interest, there was great diversity of doctrine on the
subject. The Legislature, by enacting Sub-section (1) of Section 14. intended.' as pointed
by this Court in S. S. Murna Lal v. S S. Raikumar, MANU/SC/0400/1962 :
AIR1962SC1493 "to convert the interest which a Hindu female has in property, however
restricted the nature of that interest under the Sastric Hindu law may be, into absolute
estate". This Court pointed out that the Hindu Succession Article 1956 "is a codifying
enactment. and has made far-reaching changes in the structure of the Hindu law of
inheritance, and succession. The Act confers upon Hindu females full rights of inheritance
and sweeps away the traditional limitations on her powers of disposition which were
regarded under the Hindu law as inherent in her estate". Sub-section (1) of Section 14, is
wide in its scope and ambit and uses language of great amplitude. It says that any property
possessed by a female Hindu, whether acquired before or after the commencement of the
Act, shall be held by her as full owner thereof and not as a limited owner. The words, "any
property" are, even without any amplification, large enough to cover any and every kind
of property, but in order to expand the reach and ambit of the section and make it all
comprehensive, the Legislature has enacted an explanation which says that property would
include "both movable and immovable property acquired by a female Hindu by
inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance,
or by gift from any person, whether a relative or not, before, at or after her marriage, or by
her own skill or exertion, or by purchase or by prescription, or in any other manner
whatsoever, and also any such property held by her as stridhana immediately before the
commencement" of the Act. Whatever be the kind of property, movable or immovable.
and whichever be the mode of aeouisition, it would be covered by Sub-section (1) of
Section 14, the object of the Legislature being to wipe out the disabilities from which a
Hindu female suffered in regard to ownership of property under the old Sastric law, to
abridge the stringent provisions against proprietary rights which were often regarded as
evidence of her perpetual tutelage and to recognize her status as an independent and
absolute owner of property. This Court has also in a series of decisions given a most
expansive interpretation to the language of Sub-section (1) of Section 14 with a view to
advancing the social purpose, of the legislation and as part of that process, construed the
words 'possessed of also in a broad sense and in their widest connotation. It was pointed
out by this Court in Gumalapura Taggina Matada Kotturuswami v. Setra Veeravva,
MANU/SC/0102/1958 : AIR1959SC577 that the words 'possessed of mean "the state of
owning or having in one's hand or power". It need not be actual or physical possession or
personal occupation of the property by the Hindu female, but may be possession in law. It
may be actual or constructive or in any form recognized by law. Elaborating the concept,
this Court pointed out in Mangal Singh v. Rattno, AIR 1967 SC 1786 that the section
covers all cases of property owned by a female Hindu although she may not be in actual,
physical or constructive possession of the property, provided of course, that she has not
parted with her rights and is capable of obtaining possession of the property. It will,
therefore, be seen that Sub-section (1) of Section 14 is large in its amplitude and covers
every kind of acquisition of property by a female Hindu Including acquisition in lieu of
maintenance and where such property was possessed by her at the date of commencement
of the Act - or was subsequently acquired and possessed, she would become the full owner
of the property.
4. Now, Sub-section (2) of Section 14 provides that nothing contained in Sub-section (1)
shall apply to any property acquired by way of gift or under a will or any other instrument
or under a decree or order of a civil court or under an a Ward where the terms of the gift,
will or other instrument or the decree, order or award prescribe a restricted estate in such
property. This provision is more in the nature of a proviso or exception to Sub-section (1)
and it was regarded as such by this Court in Badri Pershad v. Smt. Kanso Devi
MANU/SC/0293/1969 : [1970]2SCR95 . It excepts certain kinds of acquisition of
property by a Hindu female from the operation of Sub-section (1) and being in the nature
of an exception to a provision which is calculated to achieve a social purpose by bringing
about change in the social and economic position of women in Hindu society, it must be
construed strictly so as to impinge as little as possible on the broad sweep of the
ameliorative provision contained in Sub-section (1). It cannot be interpreted in a manner
which would rob Sub-section (1) of its efficacy and deprive a Hindu female of the
protection sought to be given to her by Sub-section (1). The language of Sub-section (2) is
apparently wide to include acquisition of property by a Hindu female under an instrument
or a decree or order or award where the instrument, decree, order or award prescribes a
restricted estate for her in the property and this would apparently cover a case where
property is given to a Hindu female at a partition or in lieu of maintenance and the
instrument, decree, order or award giving such property prescribes limited interest for her
in the property. But that would virtually emasculate Sub-section (1), for in that event, a
large number of cases where property is given to a Hindu female at a partition or in lieu of
maintenance under an instrument, order or award would be excluded from the operation of
the beneficent provision enacted in Sub-section (1), since in most of such cases, where
property is allotted to the Hindu female prior to the enactment of the Act, there would be a
provision, in consonance with the old Sastric law then prevailing, prescribing limited
interest in the property and where property is given to the Hindu female subsequent to the
enactment of the Act, it would be the easiest thing for the dominant male to provide that
the Hindu female shall have only a restricted interest in the property and thus make a
mockery of Sub-section (1), The Explanation to Sub-section (1) which includes within the
scope of that Sub-section property acquired by a female Hindu at a partition or in lieu of
maintenance would also be rendered meaningless, because there would hardly be a few
cases where the instrument, decree, order or award giving property to a Hindu female at a
partition or in lieu of maintenance would not contain a provision pre-scribing restricted
estate in the property. The social purpose of the law would be frustrated and the reformist
zeal underlying the statutory provision would be chilled. That surely could never have
been the intention of the Legislature in enacting Sub-section (2). It is an elementary rule of
construction that no provision of a statute should be construed in isolation but it should be
construed with reference to the context and in the light of other provisions of the statute so
as, as far as possible, to make a consistent enactment of the whole statute. Sub-section (2)
must, therefore, be read in the context of Sub-section (1) so as to leave as large a scope for
operation as possible to Sub-section (1) and so read, it must be confined to cases where
property is acquired by a female Hindu for the first time as a grant without any pre-
existing right, under a gift, will, instrument, decree, order or award, the terms of which
prescribe a restricted estate in the property. This constructional approach finds support in
the decision in Badri Prasad's case (supra) where this Court observed that Sub-section (2)
"can come into operation only if acquisition in any of the methods enacted therein is made
for the first time without there being any pre-existing right in the female Hindu who is in
possession of the property". It may also be noted that when the Hindu Succession Bill
1954, which ultimately culminated into the Act, was referred to a Joint Committee of the
Rajya Sabha, Clause. 18(2) of the Draft Bill, corresponding to the present Sub-section (2)
of Section 14, referred only to acquisition of property by a Hindu female under gift or will
and it was subsequently that the other modes of acquisition were added so as to include
acquisition of property under an instrument. decree, order or award. This circumstance
would also seem to indicate that the legislative intendment was that Sub-section (2) should
be applicable, only to cases where acquisition of property is made by a Hindu female for
the first time without any pre-existing right - a kind of acquisition akin to one under gift or
will. Where, however, property is acquired by a Hindu female at a partition or in lieu of
right of maintenance, it is in virtue of a pre-existing right and such an acquisition would
not be within the scope and ambit of Sub-section (2), even if the instrument, decree, order
or award allotting the property (prescribes a restricted estate in the property.
5. This line of approach in the construction of Sub-section (2) of Section 14 is amply

borne out by the trend of judicial decisions in this Court. We may in this connection refer
to the decision in Badri Parsad's case MANU/SC/0293/1969 : [1970]2SCR95 . The facts
in that case were that one Gajju Mal owning self-acquired properties died in 1947 leaving
five sons and a widow. On August 5, 1950, one Tulsi Ram Seth was appointed by the
parties as an arbitrator for resolving certain difference which had arisen relating to
partition of the properties left by Gaju Mal. The arbitrator made his award on October 31,
1950 and under Clause 6 of the award, the widow was awarded certain properties and it
was expressly stated in the award that she would have a widow's estate in the properties
awarded to her. While the widow was in possession of the properties, the Act came into
force and the question arose whether on the coming into force of the Act, she became full
owner of the properties under Sub-section (1) or her estate in the properties remained a
restricted one under Sub-section (2) of Section 14. This Court held that although the award
gave a restricted estate to the widow in the properties allotted to her, it was Sub-section (1)
which applied and not Sub-section (2). because inter alia the properties given to her under
the award were on the basis of a pre-existing right which she had as an heir of her husband
under the Hindu Women's Rights to Property Act, 1937 and not as a new grant made for
the first time. So also in Nirmal Chand-. v. Vidya Wanti (dead) by. her legal
representatives, C. A. No. 609 of 1965, D/- 21-1-1969 (SC) there was a regular partition
deed made on December 3, 1945 between Amin Chand, a coparcener and Subhrai Bai. the
widow of a deceased coparcener, under which a certain property was allotted to Subhrai
Bai and it was specifically provided in the partition deed that Subhrai Bai would be
entitled only to the user of the property and she would have no right to alienate it in any
manner but would only have a life interest. Subhrai Bai died in 1957 subsequent to the
coming into force of the Act after making a will bequeathing the property in favour of her
daughter Vidyawati. The right of Subhrai Bai to bequeath the property by will was
challenged on the ground that she had only a limited interest in the property and her case
was covered by Sub-section (2) and not Sub-section (1). This contention was negatives
and it was held by this Court that though it was true that the instrument of partition
prescribed only a limited interest for Subhrai Bai in the property, that was in recognition
of the legal position which then prevailed and hence it did not bring her case within the
exception contained in Sub-section (2) of Section 14. This Court observed:
If Subhrai Bai was entitled to a share in her husband's properties then the suit properties
must be held to have been allotted to her in accordance with law. As the law then stood
she had only a life interest in the properties taken by her. Therefore the recital in the deed
in question that she would have only a life interest in the properties allotted to her share is
merely recording the true legal position. Hence it is not possible to conclude that the
properties in question were given to her subject to the condition of her enjoying it for the
lifetime. Therefore the trial Court as well as the first Appellate Court were right in holding
that the facts of the case do not fall within Section 14(2) of the Hindu Succession Act,
1956.
It will be seen from these observations that even though the property was acquired by
Subhrai Bai under the instrument of partition, which gave only a limited interest to her in
the property this Court held that the caste fell within Sub-section (1) and not Sub-section
(2). The reason obviously was that the- property was given to Subhrai Bai in virtue of a
pre-existing right inhering in her and when the instrument of partition provided that she
would only have a limited interest in the property, it merely provided for something which
even otherwise would have been the legal position under the law as it then stood. It is only
when property is acquired by a Hindu female as a new grant for the-first time and the
instrument, decree, order or award giving the property prescribes the terms on which it is
to be held by the Hindu female, namely, as a restricted owner, that Sub-section (2) comes
into play and excludes the applicability of Sub-section (1). The object of Sub-section (2),
as pointed out by this Court in Badri Parsad's case (supra) while quoting with approval the
observations made by the Madras High Court m Rarigaswami Naicker v. Chinnammal
MANU/TN/0263/1963 : AIR1964Mad387 is 'only to remove the disability of women
imposed by law and not to interfere with contracts, grants or decrees etc. by virtue of
which a women's right was restricted" and, therefore, where property is acquired by a
Hindu female under the instrument in virtue of a pre-existing right, such as a right to
obtain property on partition or a right to maintenance and under the law as it stood prior to
the enactment of the Act, she would have no more than limited interest in the property, a
provision in the instrument giving her limited interest in the property would be merely by
way of record or recognition of the true legal position and the restriction on her interest
being a "disability imposed by law" would be wiped out and her limited interest would be
enlarged under Sub-section (1). But where property is acquired by a Hindu female under
an instrument for the first time without any pre-existing right solely by virtue of the
instrument, she must hold it on the terms on which it is given to her and if what is given to
her is a restricted estate, it would not be enlarged by reason of Sub-section (2). The
controversy before us, therefore boils down to the narrow question whether in the present
case the proper ties were acquired by the appellant under the compromise in virtue of a
pre-existing right or they were acquired for the first time as a grant owing its origin to the
compromise alone and to nothing else.
6. Now. let us consider how the properties in question came to be acquired by the
appellant under the compromise. The appellant claimed maintenance out of the joint
family properties in the hands of the respondent who was her deceased husband's brother.
The claim was decreed in favour of the appellant and in execution of the decree for
maintenance, the compromise was arrived at between the parties allotting the properties in
question to the appellant for her maintenance and giving her limited interest in such
properties. Since the properties were allotted to the appellant in lieu of her claim for
maintenance, it becomes necessary to consider the nature of the right which a Hindu
widow has to be maintained out of joint family estate. It is settled law that a widow is
entitled to maintenance out of her deceased husband's estate, irrespective whether that
estate may be in the hands of his male issue or it may be in the hands of his coparceners.
The joint family" estate in which her deceased husband had a share is liable for her
maintenance and she has a right to be maintained out of the joint family properties and
though, as pointed out by this Court in Rani Bai v. Yadunandan Ram
MANU/SC/0295/1969 : [1969]3SCR789 her claim for maintenance is not a charge upon
any joint family property until she has got her maintenance determined and made a
specific charge either by agreement or a decree or order of a court, her right is "not liable
to be defeated except by transfer, to a bona fide purchaser for value without notice of her
claim or even with notice of the claim unless the transfer was made with the intention of
defeating her right." The widow can for the purpose of her maintenance follow the joint
family property "into the hands of any one who takes it as a volunteer or with notice of her
having set up a claim for. maintenance". The courts have even gone to the length of taking
the view that where a widow, is in possession of any specific property for the purpose of
her maintenance, a purchaser buying with notice of her claim is not entitled to possession
of that property without first securing proper maintenance for her. Vide Rachawa v.
Shivayogapa ILR (1894) 18 Bom 679 cited with approval in Ranibai's case (supra). It is,
therefore, clear that under the Sastric Hindu Law a widow has a right to be maintained out
of joint family property and this right would ripen into a charge if the widow takes the
necessary steps for having her maintenance ascertained and specifically charged on the
joint family property and even if no specific charge is created, this right would be
enforceable against joint family property in the hands of a volunteer or a purchaser taking
it with notice of her claim. The right of the widow to be maintained is of course not a jus
in rem since it does not give her any interest in the joint family property but it is certainly
jus ad rem. i.e. , a right against the joint family property. Therefore, when specific
property is allotted to the widow in lieu of her claim for maintenance, the allotment would
be in satisfaction of her jus ad rem, namely, the right to be maintained out of the joint
family property. It would not be a grant for the first time without any pre-existing right in
the widow. The widow would be getting the property in virtue of her pre-existing right,
the instrument giving the property being merely a document effectuating such pre-existing
right and not making a grant of the property to her for the first time without any
antecedent right or title. There is also another consideration which is very relevant to this
issue and it is that, even if the instrument were silent as to the nature of the interest given
to the widow in the property and did not. in so many terms, prescribe that she would have
a limited interest, she would have no more than a limited interest in the property under the
Hindu law as it stood prior to the enactment of the Act and hence a provision in the
instrument prescribing that she would have only a limited interest in the property. would
be. to quote the words of this Court in Nirmal Chand's case, C. A. No. 609 of 1965, D/-
21-1-1969 (SC) (supra) "merely recording the true legal position" and that would not
attract the applicability of Sub-section (2) but would be governed by Sub-section (1) of
Section 14. The conclusion is, therefore, inescapable that where property is allotted; to a
widow under an instrument, decree, order or award (which) prescribes a restricted estate
for her in the property and Sub-section (2) of Section 14 would have no application in
such a case.
7. We find that there are several High Courts which have taken the same view which we
are taking in the present case. We may mention only a few of those decisions, namely. B.
B. Patil v. Gangabai MANU/MH/0100/1972 : AIR1972Bom16 Siimeshwar Mishra v.
Swami Nath Tiwari. MANU/BH/0063/1970 : AIR1970Pat348 . Gadam Reddayya v.
Venkataraju MANU/AP/0135/1965 : AIR1965AP66 : Thatha Gurunadham v. Smt T.
Navaneethamma. MANU/TN/0308/1967 : AIR1967Mad429 . H. Venkanagouda v.
Hanamangouda. AIR 1972 Mys 286; Smt. Sharbati Devi v. Hiralal AIR 1964 Punj 114
Sasadhar Chandra Day v. Smt. Tara Sundari Dasi, MANU/WB/0093/1962 :
AIR1962Cal438 . Saraswathi Ammal v. Anantha Shenai. AIR 1966 Ker 66 and Kunji
Thommen v. Meenakshi. MANU/KE/0046/1970 : AIR1970Ker284 It is not necessary to
refer to these decisions since we have ourselves discussed the question of construction of
Sub-sections (I) and (2) of Section 14 on principle and pointed out what in our view is the
correct construction of these provisions. We may only mention that the judgment of Pale-
kar. J.. as he then was, in B. B. Patil v. Gangabai (supra) is a well-reasoned judgment and
it. has our full approval. The contrary view taken in Gurunadham v. Sundararajulu,
MANU/TN/0308/1967 : AIR1967Mad429 Santhanam v. Subramania. ILR (1967) Mad
68: S. Kachapalava Gurukkal v. V. Subramania Gurukkal. AIR 1972 Mad 279: Shiva
Pujan Rai v. Jamuna Missir. ILR (1968) Pat 1118 Gopisetti Kondaiah v. G Subbarayudu.
ILR (1968) A P 621: Ram Jag Misir v. Director of Consolidation. U.P.
MANU/UP/0033/1975 : AIR1975All151 and Ajab Singh v. Ram Singh. AIR 1959 J & K
92 does not. in our opinion, represent the correct law on the subject and these cases must
be held to be wrongly decided.
8. In the circumstances, -we reach the conclusion that since in the present case the
properties in question were acquired by the appellant under the compromise in lieu or
satisfaction of her right of maintenance, it is Sub-section (1) and not Sub-section (2) of
Section 14 which would be applicable and hence the appellant must be deemed to have
become full owner of the properties notwithstanding that the compromise prescribed a
limited interest for her in the properties. We accordingly allow the appeal, set aside the
judgment and decree of the High Court and restore that of the District Judge, Nellore. The
result is that the suit will stand dismissed but with no order as to costs.
S. Murtaza Fazal Ali, J.
9. This is a defendant's appeal by special leave against the judgment of the High Court of
Andhra Pradesh dated November 22, 1967 and arises in the following circumstances.
10. Venkatasubba Reddy, husband of appellant No. 1 Vaddeboyina Tulasamma - here in
after to be referred to as 'Tulasamma' - died in the year 1931 in a state of joint ness with
his step brother V. Sesha Reddy and left behind Tulasamma as his widow. On October 11,
1944 the appellant Tulasamma filed a petition for maintenance in forma pauperis against
the respondent in the Court of the District Munsif, Nellore. This application was set expert
on January 13, 1945 but subsequently the petition was registered as a suit and an expert
decree was passed against the respondent on June 29, 1946. On October 1, 1946 the
respondent filed an interlocutory application for recording a compromise alleged to have
been arrived at between the parties out of Court on April 9. 1945. The appellant
Tulasamma opposed this application which was ultimately dismissed on October 16, 1946.
An appeal filed by the respondent to the District Judge. Nellore was also dismissed.
Thereafter Tulasamma put the decree in execution and at the execution stage the parties
appear to have arrived at a settlement out of Court which was certified by the Executing
Court on July 30. 1949 under Order XXI. Rule 2 of the CPC. Under the compromise the
appellant Tulasamma was allotted the Schedule properties, but was to enjoy only a limited
interest therein with no power of alienation at all. According to the terms of the
compromise the properties were to revert to the plaintiff after the death of Tulasamma.
Subsequently Tulasamma continued to remain in possession of the properties even after
coming into force of the Hindu Succession Act, 1956 - hereinafter to be referred to as 'the
1956 Act or 'the Act of 1956" By two registered deeds dated April 12, 1960 and' May 25,
1961, the appellant leased out some of the proper-ties to defendants 2 & 3 by the first deed
and sold some of the properties to defendant 4 by the second deed. The
plaintiff/respondent filed a suit on July 31, 1961 before the District Munsif f. Nellore for a
declaration that the alienations made by the widow Tulasamma were not binding on the
plaintiff and could remain valid only till the lifetime of the widow. The basis of the action
filed by the plaintiff was that as the appellant Tulasamma had got a restricted estate only
under the terms of the compromise her interest could not be enlarged into an absolute
interest by the provisions of the 1956 Act in view of Section 14(2) of the said Act. The
suit was contested by the appellant Tulasamma who denied the allegations made in the
plaint and averred that by virtue of the provisions of the 1956 Act she had become the full
owner of the properties with absolute right of alienation and the respondent had no locus
standby to file the present suit. The learned Munsiff decreed the suit of the plaintiff
holding that the appellant Tulasamma got merely a limited interest in the properties which
could be enjoyed during her lifetime and that the alienations were not binding on the
reversionary. Tulasamma then filed an appeal before the District Judge. Nellore, who
reversed the finding of the trial Court allowed the appeal and dismissed the plaintiff's suit
holding that the appellant Tulasamma had acquired an absolute interest in the properties
by virtue of the provisions of the 1956 Act. The learned Judge further held that Sub-
section (2) of Section 14 had no application to the present case, because the compromise
was an instrument in recognition of a pre-existing right. The plaintiff respondent went up
in second appeal to the High Court against the judgment of the District Judge. The plea of
the plaintiff/respondent appears to have found favour with the High Court which held that
the case of the appellant was clearly covered by Section 14(2) of the Hindu Succession
Act and as the compromise was an instrument as contemplated by Section 14(2) of the
1956 Act, Tulasamma could not get an absolute interest under Section 14(1) of the Act.
The High Court further held that by virtue of the compromise the appellant Tulasamma
got title to the properties for the first time and it was not a question of recognizing a pre-
existing right, which she had none in view of the fact that her husband had died even
before the Hindu Women's Right to Property Act, 1937. We might further add that the
facts narrated above have not been disputed by counsel for the parties.
11. The appeal has been argued only on the substantial questions of law which turn upon
the interpretation of Sub-section (1) and (2) of Section 14 of the Hindu Succession Act,
1956. It is common ground that in this case as also in the other connected appeals, the
properties in suit were allotted under a compromise or an instrument in lieu of
maintenance. It is also admitted that the appellant Tulasamma was in possession of the
properties at the time when the 1956 Act came into force. Finally it is also not disputed
that the compromise did purport to confer only a limited interest on the widow restricting
completely her power of alienation. We have now to apply the law on the facts mentioned
above. Similar points were involved in the other two appeals Nos. 135 of 1973 and 126 of
1972. We have heard all the three appeals together and in all these appeals counsel for the
parties have confined their arguments only to the questions of law without disputing the
findings of fact arrived at by the Courts below.
12. Thus the two points that fall for determination in this appeal may be stated thus:
(1)Whether the instrument of compromise under which the properties were given to the
appellant Tulasamma before the 1956 Act in lieu of maintenance falls within Section
14(1) or is covered by Section 14(2) of the 1956 Act: and
(2) Whether a Hindu widow has a right to property in lieu of her maintenance, and if such
a right is conferred on her subsequently by way of maintenance it would amount to mere
recognition of a pre-existing right or a conferment of a new title so as to fall squarely
within Section 14(2) of the 1956 Act.
13. There appears to be serious divergence of judicial opinion on the subject and the High
Courts have taken contrary views on this point. Some High Courts, particularly, the
Bombay, Punjab, Calcutta and Patna have veered round to the view that a right of
maintenance claimed by a Hindu widow is a pre-existing right and any instrument or
document or transaction by which the properties are allotted to the widow in lieu of her
maintenance would only be in recognition of a pre-existing right and would not confer any
new title on the widow. Following this line of reasoning the aforesaid High Courts have
held that the properties allotted to the Hindu widow even though they conferred a limited
interest would fall clearly within the ambit of Section 14(1) of the 1956 Act by virtue of
which the limited interest would be enlarged into an absolute interest on the coming into
force of the 1956 Act. On the other hand the Orissa, Allahabad, Madras and Andhra
Pradesh High Courts have taken a contrary view and have held that as the Hindu widow's
right to maintenance is not a right to property, the property allotted to her in lieu of
maintenance confers on her a right or title to the property for the first time and therefore
such conferment is protected by Section 14(2) of the 1956 Act and is not covered by
Section 14(1). Unfortunately, however, there is no decision of this Court which is directly
in point, though there are some decisions which tend to support the view taken by the
Bombay High Court.
14. Before, however, resolving this important dispute it may be necessary to consider the
real legal nature of the incidence of a Hindu widow's right to maintenance. In order to
determine this factor we have to look to the concept of a Hindu marriage. Under the
Shastric Hindu Law, a marriage, unlike a marriage under the Mohammadan Law which is
purely contractual in nature, is a sacrament - a religious ceremony which results in a
sacred and a holy union of man and wife by virtue of which the wife is completely
transplanted in the household of her husband and takes a new birth as a partner of her
husband becoming a part and parcel of the body of the husband. To a Hindu wife her
husband is her God and her life becomes one of selfless service and unstinted devotion
and profound dedication to her husband. She not only shares the life and love, the joys and
sorrows, the troubles and tribulations of her husband but becomes an integral part of her
husband's life and activities. Colebrooke in his book 'Digest of Hindu Law' Vol. II
describes the status of wife at p. 158 thus:
A wife is considered as half the body of her husband, equally sharing the fruit of pure and
impure acts: whether she ascend the pile after him, or survive for the benefit of her
husband, she is a faithful wife". This being the position after marriage, it is manifest that
the law enjoins a corresponding duty on the husband to maintain his wife and look after
her comforts and to provide her food and raiment. It is well settled that under the Hindu
Law the husband has got a personal obligation to maintain his wife and if he is possessed
of properties then his wife is entitled as of right to be maintained out of such properties.
The claim of a Hindu widow to be maintained is not an empty formality which is to be
exercised as a matter of concession or indulgence, grace or gratis or generosity but is a
valuable spiritual and moral right which flows from the spiritual and temporal relationship
of the husband and wife. As the wife is in a sense a part of the body of her husband, she
becomes co-owner of the property of her husband though in a subordinate sense. Although
the right of maintenance does not per se create a legal charge on the property of her
husband, yet the wife can enforce this right by moving the Court for passing a decree for
maintenance by creating a charge. This right is available only so long as the wife
continues to be chaste. Thus the position is that the right of maintenance may amount to a
legal charge if such a charge is created either by an agreement between the parties or by a
decree.
15. There are a number of authorities which have taken the view that even if the property
is transferred and the transferee takes the property with notice of the right of the widow to
be maintained out of the property, the purchaser takes the obligation to maintain the
widow out of the property purchased and the wife or widow can follow the property in the
hands of the purchaser for the limited purpose of her maintenance. We shall, however,
deal with these authorities a little later.
16. Colebrooke in his "Digest of Hindu Law', Vol. II, quotes the Mahabharata at p. 121
thus:
Where females are honoured, there the deities are pleased; but where they are unhonoured,
there all religious acts become fruitless.
This clearly illustrates the high position which is bestowed on Hindu women by the
Shastric Law. Again Colebrooke in this book Vol. II at p. 123, while describing the
circumstances under which the maintenance is to be given to the wife, Quotes Manu thus.
MANU:- Should a man have business abroad, let him assure a fit maintenance to his wife,
and then reside for a time in a foreign coon-try; since a wife, even though virtuous, may be
tempted to act amiss, if she be distressed by want of sub-sistence:
While her husband, having settled her maintenance, resides abroad, let her continue firm
in religious austerities; bat if he leave no support, let her subsist by spinning and other
blameless arts.
This extract clearly shows that there is a legal obligation on the part of the husband to
make arrangements for his wife's due maintenance even if be goes abroad for business
purposes. Colebrooke again quotes Yajnvawalkya at p. 243 of his book Vol. II thus:
When the father makes an equal partition among his sons, his wives must have equal
shares with them, if they have received no wealth either from their lord or from his father.
If he makes an equal partition among his sons by his own choice, be must give equal
shares to such of his wives -also as have no male issue.
This shows that when a partition is effected, the Hindu Law enjoins that the wife must get
an equal share with the sons. Thus reinforcing the important character of the right of
maintenance which a Hindu wife or widow possesses under the Hindu Law.
17. Similarly Golapchandra Sarkar Sastri dealing with the nature and incidents of the
Hindu widow's right to maintenance observes in his treatise 'Hindu Law' at p. 533 thus:
When the husband is alive; he is personally liable for the wife's maintenance, which is also
a legal charge upon his property: this charge being a legal incident of her marital co-
ownership in all her husband's property.... But after his death, his widow's right of
maintenance becomes limited to his estate, which, when it passes to any other heir, is
charged with the same.... There cannot be any doubt that under Hindu law the wife's or
widow's maintenance is a legal charge on the husband's estate: but the Courts appear to
hold, in consequence of the proper materials not being placed before them, that it is not so
by itself, but is merely a claim against the husband's heir, or an equitable charge on his
estate; hence the husband's debts are held to have priority, unless it is made a charge on
the property by a decree.
The view of the author appears to be that the Courts hold that the right of maintenance of a
widow does not amount to a legal charge and this is so because proper materials were not
placed before the Courts. In other words, the author seems to indicate that the original
Hindu Law contained clear provisions that the right of maintenance amounts to a charge
on the property of her husband and the obligation runs with the property so that any
person who inherits the property also takes upon the obligation to maintain the widow.
Sastri quotes from the original texts various extracts regarding the nature and extent of the
right of maintenance of the Hindu woman some of which may be extracted thus:
The support of the group of persons who should be maintained, is the approved means of
attaining heaven, but hell is the man's portion if they suffer: therefore he should care-fully
maintain them.
The father, the mother, the Guru (an elderly relation worthy of respect) a wife, an
offspring, poor dependants, a guest, and a religious mendicant are declared to be the group
of persons who are to be maintained.- Manu, cited in Srikrishna's commentary on the
Dayabhaga, 11, 28.
It is declared by Manu that the aged mother and father, the chaste wife, and an infant child
must be maintained even by doing a hundred misdeeds.- Manu cited in the Mitakshara
while dealing with gifts.
The last extract clearly shows the imperative nature of the duty imposed on the owner of
the property to maintain wife, aged mother, father etc. even at the cost of perpetrating a
hundred misdeeds. Similarly Sastri in his book quotes Yajnavalkya at p. 523 thus:
Property other than what is required for the maintenance of the family may be given. The
learned author highlights the importance of the right of maintenance as being a charge on
the property of the husband and observes as follows:
The ancestral immovable property is the hereditary source of maintenance of the members
of the family, and the same is charged with the liability of supporting its members, all of
whom acquire a right to such property from the moment they become members of the
family, by virtue of which they are at least entitled to maintenance out of the same. Such
property cannot be sold or given away except for the support of the family: a small portion
of the same may be alienated, if not incompatible with the support of the family.
There is no difference between the two schools as regards the view that the ancestral
property is charged with the maintenance of the members of the family, and that no
alienation can be made, which will prejudicially affect the support of the group of persons
who ought to be maintained. Hence heirs are bound to maintain those whom the last
holder was bound to maintain.
The author further points out that under the Mitakshara law the daughter-in-law does, with
her husband, acquire a right to the ancestral property, since her marriage, but she becomes
her husband's co-owner in a subordinate sense, and the principal legal incident of this
ownership is the right to maintenance, which cannot be defeated by gift or devise made by
the holder of such property. Similar observations have been made by the learned author at
p. 528 of the book which may be extracted thus:
According to both the schools, the lawfully wedded wife acquires from the moment of her
marriage a right to the property belonging to the husband at the time and also to any
popery that may subsequently be acquired by him. so that she becomes a co-owner of the
husband, though her right is not co-equal to that of the husband, but a subordinate one.
owing to her disability founded on her status of perpetual or life long tutelage or
dependence.
...
This right of the wife to maintenance from her husband is not lost even if the husband
renounce Hinduism.
This right subsists even after the husband's death although her husband's right as
distinguished from hers may pass by survivorship or by succession to sons or even to
collaterals; these simply step into the position of her husband, and she is required by
Hindu law to live under their guardianship after her husband's death.
Finally it is pointed out by the learned author at p. 529 of the Book that the right which a
woman acquires to her husband's property subsists even after his death and observed thus:
According to both the schools, the right which a woman acquires to her husband's
property subsists after his death, whether his interest passes by succession or by
survivorship to the male issue or any other person, and that this right does not depend
upon the widow's not possessing other means of support.
18. Summarising the nature of the liability of the husband to maintain his wife, the learned
author observed as follows at p. 533 of his Book:
When the husband is alive, he is personally liable for the wife's maintenance, which is also
a legal charge upon his property, this charge being a legal incident of her marital co-
ownership in all her husband's property....But after his death,his widow's right of
maintenance becomes limited to his estate, which, when it passes to any other heir, is
charged with the same.... There cannot be any doubt that under Hindu law the wife's or
widow's maintenance is a legal charge on the husband's estate: but the Courts appear to
hold, in consequence of the proper materials not being placed before them, that it is not so
by itself, but is merely a claim against the husband's heir, or an equitable charge on his
estate: hence the husband's debts are held to have priority, unless it is made a charge on
the property by a decree.
To sum up. therefore, according to Sastri's Interpretation of Shastric Hindu Law the right
to maintenance possessed by a Hindu widow is a very important right which amounts to a
charge on the property of her husband which continues to the successor of the property
and the wife is regarded as a sort of co-owner of the husband's property though in a
subordinate sense, i. e. the wife has no dominion over the property.
19. Similarly Mayne in his "Treatise on Hindu Law & Usage", 11th Edn., has traced the
history and origin of the right of maintenance of a Hindu woman which according to him
arises from the theory of an undivided family where the head of the family is bound to
maintain the members including their wives and their children. The learned author
observes thus: (p. 813)
The importance and extent of the right of maintenance necessarily arises from the theory
of an undivided family. The head of such a family is bound to maintain its members, their
wives and their children, to perform their ceremonies and to defray the expenses of their
marriages.
Again at p. 816 para 684 the author stresses the fact that the maintenance of a wife is a
matter of personal obligation on the part of the husband and observes thus:
The maintenance of a wife, aged parents and a minor son is a matter of personal obligation
arising from the very existence of the relationship and quite independent of the possession
of any properly, ancestral or acquired.... 'It is declared by Manu that the aged mother and
father, the chaste wife and an infant child must be maintained even by doing a hundred
misdeeds.
Again it has been observed at page 818 para 687:
The maintenance of a wife by her husband is, of course, a matter of personal obligation,
which attaches from the moment of marriage.
The author points out at p. 821 paragraph 689 that even after the coming into force of the
Hindu Women's Right to Property Act, 1937 which confers upon the widow a right of
succession in respect of the non-agricultural property, she is still entitled to maintenance
from the family property. The author observes thus:
It cannot, therefore, be said that the reason of the right has ceased to exist and the right is
gone. It was accordingly held that the widow of a deceased coparcener is still entitled to
maintenance notwithstanding her right under the Act to a share in the non-agricultural part
of the family estate.
Furthermore, the author cites the passage of Narada cited in Smritichandnka regarding
which there is no dispute. The saying runs thus:
Whichever wife (patni) becomes a widow and continues virtuous, she is entitled to be
provided with food and raimant.
At p 822 para. 690 the author points out that the right of a widow to be maintained is taken
over even by the heirs of the husband who succeed to his property either by inheritance or
by survivorship. In this connection the following observations are made:
She is entitled to be maintained where her husband's separate property is taken by his male
issue. Where, at the time of his death, he was a coparcener she is entitled to maintenance
as against those who take her husband's share by survivorship.
The Hindu Law is so zealous in guarding the interests of Hindu women that the obligation
for maintaining the Hindu woman falls even on the King when he takes the estate by
escheat or by forfeiture.
20. Similarly Mulla in his book "Hindu Law", 14th Edn., describes the incidents and
characteristics of Hindu wife's right to maintenance and observes thus at p. 597:
A wife is entitled to be maintained by her husband, whether he possesses property or not.

When a man with his eyes open marries a girl accustomed to a certain style of living, he
undertakes the obligation of maintaining her in that style. The maintenance of a wife by
her husband is a matter of personal obligation arising from the very existence of the
relationship, and quite independent of the possession by the husband of any property,
ancestral or self-acquired.
We might further mention that the Hindu women's right to maintenance finally received
statutory recognition and the entire law on the subject was consolidated and codified by
the Hindu Married Women's Right to Separate Maintenance and Residence Act. 1946 -
hereinafter to be referred to as 'the Act of 1946' - which came into force on April 23, 1946.
Thus there appears to be complete unanimity of the various schools of Hindu Law on the
important incidents and indicia of the Hindu women's right to maintenance which has now
received statutory recognition and which only shows that the right to maintenance though
not an indefeasible right to property is undoubtedly a pre-existing right. We shall now
refer to some of the authorities which have dealt with this aspect of the matter.
21. In Narayan Rao Ramchandra Pant v. Ramabai (1878) 6 I A 114 the Judicial
Committee pointed out that the widow's right to maintenance arises from the common law
which developed from time to time. Justice West of the Bombay High Court appears to
have entered into a very elaborate discussion of the entire law on the subject in Lakshman
Ramchandra v. Satyabha-mabai. ILR (1877) 2 Bom 494 and observed as follows.
These several authorities, no doubt. afford in combination, a strong support to the

proposition that a widow's maintenance, especially as against the sons, is a charge on the
estate, a right in re in the fullest sense adhering to the property, into whatever hands it may
pass.
These observations were reiterated in a later case in Narbadabai v. Mahadeo Narayan. ILR
(1880) 5 Bom 99. The observations of West. J.. in Lakshman Ramchandra Joshi's case
were fully approved by the Judicial Committee in Mst. Dan Kuer v. Mst. Sarla Devi.
MANU/PR/0030/1946 where it was observed:
But apart from this circumstance, the judgment of West J., whose dissertations on Hindu
Law must al-ways command great esteem. contains an exposition of the law on this point
and the case is therefore rightly regarded as a leading authority on the question. In the
course of his judgment that learned Judge quotes with approval the remarks of Phear J.. in
srimati v. Kanailal Mitter. (1872) 8 Ben LR225 - that "as against one who has taken the
property as heir, the widow has a right to have a proper sum for her maintenance
ascertained and made a charge on the property in his hands. She may also doubtless,
follow the property for this purpose into the hands of anyone who takes it as a volunteer,
or with notice of her having set up a claim for maintenance against the heir" and that
"when the property passes into the hands of a bona fide purchaser without notice, it cannot
be affected by anything short of an already existing proprietary right, it cannot be subject
to that which is not already a specific charge, or which does not contain all the elements
necessary for its ripening into a specific charge.
Summarising the entire position the Privy Council enunciated the law thus:
The true rule of Hindu law in such matters would appear to be as follows:- Two
obligations confront a joint Hindu family. (1) The obligation to pay the debts (for instance,
of the father) binding on the family; and (2) the moral obligation to provide maintenance
to the widows of the family. The latter obligation would, under certain circumstances,
ripen into a legal obligation, as, for instance, when a charge is created on specific property
of the family either by agreement or a decree of the court: that, so long as neither of these
two obligations has taken the form of a charge on the family property, the obligation to
nay the binding debts will have precedence (as, for instance, in the course of the
administration of the estate) over mere claims of a female member's maintenance. but, if
either of these two obligations assumes the shape of a charge, it would take precedence
over the other.
In Pratapmull Agarwalla v. Dhanabati Bibi MANU/PR/0013/1936 the Judicial Committee

pointed out that while a mother may not be the owner of her share until partition is made
and has no pre-existing right with regard to the share in the property, but she has a pre-
existing right for maintenance. This Court also has made similar observations in a large
number of cases regarding the nature and extent of the Hindu women's right to
maintenance. In (sic) this Court, while dealing with a situation where a widow claimed the
right of maintenance but refused to hand over possession of the property until she secured
her proper maintenance, observed as follows:
It cannot be disputed that the appellant who is the widow of a predeceased son of Jangi
Jogi was entitled to receive maintenance so long as she did not remarry out of the estate of
her father-in-law. Although her claim for maintenance was not a charge upon the estate
until it had been fixed and specifically charged thereupon her right was not liable to be
defeated except by transfer to a bona fide purchaser for value without notice of a claim or
even with notice of a claim unless the transfer was made with the intention of defeating
her right. The courts in India have taken the view that where a widow is in possession of a
specific property for the purpose of her maintenance a purchaser buying with notice of her
claim is not entitled to possession of that property without first securing proper
maintenance for her: vide Rachawa v. Shivayagoappa. ILR (1894) 18 Bom 679.... In the
present case it is difficult to understand how the appellant could be deprived of the
possession of properties by a trespasser. Moreover she was presumably in possession of
these properties in lieu of her right of maintenance and could not be deprived of them even
by Jugli Bai without first securing proper maintenance for her out of the aforesaid
properties.
In Sheo Dyal v. Judoonath. (1868) 9 Suth WR 61 the Calcutta High Court stressed the fact
that although the widow may not be the owner of a share but she had a pre-existing right
of maintenance.
22. Elucidating the nature and extent of a right of a Hindu wife to maintenance, the
Calcutta High Court pointed out in Srinath Das v. Probodh Chunder Das. (1910) 11 Cal LJ
580 that the right of maintenance is really identified with the husband's proprietary right
though of a subordinate nature.
23. In Namangini Dasi v. Kedarnath Kundu Chowdhury ILR (1889)16 Cal 758 the Privy
Council held that if the estate refrained joint and undivided the maintenance of the mother
remained a charge on the whole estate and that any share that the widow took in the
property which was equal to the share of a son was really in lieu of maintenance for which
the estate was liable.
24. The position has been very succinctly stated and meticulously analyses by a decision
of the Madras High Court in K V Thangavelu v. The Court of Wards. Madras. where,
dealing with the entire history of the matter and relying on various original texts of the
Hindu jurists, the Madras High Court pointed out that a' cogent ground for preferring the
widow's claim is to be found in her qualified or subordinate co-ownership in the husband's
property declared by the Mitakshara. The Court referred to verse 52 of Vyavaharadhaya
(Chanter II) where the Mitakshara refers to Apestamba's Dharmasutra as follows:
From marriage arises also joint-ness (Sahatwam) in the holding of property

(dravyaparagraphestiu).
25. In an earlier case Sarojinidevi v. Subrahmanyam. the Madras High Court held that
even after the coming into force of the Hindu Women's Right to Property Act. 1937.
which did not apply to agricultural lands, the right of the Hindu widow to maintenance
stood intact and the widow was entitled to maintenance notwithstanding her right under
'he Act to a share in the non-agricultural part of the family estate.
To the same effect is an earlier decision of the Madras High Court in Jayanti, Subbiah v.
Alamelu Mangamma. ILR (1904) Mad 45 where the High Court pointed out that under the
Hindu Law the maintenance of a wife by her husband is a matter of personal obligation
arising from the very existence of her relationship and quite independent of the possession
by the husband of any property ancestral or self-acquired. We fully agree with this
exposition of the law which is supported by a large number of authorities as discussed
above.
26. In Vellawa v. Bhimangavda, ILR (1894)18 Bom 452 the Bombay High Court was of
the view that even the heir of the husband's property could not be allowed to recover
possession from the widow without first making proper arrangements for her maintenance.
This case was approved by this Court in Rani Bai's case MANU/SC/0295/1969 :
[1969]3SCR789 (supra).
27. Thus on a careful consideration and detailed analysis of the authorities mentioned
above and the Shastric Hindu Law on the subject. the following propositions emerge with
respect to the incidence and characteristics of a Hindu woman's right to maintenance:
(1) that a Hindu woman's right to maintenance is a personal obligation so far as the
husband is concerned. and it is his duty to maintain her even if he has no property. If the
husband has property then the right of the widow to maintenance becomes an equitable
charge on his property and any person who succeeds to the property carries with it the
legal obligation to maintain the widow;
(2) though the widow's right to maintenance is not a right to property but it is undoubtedly
a pre- existing right in property, i. e. it is a jus and rem not jus in rem and it can be
enforced by the widow who can get a charge created for her maintenance on the property
either by an agreement or by obtaining a decree from the civil court:
(3) that the right of maintenance is a matter of moment and is of such importance that even
if the joint property is sold and the purchaser has notice of the widow's right to
maintenance, the purchaser is legally bound to provide for her maintenance:
(4) that the right to maintenance is undoubtedly a pre-existing right which existed in the
Hindu Law long before the passing of the Act of 1937 or the Act of 1946. and is,
therefore, a pre-existing right:
(5) that the right to maintenance flows from the social and temporal relationship between
the husband and the wife by virtue of which the wife becomes a sort of co-owner in the
property of her husband, though her co ownership is of a subordinate nature: and
(6) that where a Hindu widow is in possession of the property of her husband, she is
entitled to retain the possession in lieu of her maintenance unless the person who succeeds
to property or purchases the same is in a position to make due arrangements for her
maintenance.
28. With this preface regarding a Hindu woman's right to maintenance and the necessary
concomitants and incidents of those rights, we now proceed to determine the question of
law that arises for consideration in this appeal. Before taking up that question, I might
trace the historical growth of the legislation introducing slow and gradual changes in the
Shastric Hindu Law from time to time. The exact origin of Hindu Law is steeped and
shrouded in antiquity and. therefore, it is not possible to determine the ethics or
justification for assigning a somewhat subordinate position to a Hindu woman in matters
of inheritance, marriage and the nature of the limited interest which she took even after
inheriting her husband's property. It is also strange that the Hindu Law made no provision
for divorce at all. This may be due to the fact that during the time of Manu and
Yajnavalkya the structure of the Hindu society was quite different and there being no
social problem of the magnitude that we . have today, it was not considered necessary to
break up the integrity and solidarity of a Hindu family by allowing ownership rights to the
Hindu females. Another object may have been to retain the family property within the
family in order to consolidate the gains which a particular family may have made.
However, these are matters of speculation. But one thing is clear, namely, that the Hindu
jurists were very particular in making stringent provisions safeguarding the maintenance
of the Hindu females either by the husband or even by his heirs after his death. Perhaps
they thought that the property which a widow may receive in lieu of maintenance or the
expenses which may be incurred for her maintenance would be a good substitute for the
share which she might inherit in her husband's property. Nevertheless, the Legislature
appears to have stepped in from time to time to soften the rigors of the personal law of
Hindus by adding new heirs, conferring new rights on Hindu females and making express
provisions for adoption, maintenance etc. It appears that the question of conferring
absolute interest on the Hindu female had engaged the attention of the Legislature ever
since 1941 but the idea took a tangible shape only in 1954 when the Hindu Succession Bill
was introduced and eventually passed in 1956. This Bill was preceded by a Hindu Code
Committee headed by Mr. B. N. Rau who had made a number of recommendations which
formed the basis of the 1956 Act.
29. After the attainment of independence, the entire perspective changed, the nature of old
human values assumed a new complexion and the need for emancipation of womanhood
from feudal bondage became all the more imperative. Under the strain and stress of socio-
economic conditions and a continuous agitation by the female Hindus for enlargement of
their rights a new look to the rights of women as provided by the Shastric Hindu Law had
to be given. In pursuance of these social pressures it was necessary to set up a new social
order where the women should be given a place of honour and equality with the male sex
in every other respect. This was the prime need of the hour and the temper of the times
dictated the imperative necessity of making revolutionary changes in the Hindu Law in
order to abolish the invidious distinction in matters of inheritance between a male and a
female. Similarly it was realised that there should be express provision for divorce on
certain specified grounds inasmuch as the absence of such a provision had perpetrated a
serious injustice to the Hindu females for a long time. It seems to me that it was with this
object in view that the Legislature of our free , country thought it as its primary duty to
bring forth legislation to remove the dangerous anomalies appearing in the Hindu Law.
Even during the British times, there were certain legislations modifying certain provisions
of the Hindu Law e. g., the Hindu Law Inheritance Act which added a few more heirs
including some females; the Hindu Women's Right to Property Act, 1937, which provided
that on partition a widow would be entitled to the same share as the sons in the property of
her husband. The Act of 1937, while giving a share to the wife on partition had not
disturbed her right to claim maintenance which was preserved intact and although she was
not permitted to sue for partition she was undoubtedly entitled to sue for maintenance
without having recourse to the remedy of partition. After independence the Parliament
passed the Hindu Minority and Guardianship Act, 1956 the Hindu Adoptions and
Maintenance Act, 1956; the Hindu Marriage Act, 1955 which regulated the law of
marriage and divorce and ultimately the Hindu Succession Act, 1956 which provided for
interstate succession. The Hindu Succession Act, 1956 was therefore, undoubtedly a piece
of social legislation which fulfilled a long felt need of the nation and was widely
acclaimed by the entire people as would appear from the debates which preceded the
passing of the Act.
30. It is in the light of these circumstances that we have now to interpret the provisions of
Section 14(1) & (2) of the Act of 1956. Section 14 of the 1956 Act runs thus:
14. (1) Any property possessed by a female Hindu, whether acquired before or after the
owner.
Explanation.-In this Sub-section, "property" includes both movable and immovable

This Court has interpreted the scope and ambit of Section 14(1) and the Explanation
thereto on several occasions and has pointed out that the object of the legislation was to
make revolutionary and far-reaching changes in the entire structure of the Hindu society.
The word "possessed" used in Section 14(1) has also been interpreted by this Court and it
has been held that the word has been used in a very wide sense so as to include the state of
owning or having the property in one's power and it is not necessary for the application of
Section 14(1) that a Hindu woman should be in actual or physical possession of the
property. It is sufficient if she has a right in the property and the said property is in her
power or domain. In S. S. Munnalal v. S. S Raikumar MANU/SC/0400/1962 :
AIR1962SC1493 it was held by this Court that the interest which a widow got by
declaration of her share under a preliminary decree would fall within the ambit of Section
14(1) and even though the widow did not get actual possession of the property until a final
decree is passed she would in law be deemed to be in possession of the property. In that
case the High Court had held that mere declaration of the share of the widow passed only
an inchoate interest to her and she never came to possess the share with-in the meaning of
Section 14 of the Act and, therefore, the property remained joint family property. This
Court reversed the judgment of the High Court holding that once a preliminary decree was
passed in favour of the widow granting her a share in the property she must be deemed to
be in possession of the property ' in question. Their Lordships emphasized that the words
"possessed by" used in Section 14(1) clearly indicated that such a situation was envisaged
by the Legislature. While interpreting the provisions of Section 14 the Court also pointed
out that the 1956 Act was a codifying enactment which had made far-reaching changes in
the structure of the Hindu Society and object was to sweep away traditional limitations
placed on the rights of the Hindu Women. In this connection, the Court observed as
follows:
The Act is a codifying enactment, and has made far-reaching changes in the structure of
the Hindu Law of inheritance and succession. The Act confers upon Hindu females full
rights of inheritance, and sweeps away the traditional limitations on her powers of
dispositions which were regarded under the Hindu Law as inherent in her estate....
Normally a right declared in an estate by a preliminary decree would be regarded as
property, and there is nothing in the context in which Section 14 occurs or in the
phraseology used by the Legislature to warrant the view that such a right declared in
relation to the estate of a joint family in favour of a Hindu Widow is not property within
the meaning of Section 14. In the light of the scheme of the Act and its avowed purpose it
would be difficult, without doing violence to the language used in the enactment, to
assume, that a right declared in property in favour of a person under a decree for partition
is not a right to property. If under a preliminary decree the right in favour of a Hindu male
be regarded as property the right declared in favour of a Hindu female must also be
regarded as property.
Earlier the Court observed in that very case as under:
By Section 14(1) the Legislature sought to convert the interest of a Hindu female which
under the Shastric Hindu law would have been regarded as a limited interest into an
absolute interest and by the explanation thereto gave to the expression "property" the
widest connotation.
The expression includes property acquired by a Hindu female by inheritance or devise, or

at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any
person, whether a relative or not, before at or after her marriage, or by her own skill or
exertion, or by purchase or by prescription, or in any other manner whatsoever. By Section
14(1) manifestly it is intended to convert the interest which a Hindu female has in property
however restricted the nature of that interest under the Sastric Hindu law may he into
absolute estate.
31. The matter was again considered by this Court in Erarama v. Verrupanna
MANU/SC/0365/1965 : [1966]2SCR626 where it was held that before a widow can get
absolute interest under Section 14(1) she must have some vestige of title, i. e. her
possession must be under some title or right and not be that of a rank trespasser. In this
connection the Court observed as follows:
The property possessed by a female Hindu, as contemplated in the section, is clearly

property to which she has acquired some kind of title whether before or after the
commencement of the Act. It may be noticed that the Explanation to Section 14(1) sets out
the various modes of acquisition of the property by a female Hindu and indicates that the
section applies only to property to which the female Hindu has acquired some kind of title,
however, restricted the nature of her interest may be.... It does not in any way confer a title
on the female Hindu where she did not in fact possess any vestige of title. It follows,
therefore, that the section cannot be interpreted so as to validate the illegal possession of a
female Hindu and it does not confer any title on a mere trespasser. In other words, the
provisions of Section 14(1) of the Act cannot be attracted in the case of a Hindu female
who is in possession of the property of the last male holder on the date of the
commencement of the Act when she is only a trespasser without any right to property.
32. In Mangal Singh v. Smt. Rattno MANU/SC/0205/1967 : [1967]3SCR454 a widow
came into possession of her husband's property in 1917 and continued to be in possession
of the same till 1954 when she was dispossessed by a collateral of her husband under the
orders of the Revenue authorities. She filed a suit for recovery of possession and during
the pendency of the suit the Act of 1956 came into force. This Court upholding the -
judgment of the High Court held that the dispossession of the widow being illegal, she
must be deemed to be, in the eye of law, to continue in possession of the properties and
acquired an absolute interest with the coming into force of the Act of 1956. It was not a
case where a Hindu female had parted with her right so as to place herself in a position
where she could in no manner exercise her rights in that property any longer when the Act
came into force. This Court observed as follows:
It is significant that the Legislature begins Section 14(1) with the words "any property
possessed by a female Hindu" and not "any property in possession of a female Hindu". If
the expression used had been "in possession of instead of "possessed by", the proper
interpretation would probably have been to hold that, in order to apply this provision, the
property must be such as is either in actual possession of the female Hindu or in her
constructive possession. The constructive possession may be through a lessee, mortgage,
licensee, etc. The use of the expression "possessed by" instead of the expression "in
possession of", in our opinion, was intended to enlarge the meaning of this expression. It
is commonly known in English language that a property is said to be possessed by a
person, if he is its owner, even though he may, for the time being, be out of actual
possession or even constructive possession.
It appears to us that the expression used in Section 14(1) of the Act was intended to cover
cases of possession in law also where lands may have descended to a female Hindu and
she has not actually entered into them. It would of course, cover the other cases of actual
or constructive possession. On the language of Section 14(1), therefore, we hold that this
provision will become applicable to any property which is owned by a female Hindu, even
though she is not in actual, physical or constructive possession. On the language of
Section 14(1), therefore, we hold that this provision will become applicable to any
property which is owned by a female Hindu, even though she is not in actual, physical or
constructive possession of that property.
33. Again, while referring to an earlier case, namely, Eramma v. Verrupanna

MANU/SC/0365/1965 : [1966]2SCR626 (supra) the Court clarified the position thus:
This case also, thus, clarifies that the expression "possessed by" is, not intended to apply
to a case of mere possession without title, and that the legislature intended this provision
for cases where the Hindu female possesses the right of ownership of the property in
question. Even mere physical possession of the property without the right of ownership
will not attract the provisions of this section. This case, also, thus, supports our view that
the expression "possessed by" was used in the sense of connoting state of ownership and,
while the Hindu female possesses the rights of ownership, she would become full owner if
the other conditions mentioned in the section are fulfilled. The section will, however, not
apply at all to cases where the Hindu female may have parted with her rights so as to place
herself in a position where she could, in no manner, exercise her rights of ownership in
that property any longer.
34. In Sukhram v. Gauri Shanker MANU/SC/0208/1967 : [1968]1SCR476 the facts were
as follows:
Hukam Singh and Sukh Ram were two brothers. Chidda, the second appellant was the son
of Sukh Ram and thus Chidda, Hukam Singh and Sukh Ram were members of a joint
Hindu family governed by the Benares School of Mitakshara Law. Hukam Singh died in
1952 leaving behind his widow Krishna Devi. On December 15, 1956, Krishna Devi sold
half share of the house belonging to the joint family. This sale was challenged by the other
members of the joint family on the ground that Krishna Devi had merely a life interest.
The question raised was whether Krishna Devi acquired en absolute interest in the
properties after coming into force of the Hindu Succession Act, 1956. It was argued before
this Court that according to the Benares School, a male coparcener was not entitled to
alienate even for value his undivided interest in the coparcenary without the consent of
other co-parceners and, therefore, Krishna Devi could not have higher rights than what her
husband possessed. This Court, however, held that in view of the express words of Section
14 of the 1956 Act, once the widow was possessed of property before or after the
commencement of the Act, she held it as full owner and not as a limited owner and,
therefore, any restriction placed by Shastric Hindu Law was wiped out by the legislative
intent as expressed in the Act of 1956. The Court observed thus:
But the words of Section 14 of the Hindu Succession Act are express and explicit: thereby
a female Hindu possessed of property whether acquired before or after the commencement
of the Act holds it as full owner and not as a limited owner. The interest to which Krishna
Devi became entitled on the death of her husband under Section 3(2) of the Hindu
Women's Right to Property Act, 1937, in the property of the joint family is indisputably
her "property" within the meaning of Section 14 of Act 30 of 1956, and when she became
"full owner" of that property she acquired a right unlimited in point of user and duration
and uninhibited in point of disposition.
This case indirectly supports the view that if the intention of the legislature was to confer
absolute interest on the widow, no limitation can be spelt out either from the old Shastric
law or otherwise which may be allowed to defeat the intention. This Court went to the
extent of holding that the words in Section 14(1) are so express and explicit that the
widow acquired a right unlimited in point of user, though a male member governed by the
Benares School had no power of alienation without the consent of other coparceners.
Under the Act the female had higher powers than the male because the words of the
statute did not contain any limitation at all. On a parity of reasoning, therefore, where once
a property is given to the widow in lieu of maintenance and she enters into possession of
that property, no amount of restriction contained in the document can prevent her from
acquiring absolute interest in the property because the contractual restriction cannot be
higher than the old Hindu Shastric Law or the express words of the Act of 1956.
35. In Badri Pershad v. Smt. Kanso Devi MANU/SC/0293/1969 : [1970]2SCR95 the

propositus died in 1947 leaving behind five sons and a widow. Soon after his death
disputes arose between the parties and the matter was referred to an arbitrator in 1950. The
arbitrator in his award allotted shares to the parties wherein it was stated that the widow
would only have widow's estate in those properties. While the widow was in possession of
the properties, the Act of 1956 came into force and the question arose whether or not she
became full owner of the property or she only had a restricted interest as provided in the
grant, namely, the award. This Court held that although the award had given a restricted
estate, but this was only a narration of the state of law as it existed when the award was
made. As the widow, however, inherited the property under the Hindu Women's Right to
Property Act, her interest became absolute with the passing of the Act of 1956 and she
squarely fell within the provisions of Section 14(1) of the Act. It was further held that the
mere fact that the partition was by means of an award would not bring the matter within
Section 14(2) of the Act, because the interest given to the widow was on the basis of a pre-
existing right and not a new grant for the first time. This Court observed as follows:
The word "acquired" in Sub-section (1) has also to be given the widest possible meaning.
This would be so because of the language of the Explanation which makes Sub-section (1)
applicable to acquisition of property by inheritance or devise or at a partition or in lieu of
maintenance or arrears of maintenance or by gift or by a female's own skill or exertion or
by purchase or prescription or in any manner whatsoever. Where at the commencement of
the Act a female Hindu has a share in joint properties which are later on partitioned by
metes and bounds and she gets possession of the properties allotted to her there can be no
manner of doubt that she is not only possessed of that property at the time of the coming
into force of the Act but has also acquired the same before its commencement.
This Court relied upon two earlier decisions: viz., S. S Munnalal's case
MANU/SC/0400/1962 : AIR1962SC1493 and Sukhram's case MANU/SC/0208/1967 :
[1968]1SCR476 (supra). This case appears to be nearest to the point which falls for
determination in this appeal, though it does not cover the points argued before us directly.
36. Lastly our attention was drawn to an unreported decision of this Court in Nirmal
Chand v. Vidya Wanti (dead) by her legal representatives C. A. No. 609 of 1965 decided
on Jan. 21, 1969 (SC) in which case Amin Chand and Lakhmi Chand were the owners of
agricultural and non-agricultural properties. The properties were partitioned in the year
1944 and Lakhmi Chand died leaving behind him the appellant and his second wife
Subhrai Bai and his daughter by this wife. There was a regular partition between Amin
Chand and Subhrai Bai by a registered document dated December 3, ' 1945 under which a
portion of the property was allotted to Subhrai Bai and it was provided in the document
that Subhrai Bai would be entitled only to the user of the land and she will have no right to
alienate it in any manner but will have only life interest. Later, Subhrai Bai bequeathed the
property in 1957 to her daughter Vidya Wanti. Subhrai Bai died and Vidya Wanti's name
was mutated in the papers after coming into force of the Act of 1956. The point raised
before the High Court was that as Subhrai Bai had been given only a limited interest in the
property she had no power to bequeath the property to her daughter as her case was not
covered by Section 14(1) but fell under Section 14(2) of the Act. This Court pointed out
that at the time when the property was allotted to Subhrai Bai, the Hindu Succession Act
had not come into force and according to the state of Hindu Law as it then prevailed
Subhrai Bai was undoubtedly entitled only to a limited interest. There was a restriction in
the partition deed that Subhrai Bai would enjoy usufruct of the property only and shall not
be entitled to make any alienation. It was not a restriction as such but mere statement of
law as it then prevailed. Such a restriction, therefore, would not bring the case of Subhrai
Bai under Section 14(2) of the Act and, therefore, she would acquire an absolute interest
after the passing of the Act of 1956 and was, therefore, competent to execute the will in
favour of her daughter. This Court observed as follows:
If Subhrai Bai was entitled to a share in her husband's properties then the suit properties
must be held to have been allotted to her in accordance with law. As the law then stood
she had only a life interest in the properties taken by her. Therefore the recital in the deed
in question that she would have only a life interest in the properties allotted to her share is
merely recording the true legal position. Hence it is not possible to conclude that the
properties in question were given to her subject to the condition of her enjoying it for her
lifetime. Therefore the trial Court as well as the first Appellate Court were right in holding
that the facts of the case do not fall within Section 14(2) of the Hindu Succession Act,
1956.
37. In the light of the above decisions of this Court the following principles appear to be
clear:
(1) that the provisions of Section 14 of the 1956 Act must be liberally construed in order
to advance the object of the Act which is to enlarge the limited interest possessed by a
Hindu widow which was in consonance with the changing temper of the times;
(2) it is manifestly clear that sub-Section (2) of Section 14 does not refer to any transfer
which merely recognises a pre-existing right without creating or conferring a new title on
the widow. This was clearly held by this Court in Badri Pershad's case
MANU/SC/0293/1969 : [1970]2SCR95 (supra).
(3) that the Act of 1956 has made revolutionary and far-reaching changes in the Hindu
Society and every attempt should be made to carry out the spirit of the Act which has
undoubtedly supplied a long felt need and tried to do away with the invidious distinction
between a Hindu male and female in matters of interstate succession;
(4) that Sub-section (2) of Section 14 is merely a proviso to Sub-section (1) of Section 14
and has to be interpreted as a proviso and not in a manner so as to destroy the effect of the
main provision.
38. We have given our anxious consideration to the language of Section 14(1) and (2) and
we feel that on a proper interpretation of Section 14(2) there does not appear to be any real
inconsistency between Section 14(1), the explanation thereto and Sub-section (2). To
begin with, Section 14(1) does not limit the enlargement of the estate of a Hindu widow to
any particular interest in the property. On the other hand the explanation to Section 14(1)
brings out the real purpose of Section 14(1) by giving an exhaustive category of cases
where principle of Section 14(1) has to operate, i. e. to cases where a Hindu female would
get an absolute interest. The argument of the learned Counsel for the appellant is that as
the right of maintenance was a pre-existing right, any instrument or transaction by which
the property was allotted to the appellant would not be a new transaction so as to create a
new title but would be only in recognition of a pre-existing right, namely, the right of
maintenance. On the other hand Mr. Natesan appearing for the respondents submitted that
the object of the proviso was to validate rather than to disturb the past transactions which
had placed certain restrictions or curbs on the power of Hindu female and as the language
of the proviso is very wide there is no warrant for not applying it to cases where pre-
existing rights are concerned. In the alternative, Mr. Natesan argued that the Hindu
Women's right to maintenance is not a legal right unless an actual charge is created in
respect of the property and is, therefore, not enforceable at law. It is, therefore, not correct
to describe a claim of a Hindu female's right to maintenance simplicities as a pre-existing
right because all the necessary indicia of a legal right are wanting.
39. After considering various aspects of the matter we are inclined to agree with the
contentions raised by Mr. Krishna Murthy Iyer appearing for the appellant. In the first
place, the appellant's contention appears to be more in consonance with the spirit and
object of the statute itself. Secondly, we have already pointed out that the claim of a Hindu
female for maintenance is undoubtedly a pre-existing right and this has been so held not
only by various Courts in India but also by the Judicial Committee of the Privy Council
and by this Court. It seems to us, and it has been held as discussed above, that the claim or
the right to maintenance possessed by a Hindu female is really a substitute for a share
which she would have got in the property of her husband. This being the position, where a
Hindu female who gets a share in her husband's property acquires an absolute interest by
virtue of Section 14(1) of the Act, could it be intended by the legislature that in the same
circumstances a Hindu female who could not get a share but has a right of maintenance
would not get an absolute interest? In other words, the position would be that the appellant
would suffer because her husband had died prior to the Act of 1937. If the husband of the
appellant had died after 1937, there could be no dispute that the appellant would have got
an absolute interest, because she was entitled to her share under the provisions of the
Hindu Women's Right to Property Act, 1937. Furthermore, it may be necessary to study
the language in which the Explanation to Section 14(1) and Sub-section (2) of Section 14
are couched. It would be seen that while the Explanation to Section 14(1) clearly and
expressly mentioned "property acquired by a female Hindu" at a partition or in lieu of
maintenance or arrears of main tenancy, there is no reference in Sub-section (2) at all to
this particular mode of acquisition by a Hindu female which clearly indicates that the
intention of the Parliament was to exclude the application of Sub-section (2) to cases
where the property has been acquired by a Hindu female either at a partition or in lieu of
maintenance etc. The Explanation is an inclusive definition and if the Parliament intended
that everything that is mentioned in the Explanation should be covered by Sub-section (2)
it should have expressly so stated in Sub-section (2). Again the language of Sub-section
(2) clearly shows that it would apply only to such transactions which are absolutely
independent in nature and which are not in recognition of or in lieu of pre-existing rights.
It appears from the Parliamentary Debates that when the Hindu Succession Bill, 1954, was
referred to a Joint Committee by the Rajya Sabha, in Section 14(2) which was Clause
16(2) of the Draft Bill of the Joint Committee, the words mentioned were only gift or will.
Thus the intention of the Parliament was to confine Sub-section (2) only to two
transactions, namely a gift or a will, which clearly would not include property received by
a Hindu female in lieu of maintenance or at a partition. Subsequently, however, an
amendment was proposed by one of the members for adding other categories, namely, an
instrument, decree, order or award which was accepted by the Government. This would
show that the various terms, viz., gift, will, instrument, decree, order or award mentioned
in Section 14(2) would have to be read ejusdem generis so as refer to transactions where
right is created for the first time in favour of the Hindu female. The intention of the
Parliament in adding the other categories to Sub-section (2) was merely to ensure that any
transaction under which a Hindu female gets a new or independent title under any of the
modes mentioned in Section 14(2), namely, gift, will, decree, order, award or an
instrument which prescribes a restricted estate would not be disturbed and would continue
to occupy the field covered by Section 14(2). This would be the position even if a Hindu
male was to get the property by any of the modes mentioned in. Section 14(2); he would
also get only a restricted interest and, therefore, the Parliament thought that there was no
warrant for making any distinction between a male or a female in this regard and both
were therefore, sought to be equated.
40. Finally, we cannot overlook the scope and extent of a proviso. There can be no doubt
that Sub-section (2) of Section 14 is clearly a proviso to Section 14(1) and this has been so
held by this Court in Badri Pershad's case MANU/SC/0293/1969 : [1970]2SCR95 (supra).
It is well settled that a provision in the nature of a proviso merely carves out an exception
to the main provision and cannot be interpreted in a manner so as to destroy the effect of
the main provision or to render the same nugatory. If we accept the argument of the
respondents that Sub-section (2) to Section 14 would include even a property which has
been acquired by a Hindu female at partition or in lieu of maintenance then a substantial
part of the Explanation would be completely set at naught which could never be the
intention of the proviso. Thus we are clearly of the opinion that Sub-section (2) of Section
14 of the proviso should be interpreted in such a way so as not to substantially erode
Section 14(1) or the Explanation thereto. In the present case we feel that the proviso has
carved out completely a separate field and before it can apply three conditions must exist:
(i) that the property must have been acquired by way of gift, will instrument, decree, order
of the Court or by an award;
(ii) that any of these documents executed in favour of a Hindu female must prescribe a
restricted estate in such property; and
(iii) that the instrument must create or confer a new right, title or interest on the Hindu
female and not merely recognise or give effect to a pre-existing right which the female ,
Hindu already possessed.
Where any of these documents are executed but no restricted estate is prescribed, Sub-
section (2) will have no application. Similarly where these instruments do not confer any
new title for the first time on the female Hindu, Section 14(2) would have no application.
It seems to me that Section 14(2) is a salutary provision which has been incorporated by
the Parliament for historical reasons in order to maintain the link between the Shastric
Hindu law and the Hindu Law which was sought to be changed by recent legislation, so
that where a female Hindu became possessed of property not in virtue of any pre-existing
right but otherwise, and the grantor chose to impose certain conditions on the grantee, the
Legislature did not want to interfere with such a transaction by obliterating or setting at
naught the conditions imposed.
41. There was some argument at the bar regarding the use of the term "limited owner" in S
14(1) and "restricted estate" in Section 14(2). Not much, however, turns upon this. I think
that the Parliament advisedly used the expression "restricted estate" in Section 14(2),
because while a limited interest would indicate only a life estate, a restricted estate is
much wider in its import. For instance, suppose a donor while giving the property to a
Hindu female, inserts a condition that she will have to pay Rs. 200/- to donor or to one of
his relatives till a particular time, this would not come within the term "limited interest",
but it would be included by the term "restricted estate". That is the only justification for
the difference in the terminology of Section 14(1) and (2) of the Act.
42. Having discussed the various aspects of Section 14(1) and (2) we shall now deal with
the authorities cited before us by counsel for the parties which are by no means consistent.
We will first deal with the authorities which took the view that we have taken in this case.
In this connection the sheet-anchor of the argument of the learned Counsel for the
appellant is the decision of the Bombay High Court in B. B. Patil v. Gangabai,
MANU/MH/0100/1972 : AIR1972Bom16 and that of the counsel for the respondents is
the decision of the Madras High Court in Gurunadham v. Sundrarajulu ILR
MANU/TN/0308/1967 : AIR1967Mad429 and Santhanam v. Subramania, ILR (1967) 1
Mad 68. The latter case was affirmed in appeal by the Division Bench of the Madras High
Court in S. Kachapalava Gurukkal v. V. Subramania Gurukkal, AIR 1972 Mad 279 and
the aforesaid Division Bench judgment forms the subject-matter of Civil Appeal No. 135
of 1973 which will be disposed of by us by a separate judgment.
43. We will now take up the case of the Bombay High Court relied upon by the learned
Counsel for the appellant which, in our opinion, lays down the correct law on the subject.
In B. B. Patil v. Gangabai, MANU/MH/0100/1972 : AIR1972Bom16 (supra) the facts
briefly were that the properties in question were the self-acquired properties of Devgonda
and after his death in 1902 Hira Bai daughter-in-law of Devgonda (widow of his son
Appa, who also died soon thereafter) came into possession of the properties. Disputes
arose between Hira Bai and Nemgonda, the nephew of Devgonda, and the matter having
been referred to the arbitrator he gave his award on October 15, 1903 and a decree in
terms of the award was passed on October 24, 1903. Under the decree in terms of the
award. 65 acres of land and one house was allotted to Hira Bai out of which 30 acres were
earmarked for the provision of maintenance and marriage of the three daughters and the
rest of the property was ordered to be retained by Hirabai for life with certain restrictions.
After her death these properties were to revert to Nemgonda. The dispute which was the
subject-matter of the appeal before the High Court was confined to 35 acres of land and
the house which was in possession of Hira Bai. Hira Bai continued to be in possession of
these properties right up to February 25, 1967. Meanwhile Nemgonda had died and his
sons defendants 2 to 6 claimed the properties. After the death of Hira Bai. the plaintiffs.
who were two out of the three daughters of Hira Bai, filed a suit for possession claiming
entire title to the properties in possession of Hira Bai on the ground that Hira Bai was in
possession of the properties as limited owner at the time of the passing of the Hindu
Succession Act, 1956 and so her limited estate was enlarged into an absolute estate and
the plaintiffs were, therefore, entitled to succeed to her properties in preference to the
reversioners. The suit was contested by defendants 2 to 6 mainly on the ground that as
Hira Bai under the compromise was to retain only a life interest in the properties, her case
would be covered by Section 14(2) of the Act and after her death the properties would
revert to the reversioners. The Court held that as Hira Bai was put in possession of the
properties in lieu of her maintenance, Section 14(2) had no application, because the award
merely recognised the pre-existing rights of Hira Bai and did not seek to confer any fresh
rights or source of title on Hira Bai. Thus even though the award did provide that Hira Bai
would have a limited interest, Section 14(2) would have no application and Hira Bai will
get an absolute interest after the coming into force of the Hindu Succession Act, 1956. The
Court observed:
The explanation thus, brings under its purview all properties traditionally acquired by a
Hindu female in which merely by reason of the incidents of the Hindu law she has limited
ownership. In other words, Sub-section (1) read with this explanation provides that any
property, howsoever acquired and in possession of a Hindu female after the
commencement of the Act shall be held by her as a full owner in all ' cases where she
formerly held merely limited ownership. As a matter of fact. this Sub-section proceeds on
the basis that there are several categories of properties of which a Hindu female, under the
provisions of the Hindu Law. is merely a limited owner By this enactment her rights are
enlarged and wherever under the Hindu Law she would merely obtain limited ownership
she would. after the commencement of the Act, obtain full ownership.
There is consensus of judicial opinion with regard to the ambit of Sub-section (2) of
Section 14 of the Act. It covers only those cases of grants where the interest in the grantee
is created by the grant itself, or, in other words, where the gift, will, instrument, decree,
order or award is the source or origin of the interest created in the grantee. Where,
however, the instruments referred to above are not the source of interest created but are
merely declaratory or definitive of the right to property antecedently enjoyed by the Hindu
female, Sub-section (2) has no application; and it matters not if in such instruments it is
specifically provided in express terms that the Hindu female had a limited estate or that
the property would revert on her death to the next rever-sioner, such terms are merely the
reiteration of the incidents of the Hindu Law applicable to the limited estate." Dwelling on
the nature and incidents of the right of the widow to maintenance before the Hindu
Women's Rights to Property Act, 1937, Palekar J., speaking for the Court described the
various characteristics and incidents of the right of a Hindu female for maintenance
(which have already been discussed by us). Finally, the Judge observed as follows:
It appears to us that in the context of the Hindu widows the right to maintenance conferred
under the Hindu Law is indistinguishable in quality from her right to a share in the family
property. That may well be the reason why the explanation to Sub-section (1) of Section
14 of the Act makes the female allotter of property "in lieu of maintenance" as much a
limited owner as when the widow acquires on "inheritance" or "at a partition". And if in
the latter two cases it is conceded that Sub-section (2) does not apply on the ground of
antecedent right to the family properties we do not see any rational justification to exclude
a widow who has an equally sufficient claim over the family properties for her
maintenance.
44. Thus the following propositions emerge from a detailed discussion of this case:
(1) that the widow's claim to maintenance is undoubtedly a tangible right though not an
absolute right to property so as to become a fresh source of title. The claim for
maintenance can, however, be made charge on the Joint family properties, and even if the
properties are sold with the notice of the said charge, the sold properties will be burdened
with the claim for maintenance;
(2) that by virtue of the Hindu Women's Rights to Property Act, 1937 the claim of the
widow to maintenance has been crystallized into a full-fledged right and any property
allotted to her in lieu of maintenance becomes property to which she has a limited interest
which by virtue of the provisions of Act of 1956 is enlarged into an absolute title:
(3) Section 14(2) applies only to cases where grant is not in lieu of maintenance or in
recognition of pre-existing rights but confers a fresh right or title for the first time and
while conferring the said title certain restrictions are placed by the grant or transfer.
Where, however, the grant is merely in recognition or in implementation of a pre-existing
right to claim maintenance, the case falls beyond the purview of Section 14(2) and comes
squarely within the explanation to Section 14(1).
The Court dissented from the contrary view taken by the Orissa and Madras High Courts
on this question. We find that the facts of this case are on all fours with the present appeal,
and we are in complete agreement with the view taken and the reasons given by Palekar, J.
Once it is recognised that right of maintenance is a pre-existing tangible right, it makes no
difference whether a Hindu widow died before or after the enactment of Hindu Women's
Rights to Property Act, 1937.
45. A similar view was taken by an earlier decision of the Andhra Pradesh High Court in
Gadem Reddayya v. Varapula Venkataraju. MANU/AP/0135/1965 : AIR1965AP66 ,
where the Court held that the family settlement was only in recognition of the pre-existing
right of the widow to maintenance and, therefore, was not covered by Section 14(2) of the
Act of 1956. In our opinion, this case correctly states the law on the subject.
46. In Sumeshwar Mishra Swami Nath Tiwari, MANU/BH/0063/1970 : AIR1970Pat348

the High Court of Patna appears to have taken the same view, and in our opinion very
correctly. The Pittas High Court differed from the decision of the Madras High Court in
Thatha Gurunadhan Chetti v. Smt. Thatha Navaneethamma MANU/TN/0308/1967 :
AIR1967Mad429 and in our opinion rightly. We are of the opinion, for the reasons that we
have already given above, that the view of the Madras High Court was not legally correct.
A later decision of the Patna High Court in Lakshmi Devi v. Shankar Jha
MANU/BH/0025/1974 : AIR1974Pat87 has also taken the same view. We. however, fully
approve of the view expressed by the Patna High Court and Andhra Pradesh High Court
referred to above.
47. Similarly in H. Venkatagouda v. Hanamangouda, AIR 1972 Mys 286, the Mysore
High Court adopted the view of the Bombay High Court in B. B. Patil v. Gangabai
MANU/MH/0100/1972 : AIR1972Bom16 (supra) and dissented from the contrary view
taken by the Madras and the Orissa High Courts. In our opinion, this decision seems to
have correctly interpreted the provisions of Section 14(2) of the 1956 Act and has laid
down the correct law. The view of the Madras High Court and the Orissa High Court
which was dissented from by the Mysore High Court is, in our opinion, legally erroneous
and must be overruled.
48. In Smt. Sharbati Devi v. Hiralal AIR 1964 Pun 114. the Punjab High Court clearly
held hat application of Section 14(2) was limited to only those cases where a female hindu
acquired a title for the first time, for otherwise the property acquired in lieu of
maintenance even though conferring a limited estate fell clearly within the ambit of
explanation to Section 14(1) of the Act and would, therefore, become the absolute
property on the widow. Thus the Punjab High Court also fully favours the view taken by
the Bombay, Patna, Mysore. Andhra Pradesh and other High Courts discussed above and
has our full approval. The only distinction in the Punjab case is that here the widow got
the properties after the coming into force of the Hindu Women's Rights to Property Act,
1937. but that, as we shall point out hereafter makes no difference with respect to the legal
right which a widow has to maintain herself out of the family property.
49. The Calcutta High Court has also taken the same view in Sasadhar Chandra Dey v.
Smt. Tara Sundari Desi MANU/WB/0093/1962 : AIR1962Cal438 which we endorse.
50. In Saraswathi Ammal v. Anan- tha Shenoi, AIR 1966 Ker 66 the Kerala High Court,
after a very detailed discussion and meticulous analysis of the law on the subject, pointed
out that the right of a widow to maintenance was not a matter of concession but under the
Sastric Hindu Law it was an obligation on the heirs who inherited the properties of the
husband to maintain the widow and any property which the widow got in lieu of
maintenance was not one given purely as a matter of concession, but the widow acquired a
right in such property. We fully agree with the view taken by the Kerala High Court in the
aforesaid case.
51. In Kunji Thomman v. Meenakshi, MANU/KE/0046/1970 : AIR1970Ker284 although

the Kerala High Court reiterated its previous view, on the facts of that particular case the
High Court held that under the family settlement the widow did not get any right to
maintenance but was conferred a new right Which was not based on her pre-existing right
and on this ground the High Court felt that the widow would not get an absolute interest in
view of the explanation to Section 14(1).
52. In Chellammal v. Nellammal, (1971) 1 Mad LJ 439 the facts were almost similar to
the facts of the present case. A single Judge of the Madras High Court held that the case
was clearly covered by the Explanation to Section 14(1) of the Act and the properties
given to the widow in lieu of maintenance became her absolute properties and would not
be covered by Section 14(2) of the Act. This decision appears to have been overruled by a
later decision of the same High Court in S. Kachapalaya Gurukkal v. V. Subramania
Gurukkal AIR 1972 Mad 279 which is the subject-matter of Civil Appeal No. 126 of 1972
and we shall discuss the Division Bench's decision when we refer to the authorities taking
a contrary view. We find ourselves in complete agreement with the view taken by the
single Judge in Chellammal v. Nellammal (supra), and we overrule the Division Bench
decision in S. Kachapalaya Guruk-kal's case (supra).
53. Thus all the decisions discussed above proceed on the right premises and have
correctly appreciated the nature and incidents of a Hindu woman's right to maintenance.
They have also properly understood the import and applicability of Section 14(2) of the
1956 Act and have laid down correct law on the subject.
54. We now deal with the authorities taking a contrary view, which in our opinion, does
not appear to be the correct view.
55. In Narayan Patra v. Tara Patrani MANU/OR/0045/1970 : AIR1970Ori131 the Orissa

High Court, following a decision of the Andhra Pradesh High Court in G. Kondiah v. G.
Subbarayudu (1968) 2 Andh WR 455, held that since the widows were given only a
restricted estate their case squarely fell within the ambit of Section 14(2) of the Act and '
their interest would not be enlarged. Reliance was also placed on a Madras decision in
Thatha Gurunadham Chetty v. Thatha Navaneethamma MANU/TN/0308/1967 :
AIR1967Mad429 (supra). It is obvious that the conclusions arrived at by the High Court
are not warranted by the express principles of Hindu Sastric Law. It is true that a widow's
claim for maintenance does not ripen into a full-fledged right to property, but nevertheless
it is undoubtedly a right which in certain cases can amount to a right to property where it
is charged. It cannot be said that where a property is given to a widow in lieu of
maintenance, it is given to her for the first time and not in lieu of a pre-existing right. The
claim to maintenance, as also the right to claim property in order to maintain herself, is an
inherent right conferred by the Hindu Law and. therefore. any property given to her in lieu
of maintenance is merely in recognition of the claim or right which the widow possessed
from before It cannot be said that such a fight has been conferred on her for the first time
by virtue of the document concerned and before the existence of the document the widow
had no vestige of a claim or right at all. Once it is established that the instrument merely
recognised the pre-existing right, the widow would acquire absolute interest. Secondly, the
Explanation to Section 14(1) merely mentions the various modes by which a widow can
acquire a property and the property given in lieu of maintenance is one of the modes
mentioned in the Explanation. Sub-section (2) is merely a proviso to Section 14(1) and it
cannot be interpreted in such a manner as to destroy the very consent of the right
conferred on a Hindu woman under Section 14(1). Sub-section (2) is limited only to those
cases where by virtue of certain grant or disposition a right is conferred on the widow for
the first time and the said right is restricted by certain conditions. In other words, even if
by a grant or disposition a property is conferred on a Hindu male under certain conditions,
the same are binding on the male. The effect of Sub-section (2) is merely to equate male
and female in respect of grant conferring a restricted estate. In these circumstances we do
not agree with the views expressed by the Orissa High Court.
56. The other High Courts which have taken a contrary view are mainly the Andhra
Pradesh. Allahabad and the Madras High Courts. In an earlier decision of the Patna High
Court in Shiva Pujan Rai. v. Jamuna Missir. ILR (1968) Pat 1118 the High Court seems to
rally round the view taken by the Madras High Court.
57. We shall take up the decisions of the Andhra Pradesh High Court. As already indicated
above, the earlier decision of the Andhra Pradesh High Court in Gadam Reddayya v.
Varapula Venkataraju MANU/AP/0135/1965 : AIR1965AP66 took the same view which
was taken later by the Bombay High Court and held that in a case like the present, a Hindu
female would set an absolute interest and her case would not be covered by Sub-section
(2) of Section 14 of the 1956 Act In Gopisetti Kondaiah v. Gunda Subbaravudu. ILR
(1968) A P 621 another Division Bench of the same High Court appears to have taken a
contrary view. Jaganmohan Reddy, C. J., speaking for the Court observed as follows:
In so far as the right of a Hindu woman to maintenance is concerned, it is necessary at this

stage to point out one other basic concept. A Hindu woman has a right to be maintained by
her husband or from her husband's property or Hindu joint family property. But that is
merely a right to receive maintenance out of the properties without in any way conferring
on her any right, title or interest therein. It is not a definite right, but is capable of being
made a charge on specific properties by agreement, decree of Court or award, compromise
or otherwise.... But this indefinite right, to be maintained from out of the properties of a
Hindu Joint family, does not, however, create in her a proprietary right in the property....
But if a restricted estate is given by any such instrument, even if it be in lieu of
maintenance, which is inconsistent with an estate she would get under the Hindu Law.
then Sub-section (2) of Section 14 would operate to give her only a restricted estate.... But
if it is the latter, notwithstanding the fact that it was transferred in lieu of maintenance, if
only a restricted estate was conferred by the instrument, then she would only have the
restricted estate.
While we fully agree with the first part of the observations made by the learned Chief
Justice, as he then was. that one of the basic concepts of Hindu Law is that a Hindu
woman has right to be maintained by her husband or from her husband's property or the
joint family property, we respectfully disagree with his conclusion that even though this is
the legal position yet the right to receive maintenance does not confer on her any right,
title or interest in the property It is true that the claim for maintenance is not an
enforceable right but it is undoubtedly a pre-existing right, even though no charge is made
on the properties which are liable for her maintenance We also do not agree with the view
of the learned Chief Justice that if the property is given to the widow in lieu of
maintenance she will get only a restricted estate. In our opinion, the High Court of Andhra
Pradesh has proceeded on wrong premises. Instead of acknowledging the right of a Hindu
woman to maintenance as a right to a right - or for that matter a pre-existing right and then
considering the effect of the subsequent transactions, the High Court has first presumed
that the claim for maintenance is not a tangible right at all and. therefore, the question of a
pre-existing right does not arise. This, as we have already pointed out, is against the
consistent view taken by a large number of Courts for a very long period. Furthermore,
this case does not appear to have noticed the previous Division Bench decision in Gedam
Reddayya's case (supra) taking the contrary view, and on this ground alone the authority
of this case is considerably weakened. At any rate, since we are satisfied that the claim of
a Hindu woman for maintenance is a pre-existing right any transaction which is in
recognition or declaration of that right clearly falls beyond the purview of Section 14(2) of
the 1956 Act and. therefore, this authority does not lay down the correct law. We,
therefore, do not approve of the view taken in this case and overrule the same.
58. As regards the Madras High Court, the position appears to be almost the same. There
also, while a single Judge took the same view as the Bombay High Court and held that
Section 14(2) was not applicable, the Division Bench of the Court in an appeal against the
order of another single Judge took the contrary view. In S. Kachapalaya Gurukkal v. V.
Subramania Gurukkal AIR 1972 Mad 279 the Court seems to draw an artificial distinction
between a claim of a widow for maintenance and a pre-existing right possessed by her.
According to the High Court, while a claim for maintenance simpliciter was not a right at
all. the right to get a share in the husband's property under the Hindu Women's Rights to
Property Act, 1937 was a pre-existing right. The Madras High Court appears to have
fallen into an error by misconceiving the scope and extent of a Hindu woman's right to
maintenance. Secondly, it appears to have interpreted the proviso in such a manner as to
destroy the effect of the main provision, namely, Section 14(1) and the explanation
thereto, for which there can be no warrant in law. The decision of Natesan, J., in
Gurunadham v. Sundrarajulu Chetty MANU/TN/0308/1967 : AIR1967Mad429 (supra)
which had been affirmed by this judgment also appears to have taken the same view and
had fallen into the same error Furthermore, the view of the learned Judge that on the
interpretation given and the view taken by the Bombay High Court which we have
accepted. Section 14 is intended to override lawful terms in contracts, bargains, bequests
or gifts etc. is not correct, because the scope and area of Sub-section (2) of Section 14 is
quite separate and defined. Such a Sub-section applies only to such transactions as confer
new right, title or interest on the Hindu females. In such cases the titles created under Sub-
section (2) are left intact and Section 14(1) does not interfere with the titles so created
under those instruments.
59. Thus, in short, these two decisions suffer from the following legal infirmities: (i) the
Madras High Court has not correctly or properly appreciated the nature and extent of the
widow's right to maintenance; and (ii) the distinction drawn by the Court regarding the
share given to the widow under the Hindu Women's Rights to Property Act allotted to her
before the passing of the Act in lieu of maintenance is based on artificial grounds. In fact
the Act of 1937 did not legislate anything new. but merely gave statutory recognition to
the old Shastric Hindu Law by consolidating the same and clarifying the right of the
widow which she already possessed in matter of succession under the Hindu Law This
being the position, the Act of 1937 makes no difference so far as the legal status of a
widow in regard to her right to maintenance was concerned. The Act neither took away
the right of maintenance nor conferred the same: (iii) the Court appears to have given an
extended meaning to Sub-section (2) of Section 14 of the 1956 Act which has been
undoubtedly enlarged so as to set at naught the express words in the Explanation to Sub-
section (1) of Section 14 which expressly exclude the property given to a widow in lieu of
maintenance or at a partition from the ambit of sub-s (2). In other words, such a property,
according to the Explanation, is a property in which the widow would have undoubtedly a
limited interest which by operation of law (i.e. force of Section 14(1)) would be enlarged
into an absolute interest if the widow is in possession of the property on the date when the
Act was passed: (iv) similarly the Court failed to notice that Sub-section (2) of Section 14
would apply only where a new right is created for the first time by virtue of a gift, will etc.
or the like executed in favour of the widow in respect of' which she had no prior interest in
the property at all For instance, a daughter is given a limited interest in presence of the
widow. Here the daughter not being an heir in presence of the widow (before the Hindu
Succession Act came into force) she had no right or share in the property, and if she was
allotted some property under any instrument, a new and fresh right was created in her
favour for the first time which she never possessed. Such a case would be squarely
covered by Section 14(2) of the Act.
60. In Ram Jag Misir v. Director of Consolidation U.P. MANU/UP/0033/1975 :

AIR1975All151 the same view has been taken as the Madras High Court. This case does
not discuss the various aspects which have been pointed out by us and proceeds purely on
the basis that as the widow acquired a restrict-ed estate under the compromise Section
14(2) would at once apply. It has not at all considered the decision of this Court that a
mere description of limited interest in a grant or compromise is not a restriction but may
just as well be merely a statement of the law as it stood when the grant was made. The
Court has also not considered the various incidents and characteristics of the widow's right
to maintenance under the Hindu Law.
61. Reliance was also placed by the learned Counsel for the respondents on a Division
Bench decision of the Patna High Court in Shiva Pujan Rai v. Jamuna Missir ILR (1968)
Pat 1118 where the High Court held that the property Riven to a widow under a
compromise in lieu of her maintenance was covered by Sub-section (2) of Section 14. This
decision was really based on the peculiar findings of fact arrived at by the Courts of fact
The High Court in the first place held that on the facts there was nothing to show that the
widow acquired any interest independent of the compromise under which she was given
the property. In these circumstances, it may be that the widow was given a fresh or a new
title under the compromise in which case the matter would be clearly covered by Section
14(2) of the 1956 Act. Even if this case be treated as an authority for the proposition that
any property allotted to a widow under a compromise in lieu of maintenance would be
covered by Section 14(2) of the Act, then we dissent from this view, and for the reasons
which we have already given we choose to prefer the view taken by the Patna High Court
in later case in Sumeshwar Mishra v. Swami Nath Tiwari MANU/BH/0063/1970 :
AIR1970Pat348 (supra) which lays down the correct law on the subject.
62. Reliance was also placed on a Full Bench decision of the Jammu & Kashmir High
Court in Ajab Singh v. Ram Singh AIR 1959 J & K 92 . In this case also the various
aspects which we have indicated and the nature and extent of the Hindu women's right to
maintenance were not considered at all and the Court proceeded by giving an extended
meaning to the provisions of Sub-section (2) of Section 14 which in that case was Sub-
section (2) of Section 12 of the Jammu & Kashmir Hindu Succession Act, 1956. It is true
that the leading judgment was given by one of us (Fazal Ali, J.,) but I must confess that
the important question of law that has been argued before us in all its comprehensive
aspects was not presented before me in that case and even the counsel for the respondents
did not seriously contend that Sub section (2) of Section 14 was not applicable. For these
reasons we are not in a position to approve of the Full Bench decision of the Jammu and
Kashmir High Court in Ajab Singh's case which is hereby overruled.
63. Thus on a careful scrutiny and analysis of the authorities discussed above, the position
seems to be that the view taken by the High Courts of Bombay, Andhra Pradesh, Patna,
Mysore, Punjab, Calcutta and Kerala to the effect that the widow's claim to maintenance,
even though granted to her subject to certain restrictions, is covered by Section 14(1) and
not by Sub-section (2) is based on the following premises!
(1) That the right of a Hindu widow to claim maintenance ig undoubtedly a right against
property though not a right to property. Such a right can mature into a full-fledged one if it
is charged on the property either by an agreement or by a decree. Even otherwise, where a
family possesses property, the husband, or in case of his death his heirs are burdened with
the obligation to maintain the widow and, therefore, the widow's claim for maintenance is
not an empty formality but a pre-existing right.
(2) Section 14(2) which is in the nature of a proviso to Section 14(1) cannot be
interpreted in a way so as to destroy the concept and defeat the purpose which is sought to
be effectuated by Section 14(1) in conferring an absolute interest on the Hindu women and
in doing away with what was here to before known as the Hindu women's estate. The
proviso will apply only to such cases which flow beyond the purview of the Explanation
to Section 14(1).
(3) That the proviso would not apply to any grant or transfer in favour of the widow
hedged in by limitation or restrictions, where the grant is merely in recognition or
declaration of a pre-existing right, it will apply only to such a case where a new right
which the female did not possess at all is sought to be conferred on her under certain
limitations or exceptions. In fact in such a case even if a conditional grant is made to a
male, he would be bound by the condition imposed. The proviso wipes out the distinction
between a male and a female in this respect.
64. The contrary view taken by the Madras, Orissa, Andhra Pradesh. Allahabad and
Jammu & Kashmir High Courts proceeds on the following grounds:
(1) That a widow's claim to maintenance is merely an inchoate or incomplete right having
no legal status, unless the widow gets a property in lieu of maintenance or unless a charge
is created in a particular property the claim for maintenance cannot be legally enforced.
Thus, where under a grant, compromise, transfer or a decree, a property is allotted to the
widow in lieu of maintenance, it is not the recognition of any pre-existing right but it
amounts to conferment of a new right for the first time which in fact did not exist before
the said demise. This view is really based on the provisions of the Hindu Women's Rights
to Property Act, 1937. under which the widow has got the right to get a share of her son in
lieu of partition and even otherwise she is entitled to her share in the joint Hindu family
property on partition. These High Courts, therefore, seem to be of the opinion that in view
of the provisions of the Hindu Women's Rights to Property Act, the widow in claiming a
share in the property has a pre-examine right which is recognised by law, namely, the Act
of 1937. The same, however, cannot be said of a bare claim to maintenance which has not
been recognised as a legal right and which can mature into a legally enforceable right only
under a grant or demise. This view suffers from a serious fallacy, which is based on a
misconception of the true position of a Hindu widow's claim for maintenance It has been
seen from the discussion regarding the widow's claim for maintenance and her status in
family that under the pure Sastric Hindu Law the widow is almost a co-owner of the
properties with her husband and even before the Act of 1937 she was entitled to the share
of a son on the death of her husband after partition according to some schools of Hindu
Law. The Act of 1937 did not introduce any new right but merely gave a statutory
recognition to the old Sastric Hindu Law on the subject. In this respect the Act of 1937 is
very different from the Act of 1956, the latter of which has made a revolutionary change
in the Hindu Law and has changed the entire complexion and concept of Hindu women's
estate. In these circumstances, therefore, if the widow's claim for maintenance or right to
get the share of a son existed before the Act of 1937, it is futile to dub this right as flowing
from the Act of 1937. The second fallacy in this view is that the Court failed to consider
that the claim for maintenance is an important right which is granted to the widow under
the Sastric Hindu Law which enjoins the husband to maintain his wife even if he has no
property. Where he has a property the widow has to be maintained from that property so
much so that after the death of her husband any one who inherits that property takes the
property subject to the burden of maintaining the widow. Even where the property is
transferred for payment of family debts and the transferee has the notice of the widow's
claim for maintenance, he has to discharge the burden of maintaining the widow from the
property sold to him. Thus the nature and extent of the right of the widow to claim
maintenance is undoubtedly a pre-existing right and it is wrong to say that such a right
comes into existence only if the property is allotted to the widow in lieu of maintenance
and not otherwise.
65. Another reasoning given by the courts taking the contrary view is that Sub-section (2)
being in the nature of a proviso to Section 14(1) all grants with conditions take the case
out of Section 14(1). This, as we have already pointed out, is based on a wrong
interpretation of the scope and ambit of Sub-section (2) of Section 14.
66. Lastly, the contrary view is in direct conflict with the observations made by this Court
in the cases referred to above, where a grant in lieu of maintenance of the widow has been
interpreted as being in recognition of a pre-existing right so as to take away the case from
the ambit of Sub-section (2).
67. For these reasons and those given here to before, we choose to prefer the view taken
by Palekar, J., in B. B. Patil v. Gangabai MANU/MH/0100/1972 : AIR1972Bom16
(supra) which appears to be more in consonance with the object and spirit of the 1956 Act.
We, therefore, affirm and approve of the decisions of the Bombay High Court in B. B.
Patil v. Gangabai; of the Andhra Pradesh High Court in Gadam Red-dayya v. Varapula
Venkataraiu MANU/AP/0135/1965 : AIR1965AP66 ; of the Mysore High Court in H.
Venkanagouda v. Hanamanagouda AIR 1972 Mys 286; of the Patna High Court in
Sumeshwar Mishra v. Swami Nath Tiwari MANU/BH/0063/1970 : AIR1970Pat348 ; of
the Punjab High Court in Smt Sharbati Devi v. Hiralal AIR 1964 Pun 114 and Calcutta
High Court in Sasadhar Chandra Dey v. Smt. Tara Sundari Dasi MANU/WB/0093/1962 :
AIR1962Cal438 (supra) and disapprove the decisions of the Orissa High Court in Narayan
Patra v. Tara Patrani MANU/OR/0045/1970 : AIR1970Ori131 ; Andhra Pradesh High
Court in Gopisetty Kondaiah v. Gunda Subbarayudu ILR (1968) A P 621; Madras High
Court in S. Kachapalaya Gurukkal v. V. Subramania Gurukkal AIR 1972 Mad 279 and
Gurunadham v. Sundrarajulu MANU/TN/0308/1967 : AIR1967Mad429 ; of the
Allahabad High Court in Ram Jag Missir v. Director of Consolidation, U. P.
MANU/UP/0033/1975 : AIR1975All151 and in Ajab Singh v. Ram Singh AIR 1959 J K
92 of the Jammu & Kashmir High Court.
68. Lastly strong reliance was placed by Mr. Natesan counsel for the respondents on a
decision of this Court in Smt. Naraini Devi v. Smt. Ramo Devi MANU/SC/0545/1975 :
[1976]3SCR55 to which one of us (Fazal Ali, J.,) was a party. This case is no doubt
directly in point and this Court by holding that where under an award an interest is created
in favour of a widow that she should be entitled to rent out the property for her lifetime, it
was held by this Court that this amounted to a restricted estate under Section 14(2) of the
1956 Act. Unfortunately the various aspects, namely, the nature and extent of the Hindu
women's right to maintenance, the limited scope of Sub-section (2) which is a proviso to
Sub-section (1) of Section 14 and the effect of the Explanation etc., to which we have
adverted in this judgment, were neither brought to our notice nor were argued before us in
that case. Secondly, the ground on which this Court distinguished the earlier decision of
this Court in Badri Pershad v. Smt. Kanso Devi MANU/SC/0293/1969 : [1970]2SCR95
(supra) was that in the aforesaid decision the Hindu widow had a share or interest in the
house of her husband under the Hindu Law as it was applicable then and, therefore, such a
share amounted to a pre-existing right. The attention of this Court, however, was not
drawn to the language of the Explanation to Section 14(1) where a property given to a
widow at a partition or in lieu of maintenance had been placed in the same category, and
therefore, the reason given by this Court does not appear to be sound. For the reasons that
we have already given, after taking an overall view of the situation, we are satisfied that
the Division Bench decision of this Court in Naraini Devi's case (supra) was not correctly
decided and is, therefore, overruled.
69. Indeed, if the contrary view is accepted, it will, in my opinion, set at naught the
legislative process of a part of Hindu Law of the interstate succession and curb the social
urges and aspirations of the Hindu women, particularly in the International Year of
Women, by reviving a highly detestable legacy which was sought to be buried by the
Parliament after independence so that the new legislation may march with the times.
70. We would now like to summaries the legal conclusions which we have reached after
an exhaustive considerations of the authorities mentioned above on the question of law
involved in this appeal as to the interpretation of Section 14(1) and (2) of the Act of 1956.
These conclusions may be stated thus:
(1) The Hindu female's right to maintenance is not an empty formality or an illusory claim
being conceded as a matter of grace and generosity, but is a tangible right against property
which flows from the spiritual relationship between the husband and the wife and is
recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even
by the earlier Hindu jurists stratify from Yajnavalkya to Manu. Such Weight may not be a
right to property but it is a right against property and the husband has a personal obligation
to maintain his wife and if he or the family has property, the female has the legal right to
be maintained there from. If a charge is created for the maintenance of a female, the said
right becomes a legally enforceable one. At any rate, even without a charge the claim for
maintenance is doubtless a pre-existing right so that any transfer declaring or recognising
such a right does not confer any new title but merely endorses or confirms the pre-existing
rights.
(2) Section 14(j) and the Explanation thereto have been couched in the widest possible
terms and must be liberally construed in favour of the females so as to advance the object
of the 1956 Act and promote the socio-economic ends sought to be achieved by this long
needed legislation.
(3) Sub-section (2) of Section 14 is in the nature of a proviso and has a field of its own
without interfering with the operation of Section 14(1) materially. The proviso should not
be construed in a manner so as to destroy the effect of the mean provision or the protection
granted by Section 14(1) or in a a way so as to become totally inconsistent with the main
provision.
(4) Sub-section (2) of Section 14 applies to instruments, decrees, awards, gifts etc. which
create independent and new titles in favour of the females for the first time End has no
application where the instrument concerned merely seeks to confirm, endorse, declare or
recognise pre-existing rights. In such cases a restricted estate in favour of a female is
legally permissible and Section 14(1) will not operate in this sphere. Where, however, an
instrument merely declares or recognises a pre-existing right, such as a claim to
maintenance or partition or share to which the female is entitled, the Sub-section has
absolutely no application and the female's* limited interest would auto metrically be
enlarged into an absolute one by force of Section 14(1) and the restrictions placed, if any,
under the document would have to be ignored. Thus where a property is allotted or
transferred to a female in lieu of maintenance or a share at partition, the instrument is
taken out of the ambit of Sub-section (2) and would be governed by Section 14(1) despite
any restrictions placed on the powers of the transferee.
(5) The use of express terms like "property acquired by a female Hindu at a partition", "or
in lieu of maintenance" "or arrears of maintenance" etc. in the Explanation to Section
14(1) clearly makes Sub-section (2) inapplicable to these categories which have been
expressly excepted from the operation of Sub-section (2).
(6) The words "possessed by" used by the Legislature in Section 14(1) are of the widest
possible amplitude and include the state of owning a property even though the owner is
not in actual or physical possession of the same. Thus, where a widow gets a share in the
property under a preliminary decree before or at the time when the 1956 Act had been
passed but had not been given actual possession under a final decree .the property would
be deemed to be possessed by her and by force of Section 14(1) she would get absolute
interest in the property. It is equally well settled that the possession of the widow,
however, must be under some vestige of a claim, right or title, because the section does
not contemplate the possession of any rank trespasser without any right or title.
(7) That the words "restricted estate" used in Section 14(2) are wider than limited interest
as indicated in Section 14(1) and they include not only limited interest, but also any other
kind of limitation that may be placed on the transferee.
71. Applying the principles enunciated above to the facts of the pre-sent case, we find-
(i) that the properties in suit were allotted to the appellant Tulasumma on July 30. 1949
under a compromise certified by the Court;
(ii) that the appellant had taken only a life interest in the properties and there was a clear
restriction prohibiting her from alienating the properties.
(iii) that despite these restrictions, she continued to be in possession of the properties till
1956 when the Act of 1956 came into force; and
(iv) that the alienations which she had made in 1960 and 1961 were after she had acquired
an absolute interest in the properties.
72. It is therefore, clear that the compromise by which the properties were allotted to the
appellant Tulasamma in lieu of her maintenance were merely in recognition of her right to
maintenance which was a pre-existing right and, therefore, the case of the appellant would
be taken out of the ambit of Section 14(2) and would fall squarely within Section 14(1)
read with the Explanation thereto. Thus the appellant would acquire an absolute interest
when she was in possession of the properties at the time when the 1956 Act came into
force and any restrictions placed under the compromise would have to be completely
ignored. This being the position, the High Court was in error in holding that the appellant
Tulasamma would have only a limited interest and in setting aside the alienations made by
her. We are satisfied that the High Court decreed the suit of the plaintiffs on an erroneous
view of the law.
73. The result is that the appeal is allowed, the judgment and decree of the High Court are
set aside, the judgment of the District Judge, Nellore is hereby restored and the plaintiffs'
suit is dismissed. In the peculiar circumstances of this case and having regard to the
serious divergence of judicial opinion of the various Courts in India, we would make no
order as to costs in this Court
Kalawatibai v. Souryabai, AIR 1991 SC 1581
Summary: Section 14 of the Hindu Succession Act, 1956 does not obliterate all Hindu
Law. It enlarges the estate of a limited owned but does not deprive revisioners of
their other rights
Hon'ble Judges: Dr. Dr. T.K. Thommen and R.M. Sahai, JJ.
ORDER
R.M. Sahai, J.
1. Litigation, between two sisters, by way of cross-suits, one, for permanent injunction by
the appellant basing her claim on gift deed executed in 1954 by her mother, a Hindu
widow, of the entire estate inherited by her from her husband, and another for declaration
and partition by respondent assailing validity of the gift deed and claiming reversioner's
right after death of the mother in 1968, has reached this Court by grant of special leave
against judgment of the Bombay High Court in Second Appeal raising a legal issue of
seminal importance as to nature of right and title of female donee of Hindu widow's estate
after coming into force of Hindu Succession Act (hereinafter referred to as the Act).
2. Facts are simple. Stakes, also, are not substantial, but the issue is of far-reaching
consequence. Could a Hindu widow alienate by gift the entire estate inherited from the
husband, in favour of one of the female reversioners prior to enforcement of Act 20 of
1956. In case answer to issue is in the affirmative then what was the nature of right that
the donee got under law? Did she become an owner of a widow's estate, a limited owner,
an owner with some right or title, so as to acquire rights of absolute ownership under
Section 14 of the Act or a trespasser and if trespasser then whether she acquired rights by
adverse possession by perfecting her rights against the donor only or it was essential to
prescribe rights against reversioners as well?
3. Shorn of details, and various issues raised in the suits, suffice it to mention that even
though the trial court found the gift deed to have been duly attested and executed after
obtaining permission from the appropriate authority the claim of appellant, for permanent
injunction, was decreed not on Section 14 of the Act as the widow who had executed the
gift deed in 1954 was, 'incompetent to alienate widow's estate by gift permanently' under
Hindu Law but on adverse possession and estoppel. The appellate court while affirming
the finding on Section 14 of the Act allowed the appeal and dismissed the suit as 'adverse
possession against the widow is not adverse against reversioners, and the next reversioner
is entitled to recover the possession of the property or his share in it within 12 years from
the date of the death of the widow'. It was further held that the appellant could not acquire,
any right by, 'estoppel under Section 41 of the Transfer of Property Act against the
reversioners by reason of the widow's conduct'. In view of the concurrent findings of two
courts below on Section 14 of the Act the High Court appears to have been invited to
adjudicate, only, on the question if the appellate court was justified in reversing the
finding on adverse possession which it disposed of, treating it as finding of fact, and
observing that possession of appellant, 'must be deemed to be on behalf of other co-
sharers in the absence of any evidence before ouster of the other sisters'. Wheher the High
Court was justified in not examining the question of adverse possession is not necessary to
be gone into as the appellant can succeed, only, if the finding recorded by the first
appellate court that the appellant could not acquire any rights against reversioners during
lifetime of the widow is found to be erroneous in law.
4. But before doing so the claim of the appellant that she became an absolute owner under
Section 14 of the Act, reiterated, once again, in this Court, may be examined as it is a
question of law. A full bench of the Delhi High Court in Smt. Chinti v. Smt. Daultu
MANU/DE/0044/1968 : AIR1968Delhi264 held that possession of a female donee in
pursuance of gift deed executed by her mother could not be characterised as illegal or of
trespasser, therefore, she being a female Hindu 'possessed' of the property on the date
Hindu Succession Act came into force became an absolute owner under Section 14 of the
Act. When more or less similar matter came up before Patna High Court in Sulochana
Kuer v. Doomati Kuer MANU/BH/0064/1970 : AIR1970Pat352 the court, held that, "a
Hindu woman's estate as such is not capable of transfer either by sale or gift. The mere
concept of such an estate is not transferred on the transfer of properties attaching to the
estate". In Anath Bandhu v. Chanchala Bala MANU/WB/0066/1976 : AIR1976Cal303 the
Calcutta High Court, specifically, dissented from the Delhi decision and held that,
"Section 14 wanted to benefit those female Hindus who were limited owners in the then
existing Hindu Law before the commencement of the Act. In the present case the limited
owner Motibala having transferred the limited interest to Chanchala before the passing of
the Act, it cannot be said that Chanchala's limited interest, if any, ripened into absolute
interest in terms of Section 14 of the Act". A full bench of Punjab and Haryana High
Court in Parmeshwari v. Santokhi AIR 1977 Punjab 141 too, did not agree with Delhi
High Court. It went into the background of legislation, the original form of the bill, ambit
of the explanation, anomalies that would result if, even, female alienee was deemed to be
a limited owner and held, "that Section 14 of the Act was not intended to benefit the
alienees of a limited Hindu owner". Similar view was taken by Andhra Pradesh and
Madras, High Court in AIR 1957 AP 280 and AIR 1958 Madras, Gaddam Venkayama v.
Gaddam Veeryya, and Marudakkal v. Arumugha. Thus according to Delhi High Court a
donee of even entire Hindu widow's estate became absolute owner under Section 14 of the
Act whereas according to Patna, Calcutta, Punjab, Madras and Andhra Pradesh High
Courts, rights of a female donee under Hindu Law, prior to coming into force of the Act
did not get enlarged under Section 14 of the Act and it did not preclude reversioners from
assailing validity of the gift deed. To ascertain which view accords more to the objective
sought to be achieved by the Act it appears necessary to extract Section 14 which reads as
under:
(1) Any property possessed by a female Hindu, whether acquired before or after the
owner.
Explanation In this Sub-section, "property" includes both movable and immovable

of maintenance, or arrears of maintenance, or by gift from any person, whether a relative
or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or
by prescription, or in any other manner what soever, and also any such property held by
her as Stridhana immediately before the commencement of this Act.
Needless to emphasise that the section was a step forward towards social amelioration of
women who had been subjected to gross discrimination in matter of inheritance. Even
when the Hindu Women's Rights to Property Act XVIII of 1937 was enacted it succeeded
partially only. While providing for inheritance and devolution to widow and even widow
of predeceased son the Act could not go beyond creating limited interest or a Hindu
woman's estate. Absolute ownership of female heir by effacing inequality and putting
male and female heirs at par in matter of inheritance was achieved by the Succession Act.
A female Hindu inheriting property under the Act, also, became a stock of descent. In
Eramma v. Verrupana MANU/SC/0365/1965 : [1966]2SCR626 , this Court observed,
"The object of the section is to extinguish the estate called 'limited estate' or 'widow's
estate' in Hindu Law and to make a Hindu woman, who under the old law would have
been only a limited owner, a full owner of the property with all powers of disposition and
to make the estate heritable by her own heirs and not revertible to the heirs of the last male
holder.
5. But did the legislature intend to extend same benefit, namely, enlarge the estate, held,
on the date the Act came into force by any or every female Hindu into full and absolute
estate irrespective of whether she was a limited owner or not. According to learned
Counsel for appellant the answer should be given in affirmative. He urged that since the
age long traditional limitation on inheritance and disposition by a female was removed and
the section was widely worded by using broad and comprehensive expressions such as,
'any property, 'possessed', 'acquired before or after the commencement of the Act' and
each of these expressions have received expansive interpretations by the Court there was
no reason not to give similar interpretation to the word female Hindu. The learned Counsel
submitted that there was no warrant to confine scope of the section to limited owners. He
argued that if the argument of the respondent was accepted it shall result in substitution of
the word 'female Hindu' with 'limited owner' which would be contrary to legislative
intention, the social philosophy on which the section was founded and the principle of
interpretation. Relying on the explanation, to the section, it was urged that it not only
explained meaning of the word 'property' but it left no room for doubt that a female Hindu
possessed of any property, which satisfied the extended meaning on the date the Act came
into force, became an absolute owner. It was further argued that the expression 'limited
owner' has been used in the section not to whittle down the otherwise simple and plain
meaning of the words 'female Hindu' by introducing narrow concept of widows' estate or
limited owner but to put beyond doubt the nature and status of rights of females after the
Act. Support was also drawn from the marginal note of the section and it was urged that
the words, 'property of a female Hindu to be her absolute property', was yet another
indication to interpret the word 'female Hindu' widely, so as to include in its ambit a donee
from a limited owner.
6. That the section is not very happily worded, does not admit of any doubt. It was
commented upon by this Court in V. Tulsamma v. Shesha Reddy MANU/SC/0380/1977 :
[1977]3SCR261 and it was observed that the section was, "a classic instance of statutory
provision which, by reason of its inapt draftsmanship has created endless confusion for
litigants". May be so but the answer to the issue must emerge from the section, its
background, purpose of its enactment and the reason for use of such wide expression.
Nothing turns on the marginal note as it is usually not resorted to for construing meaning
of a section, particularly, when the language is plain and simple. It is well settled that a
section has to be read in its entirety as one composite unit without bifurcating it or
ignoring any part of it. Viewed from this perspective the section, undoubtedly, comprises
of two parts, one descriptive, specifying the essential requirements for applicability of the
section, other consequences arising out of it. One cannot operate without the other.
Neither can be read in isolation. Both are integral parts of the section. Mere provision that
any property possessed by a female Hindu on the date the Act came into force shall be
held by her would have been incomplete and insufficient to achieve the objective of
removing inequality amongst male and female Hindus unless it was provided that the
otherwise limited estate of such a female would become enlarged into full or absolute
estate. Any other construction would result in not only ignoring the expression, 'and not as
a limited owner' which would be against principle of interpretation but also against the
historical background of enactment of the section. Whereas if it is read in its entirety with
one part throwing light on another then the conclusion is irresistible that a limited owner
became a full owner provided she was in possession of the property on the date of
enactment of the Act.
7. Property acquired by a female Hindu before the Act came into force comprised,
broadly, of inherited property or stridhana property acquired by her from a male or female.
Nature of her right in either class of property, unlike males, depended on the school by
which she was governed as well as whether it came to her by devolution or transfer from a
male or female. This invidious discrimination was done away with after coming into force
of 1956 Act and the concept of Hindu widows' estate or limited estate or stridhana ceased
to exist by operation of Section 14 read with Section 4 of the Act which has an overriding
effect. A female Hindu who but for the Act would have been a limited owner became full
owner. But the section being retrospective in operation the meaning of female Hindu prior
to 1956 has to be understood in the light of Hindu Law as it prevailed then. The section
enlarged the estate of those female Hindu who otherwise would have been limited owners.
This result follows by reading the first part with the last which uses the expression, 'held
by her as full owner thereof and not as a limited owner'. To put it differently a limited
owner became a full owner provided she was a female Hindu who was possessed of any
property acquired before the commencement of the Act. Therefore, mere being female
Hindu was not sufficient. She should have been of that class of female Hindus who could
on existence of other circumstances were capable of becoming full owners. Further the
Act being applicable by virtue of Section 2 to not only Hindus by religion but also to
Buddhists, Jains or Sikhs and to any person who was not a Muslim, Christian, Parsi or Jew
it was but necessary to use an expression of such wide connotation as female Hindu
because by virtue of Sub-section (3) of the section the word 'Hindu' in any portion of the
Act, which includes Section 14, the word had to be understood as including not only a
person who was Hindu by religion but even others. However, the objective being to
remove disparity and injustice to which females were subjected under Hindu Law the
section limits its operation to such female Hindus who were limited owners. Reference to
the explanation by the learned Counsel was also not very apposite. It was appended to
widen the meaning of property by adding to it the inherited property, and the property
which came to be possessed by a female Hindu in manner mentioned in it. Its effect was
that a female Hindu became absolute owner not only in respect of inherited property but
even of property received by way of gift or on partition or in lieu of maintenance etc.
provided she was a limited owner. And not that it enlarged the estate of even those who
were not limited owner. Any other construction would militate against the, otherwise,
clear meaning of Sub-section (1).
8. Although this section has come up for interpretation, by this Court, on various
occasions in different context but in none of these cases the Court had occasion to
examine the ambit of expression female Hindu and whether it extended to females other
than limited owner. Since in every case whether it was decided for or against it was the
widow who was alive on the date the Act came into force and she being a limited owner
the decision turned on if she was 'possessed' of the property so as to become full owner.
For instance in Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva and Ors.
MANU/SC/0102/1958 : AIR1959SC577 the widow was held to have acquired rights as
the adoption made by her having been found to be invalid she was deemed to be in
constructive possession and thus 'possession' of the property on the date the Act came into
force. Mangal Singh v. Smt. Rattno MANU/SC/0205/1967 AIR 1967 SC 1786 was
another case where widow's constructive possession enured to her benefit as she having
been dispossession by her collaterals in 1954 and filed a suit for recovery of possession
before the Act came into force was held to be 'possession' of the property so as to entitle
her to become full owner. Munna Lal v. Raj Kumar AIR 1962 SC 1495 was a case where
the share of the widow was declared in preliminary decree. No actual division of share had
taken place, yet the court held that it was property 'possessed' by her on the date the Act
came into force. In Sukhram v. Gauri Shankar MANU/SC/0208/1967 : [1968]1SCR476 it
was held that a widow was full owner in joint Hindu family property as she became
entitled to the interest which her husband had by virtue of Hindu Women Right to
Property Act. The Court ruled that even though a male was subject to restrictions qua
alienation on his interest in joint Hindu family property, but a widow acquiring an interest
by virtue of the Act did not suffer such restriction. V. Tulsamma v. Shesha Reddy
MANU/SC/0380/1977 : [1977]3SCR261 and Bai Vijia v. Thakorbhai Chelabhai [1979] 3
SCC 311 were cases where the widow was 'possessed' of the property in lieu of
maintenance, and therefore, she was held to be full owner. In all these cases since the
widow was in possession, actual or constructive, on the date the Act came into force she
was held to be a female Hindu 'possessed' of the property, and consequently, her limited
ownership stood converted into full ownership by operation of law. Even in Eramma v.
Verrupana (supra) and Kuldeep Singh v. Surain Singh [1988] Andhra Law Times, where
the benefit was denied under Section 14 the female Hindus were widows but they were not
held to be 'possessed' of the property because their possession was not backed by even the
remotest vestige of title. In Eramma's case (supra) the benefit was denied as Hindu
Women's Right to Property Act being not applicable on the date the succession opened she
could not be held to be possessed of the property. And in Kuldeep Singh's case (supra) she
had been divested of her interest as a result of transfer made by her. Contest in all these
cases was between reversioner and the widow herself or the person claiming through her.
Review of these decisions indicates that this Court has consistently taken the view as
stated in Bai Vijia v. Thakorbhai Chelabhai,:
For the applicability of Sub-section, two conditions must co-exist, namely,
(i) The concerned female Hindu must be possessed of property; and
(ii) Such property must be possessed by her as a limited owner.
9. Mention is necessary to be made in this connection about observation in Gulwant Kaur

v. Mohinder Singh MANU/SC/0514/1987 : [1987]3SCR576 that the Court in Bai Vijia's
case did not support, to lay down, that, "what was enlarged by Sub-section (1) of Section
14 into a full estate was the Hindu woman's estate known to Hindu Law. When the Court
uses the word, 'limited estate', the words are used to connote a right in the property to
which possession of the female Hindu may be traced, but which is not a full right of
ownership". Gulwant Kaur's case was concerned with acquisition of right by wife, on
entrustment of property in lieu of maintenance, after 1956, when the concept of widows'
estate or limited estate or even stridhana had ceased to exist. Therefore, what was
necessary was being possessed of property, actual or constructive, by female Hindu under
some right or title. Whereas Bai Vijia's case was concerned with acquisition of right in
property held in lieu of maintenance before 1956. Therefore a female Hindu could become
absolute owner only if she was limited owner. Sub-section of Section 14 deals with right
of female Hindu both before and after the Act came into force. Female Hindu could
become absolute owner of property possessed by her on the date the Act came into force
only if she was a limited owner whereas she would become absolute owner after 1956 of
the property of which she would otherwise have been a limited owner.
10. Reference may be made to Maharaja Filial Lakshmi Ammal v. Maharaja Pillai T.
Pilllai MANU/SC/0118/1987 : [1988]1SCR780 where this Court while examining right of
wife put in exclusive possession of the property with the right to take the income for her
maintenance was held to have become full owner under Section 14(1) as she entered into
possession after the death of her husband in 1955 and was in possession in 1956. The
Court held that the right to utilise income for her maintenance must be "presumed to have
resulted in property being given to her in lieu of maintenance". On this finding the
property being possessed on the date the Act came into force as contemplated in the
explanation, the widow being a limited owner became a full owner and the gift executed
by her in favour of her daughter after 1956 was unexceptionable. The Court, however,
while repelling the submission advanced on superficial conflict in Gulwant Kaur and Bai
Vijia reiterated what was observed in Gulwant Kaur's case. As already discussed Gulwant
Kaur's case related to acquisition of property after 1956 whereas in Bai Vijia it was
acquired before 1956. The observations made in the two decisions must be understood in
that context. Moreover in Gulwant Kaur's case the ratio was founded on Jaganathan Pillai
v. Kunjithapadam Pillai MANU/SC/0415/1987 : [1987]2SCR1070 a decision which shall
be adverted to later. But it too was concerned with acquisition after 1956. And the bench
while discussing scope of Section 14(1) observed:
that the limited estate or limited ownership of a Hindu female would enlarge into an
absolute estate or full ownership of the property in question in the following fact situation:
Where she acquired the limited estate in the property before or after the commencement of
the Act provided she was in possession of the property at the time of the coming into force
of the Act on June 17, 1956.
None of these decisions, namely, Gulwant Kaur (supra) or Maharaja Pillai (supra) or
Jagannathan Pillai purported to lay down that the Section 14(1) contemplated enlargement
of estate prior to 1956 of even those females who were not limited owners. According to
Mulla's Hindu Law (sixteenth edition, paragraph 174) every female who took a limited or
restricted estate was known as limited heir. And according to every school except Bombay
every female who succeed as an heir whether to a male or female took a limited estate in
the property. Even in Bombay a female who by marriage entered into Gotra (family) of
the deceased male inherited a limited estate only. And in paragraph 176 it is stated that
incident of estate taken by every limited owner was similar to incident of widow's estate.
Mayne's Hindu Law, (12th edition, paragraph 671) too brings out the same by stating that
the typical form of estate inherited by a woman from a male was compendiously known as
the widow's estate. And the limitation which applied to such estate applied to all estate
derived by a female by descent from a male or female whether she inherited as daughter,
mother, grandmother, sister or as any other relation. Even stridhana property according to
Mulla created limited interest in its successors, except in Bombay in certain circumstances
and a female inheriting stridhana took a limited interest in it and on her death it passed not
to her heirs but to the next stridhana heirs of the female from she inherited.
11. Thus on plain reading of the Section, and its interpretation by this Court in various
decisions a female Hindu possessed of the property on the date the Act came into force
could become absolute owner only if she was a limited owner. This being the legal
position it may now be seen if a Hindu widow could transfer or alienate widow's estate by
way of gift prior to 1956 and if so to what extent. And in such alienation what right or
interest was created in the alienee. Did she become a limited owner so as to become a full
owner under Section 14 of the Act? A Hindu widow succeeding or inheriting any property
from her husband or as widow of predeceased son, held limited interest known as Hindu
women's estate, prior to coming into force of 1956 Act, under the Hindu Women's Right
to Property Act, 1937. Since such an estate could not be alienated under Hindu Law
except in certain circumstances and for specific purpose the holder of the estate was
known as limited owner. The expression 'limited owner' thus could not be understood,
except as it was interpreted and understood in Hindu Law. Could the same be said of a
female donee or alienee? The Delhi High Court assumed that a female donee was a limited
owner, consequently, if she was possessed of the property on the date the Act came into
force and her possession was not 'without title', she became an absolute owner. Basis for
the decision was construction of the word 'possessed' by this Court in Gummalapura
Taggina's case (supra) wherein it was held that the word was used in widest connotation
so that a widow, even if in constructive possession, was entitled to absolute ownership
under Section 14 of the Act. Support was also drawn from converse case of Eramma
(supra) this Court negatived the claim of widow under Section 14 as her possession on the
date the Act came into force was not legal but that of a trespasser. What the High Court
lost sight of was that the claim of widow in Gummalapura's case (supra) was upheld
because the adoption made by her having been found to be invalid she was deemed to be
in constructive possession on the date the Act came into force. And Eramma's case (supra)
was concerned with a widow, who claimed to have inherited through son in State of
Hyderabad where Hindu Women's Rights to Property Act did not apply on the date the
son died. Consequently, it was held that "the provisions of Section 14 of the Act cannot be
attracted in the case of a Hindu female who is in possession of the property of the last
male holder on the date of the commencement of the Act when she is only a trespasser
without any right to property". The High Court overlooked the vital observation made in
earlier part of the judgment to the effect. "In other words, Section 14(1) of the Act
contemplates that a Hindu female who in absence of this provision, would have been
limited owner of the property, will now become full owner of the same by virtue of this
Section.
12. Limited owner commonly means a person with restricted rights as opposed to full
owner with absolute rights. In relation to property absolute, complete or full ownership
comprises various constituents such as the right to possess, actual or constructive, power
to enjoy, that is to determine manner of use extending even to destroying, right to alienate,
transfer or dispose of etc. Any restriction or limitation on exercise of these rights may
result in limited or qualified ownership. For instance restriction on enjoyment of property
or its alienation. Such restriction or limitation may arise by operation of law or by deed or
instrument. The limited ownership of female Hindu in Hindu Law arose as a matter of
law. A Hindu widow, according to different schools, Banaras, Bengal or Mithila and even
in Bombay inherited or succeeded to property whether of male or female as a limited
owner and held a limited estate only. Nature of such estate was explained by the Privy
Council in Janki Ammal v. Narayanaswami [1916] 43 LA. 207 to be, "her right is of the
nature of a right to property, her powers in that character are limited". In Jaisri v. Raj
Diwan Dubey [1961] 2 SCR 559 it was observed by this Court that "when a widow
succeeds as heir to her husband the ownership in the property both legal and beneficial
vests in her". And the restriction on her power to alienate except for legal necessity is
imposed, "not for the benefit of reversioners but is an incident of estate". Thus a Hindu
widow prior to 1956 held the property fully with right to enjoy or even destroy or dispose
it of or alienate it but such destruction or alienation should have been impressed with legal
necessity or for religious or charitable purposes or for spiritual welfare of the husband.
Necessary consequences that flowed from an alienation for legal necessity was that the
property vested in the transferee or alienee, and the reversioners were precluded from
assailing its validity. In Kamala Devi v. Bachu Lal Gupta [1957] SCR 453 this Court after
reviewing various authorities extended this principle to female donee. A gift made within
reasonable limits, in favour of daughter even two years after the marriage but in pursuance
of promise made at time of the marriage was upheld and the reversioners claim was
repelled on permissible alienation under Hindu Law. But what right or title is acquired by
the alienee if transfer is against legal necessity or contrary to law? The authorities appear
to be at one that such transfer being not void but voidable could be avoided by
reversioners including Govt. taking by escheat Collector of Masulipatam v. Cavaly
Vencata [1861] 8 M.I.A. 529. But the widow was held bound by the transfer.
13. In Natwalal Punjabhai and Anr. v. Dadubhai Manubhai and Ors.

MANU/SC/0092/1953 : [1954]1SCR339 , the Court held as under:
The Hindu Law certainly does not countenance the idea of a widow alienating her
property without any necessity merely as a mode of enjoyment as was suggested before us
by Mr. Ayyangar. If such a transfer is made by a Hindu widow it is not correct to say that
the transferee acquires necessarily and in law an interest commensurate with the period of
the natural life of the widow or at any rate with the period of her widowhood. Such
transfer is invalid in Hindu Law, but the widow being the grantor herself, cannot derorate
from the grant and the transfer cannot also be impeached so long as a person does not
come into existence who can claim a present right to possession of the property.
14. Thus if prior to 1956 any alienation was made by a Hindu widow of widow's estate
prohibited by law or being beyond permissible limits, it stripped the widow of her rights
and she could not acquire any rights under Section 14. And so far as alienees were
concerned it could utmost create temporary and transitory ownership precarious in nature
and vulnerable in character open to challenge if any attempt was made to cloud
reversioner's interest. Her possession may be good against the world, her right in property
may not be impeachable by the widow but her interest qua the reversioner was to continue
in possession at the maximum till the lifetime of her donor or transferor. It was life
interest, loosely, as the duration of interest created under invalid transfer came to an end
not on death of donee or transferee but donor or transferor. So far as the male alienees
from limited owners, that is female Hindu prior to 1956, are concerned, it was held by this
Court in Radhey Krishan Singh and Ors. v. Shiv Shankar Singh and Ors.
MANU/SC/0259/1973 : AIR1973SC2405 that, the alienation could be challenged by the
reversioner as there was nothing in the Hindu Succession Act which has taken away such
a right. A female alienee did not enjoy better or different status as the Hindu Law applied
universally and uniformaly both to male and female alienees. She did not become limited
owner or holder of a limited estate as understood in Hindu Law. And the alienation
without legal necessity could be assailed by the reversioner. No change was brought about
in this regard by the Act. If the alienation was valid i.e., it was for legal necessity or
permitted by law then the donee became an owner of it and the right and title in the
property vested in her. But if it was contrary to law, as in this case the gift being of entire
widow's estate, then it did not bind the reversioner who could file a suit after the death of
the widow. And the appellant cannot claim to have acquired title to the property under the
gift deed. Nor had she become a limited owner under Hindu Law which could mature into
full ownership when the Act came into force. In fact such possession was not backed by
any title as against reversioner which could preclude her from bringing the suit for
declaration.
15. Reliance was placed on observations in Jagannathan Pillai v. Kunjithapadam Pillai and
Ors. MANU/SC/0415/1987 : [1987]2SCR1070 that, "To obviate hair splitting, the
legislature has made it abundantly clear that whatever be the property possessed by a
Hindu female, it will be of absolute ownership and not of limited ownership
notwithstanding the position under the traditional Hindu Law", and it was submitted that
the appellant satisfied the criteria to entitle her to claim that her estate irrespective of its
nature under Hindu Law got enlarged under Section 14 of the Act. An observation without
reference to facts discloses neither the law nor the ratio-de-cedindi which could be taken
assistance of. Factually, the issue was the effect of re-transfer by the alienee in favour of
the widow after 1956. And the answer was that, "When the transaction was reversed and
what belonged to her was retransmitted to her, what the concerned Hindu female acquired
was a right which she herself once possessed namely, a limited ownership (as it was
known prior to the coming into force of the Act) which immediately matures into or
enlarges into a full ownership in view of Section 14(1) of the Act on the enforcement of
the Act. The resultant position on the reversal of the transaction would be that the right,
title and interest that the alienee had in the property which was under 'eclipse' during the
subsistance of the transaction had re-emerged on the disappearance of the eclipse". Truly
speaking, the interpretation of Sub-section (1) of Section 14 was no different from the
other decisions as is clear from the extracts quoted earlier. It is thus clear that an alienee
from a Hindu widow prior to 1956 did not acquire limited estate or widow's estate nor she
was a limited owner who could get any benefit under Section 14 of the Act. It was not
even a life estate except loosely, as the right to continue in possession was not related with
her span of life but of the transferor that is the Hindu widow. The decision of Delhi High
Court, therefore, does not lay down the law correctly. The other view taken by Patna,
Calcutta and Punjab and Haryana High Courts that Sub-section (1) of Section 14 did not
extend the benefit of full ownership to female alienees brings out the objective of the
section appropriately and correctly.
16. Nor is the decision in Badri Pershad v. Smt. Kanso Devi MANU/SC/0293/1969 :
[1970]2SCR95 of any assistance. It was a case where the widow entitled to the interest of
her husband got certain property prior to 1956 as a result of arbitration with specific
stipulation that she shall have only life interest. This was ignored and she was held,
rightly, to be the absolute owner whose rights were governed by Section 14(1) and not
14(2).
17. Further Hindu Succession Act did not obliterate Hindu Law. What has ceased to be
operative after coming into force of the Act under Section 4 is text or rule etc. for which
provision is made in the Act. And under Section 4(2) any law in force immediately before
the commencement of the Act ceased to have effect if it was inconsistent with any
provision of the Act. Therefore except to the extent provision has been made in Section
14, that is, enlargement of the estate of limited owner, the Hindu Law in other regards
remained operative. There is no provision in the Act which deprives reversioners of their
rights except to the extent mentioned in Section 14. In Radha Rani v. Hanuman Prasad
MANU/SC/0359/1965 : [1966]1SCR1 this Court overruled the decisions of the Allahabad
and Patna High Courts that there were no reversioners or reversionary rights after 1956
and held, "it is open to reversioner to maintain a suit for declaration that an alienation
made by a Hindu female limited owner before the coming into force of Hindu Succession
Act 1956 was without legal necessity and was not binding upon reversioners".
18. Coming now to the issue of adverse possession the High Court was not justified in
concluding that it was a question of fact. Possession under a gift deed which was found to
be invalid, as it was not permitted under Hindu Law was on general principle contrary to
law, and as such could be adverse. When did it become adverse to the donor and what
circumstances constitute adverse possession against the donor is an aspect which does not
arise for consideration as, even assuming in favour of the appellant, the question is, if
adverse possession against donor was sufficient to clothe her with right or title in the
property so as to deprive the reversioners of their right to claim the property after the
death of the widow? In Radha Rani's case (supra) this Court held.
In the case of an alienation by Hindu widow without legal necessity, the reversioners were
not bound to institute a declaratory suit during the lifetime of the widow. They could wait
till her death and then sue the alienee for possession of the alienated property trating the
alienation as a nullity.
Therefore, it is obvious that the appellant could not acquire any right by adverse
possession against reversioner during lifetime of her mother. Her claim was rightly
negatived.
19. Before parting with this case, we express our thanks to Sri Padmanabhan, Senior
Advocate who, on our request rendered valuable assistance. We are thankful to Sri Parekh
and Sri Narasimhulu also for their assistance.
20. The result is that this appeal fails and is dismissed. But there shall be no order as to
costs.
C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, (1996) 8 SCC 525
Summary: Under Section 14(1) of the Hindu Succession Act, 1956, the pre-existing
right to maintenance of a widow from property left by her husband had been made
absolute.
Hon'ble Judges: K. Ramaswamy, S. Saghir Ahmad and G.B. Pattanaik, JJ.
JUDGMENT
1. Leave granted.
2. We have heard the counsel on both sides.
3. The appeal by special leave arises from the Judgment dated July 2, 1992 of the Division
Bench of the Madras High Court rendered in LPA No. 161 of 1988.
4. The appellants are the alienees from Sellathachi, widow of Somasundram Pillai who
had executed a will, Ex-A43 on 16.7.1950 bequeathing the suit properties to his wife and
his cousin's widow Janakathache mentioning there under as follows :
Whereas I have no male or female issues and may wife (1) Sellathachi and (2) Janaka
Thathachi, wife of my senior paternal uncles' son Thabasuya Pillai are living with me and
in my family and other than the other 2 persons, there is none else in my family. Amongst
the aforesaid persons, the aforesaid Janaka Thachi have got only maintenance relationship
and none else in my family have any right in the share or have maintenance relationship. I
am duty bound to provide maintenance for the aforesaid two persons and I have no other
duty to be performed. Therefore, after my lifetime, the under mentioned A Schedule
property valued at Rs. 2000 shall be got by the aforesaid two persons and shall be enjoyed
in equal shares without any right to alienate the same and perform the charities as per their
wish and after the lifetime of both the aforesaid persons, Govindarasan Pillai, s/o Peria
Pillai, of the aforesaid Eduvankudi Village shall be the Trustee of a Schedule property and
with the income derived from the undermentioned land shall perform the Pooja to the idol
at Swamimalai Sri Swaminatha Swami Deveasthanam, Kumbakonam Taluk, every month
on the Krithigai Satar Day and also do the charity of power poor feeding on the aforesaid
day, and also shall put up the lamps every day at the Subramania Swamiar Temple of the
aforesaid Edavankudi village and perform the Pooja and the Charity of poor feeding every
month on the Krithigai Star Day. Further in respect of the undermentioned Schedule
Property valued at Rs. 1000, after may lifetime, the aforesaid Govinda Rajan Pillai himself
shall be the trustee and from the revenue derived from the aforesaid property shall perform
the Pooja and the charity of poor feeding as detailed above to the aforesaid Swami Natha
Swami and the aforesaid Subramania Swamy. Amongst the aforesaid Sellathachi and
Janaka Thachi, if one of the persons were to die survived by the other, the surviving
member shall have the right to enjoy the A schedule property in its entirely. This Deed of
Will shall come into force only after my lifetime, and I shall have the right and authority
to change or cancel this Deed of will during my lifetime.
5. Somasundaram Pillai died in September 1950. The legatees Sel-lathichi and another had
come into possession of the properties. Janaka Thathachi died in the year 1960. In 1970
Shellathachi and appointed a power of attorney-holder who had alienated the suit
properties and the appellants had purchased them under registered sale deed. The suit was
filed for declaration that the legatees having succeeded to limited estate under the will, the
alienations made by Sellathachi were illegal. The trial Court decreed the suit. The learned
single Judge allowed the appeal and dismissed the suit and in LPA No. 161/88 dated July
2, 1992, the Division Bench of the High Court has set aside the decree of the single Judge
holding that the legatees had succeeded to restricted estate under Sub-section (2) of
Section 14 of the Hindu Succession Act, 1956 (for short, the "Act") and that, therefore,
their rights have not blossomed into absolute estate. Thus, this appeal by special leave.
6. The question, therefore, is : whether Sellathachi, the widow of Somasundaram Pillai,

had become the absolute owner, by operation of Section 14(1) of the Act? Recital of the
will clearly indicates that the testator was conscious of the pre-existing legal position,
namely, he was under an obligation to maintain his wife and also moral obligation to
maintain his cousin's wife. He stated that "I am duty bound to provide maintenance for the
aforesaid two persons and I have no other duty to be performed". He had stated that after
his lifetime the two legatees would be entitled to take possession of the properties and
enjoy the same in equal share without any right to alienate and to perform the charities as
per his last wish. He also mentioned that if one of the legatees pre-deceases, the other
surviving member would have the right to enjoy the properties mentioned in the will. The
right to maintenance and a charge on her husband's properties are pre-existing legal rights
available to her.
7. Section 14 of the Act reads thus:
14(1) any property possessed by a female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as full owner thereof not as a limited
owner. Explanation. In this sub-section, "property" includes both movable and immovable
property acquired by a female Hindu by inheritance or device, or at a partition, or in lieu
of maintenance of arrears of maintenance, or by gift from any person, whether a relative or
prescription, or in any other manner whatever, and also any such property held by her as
stridharas immediately before the commencement of this Act.
8. In Tulasamma v. V. Sesha Reddi MANU/SC/0380/1977 : [1977]3SCR261 , a Bench of

three Judges of this Court had considered the right acquired under the Will and held at
page 268 thus :
Whatever be the kind of property, movable or immovable, and whichever be the mode of
acquisition, it would be covered by Sub-section (1) of Section 14, the object of the
Legislature being to wipe out the disabilities from which a Hindu female suffered in
regard to ownership of property under the old Sastric law, to abridge the stringent
provisions against propriety rights which were often regarded as evidence of her perpetual
tutelage and to recognize her status as an independent and absolute owner of property.
At page 269, it was further held that :

Sub-section (2) must, therefore, be read in the context of Sub-section (1) so as to leave as
large a scope for operation as possible to Sub-section (1) and so read, it must be confined
to cases where property is acquired by a female Hindu for the first time as a grant without
any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of
which prescribe a restricted estate in the property.
9. Thota Sesharathamma v. Thota Manikyamma MANU/SC/0621/1991 : [1991]3SCR717

is also a case under which the legatee had obtained under a will a limited estate known as
widow's estate, prior to the Act came into force. When the suit was laid for declaration
that she became only a limited owner, this Court had considered the controversy and held
thus :
Devolution of the property under the will would take effect after the demise of the testator
and the legatee would be bound by the terms of gift over etc. The stranger legatee cannot
take shelter under subsequent change of law to enlarge the operation of restrictive
covenant to claim absolute ownership in the property bequeathed to her. But socio-
economic amelioration under the Act engulfs an instrument under the sweep of Section
14(1) thereof; it extinguishes the pre-existing limited estate or restrictive condition and
confers absolute and full ownership of the property possessed by a Hindu female as on the
date when the Act had come into force, namely, June 17, 1956. The courts are not giving
retrospective operation to Section 14(1) or to the instrument. The courts only would be
applying the law to the facts found as on the date when the question arose to find whether
legatee has pre-existing vestige of title under law; and the nature of possession of the
property held by her and whether the legatee would get the benefit of Section 149(1) of
the Act.
10. In Mangat Mal v. Punni Devi MANU/SC/0040/1996 : AIR1996SC172 , another

Bench of two Judges considered the right acquired by the female under an award and held
that:
Maintenance, as we see it, necessarily must encompass a provision for residence.

Maintenance is given so that the lady can live in the manner, more or less, to which she
was accustomed. The concept of maintenance must, therefore, include provision for food
and clothing and the like and take into account the basic need of a roof over the head.
Provision for residence may be made either by giving a lump sum in money, or property in
lieu thereof. It may also be made by providing, for the course of the lady's life, a residence
and money for other necessary expenditure. Where provision in made in this manner, by
giving a life interest in property for the purposes of residence, that provision is made in
lieu of a pre-existing right to maintenance and the Hindu lady acquires far more than the
vestige of title which is deemed sufficient to attract Section 14(1).
Under the award provisions was made, in lieu of Sukh Devi's preexisting right to
maintenance, of money and interest of life in the Bidasar property. Sukh Devi, therefore,
acquired limited ownership rights in the Bidasar property in recognition of her pre-
existing right to maintenance. Upon the coming into force of the Act, the limited rights
acquired by Sukh Devi in 1934 blossomed into full ownership of the Bidasar property, and
she became entitled to sell its 'nohra'. In our view, therefore, the High Court was in error
in the view that it took.
11. This Court thus held that the view taken by the High Court was wrong in holding that
she acquired a limited estate and Sub-section (2) of Section 14 became applicable to the
right acquired by her under the award. Accordingly, this Court had held that her right
acquired under the award was in recognition of her pre-existing right to maintenance and
that, therefore, it had blossomed into an absolute right under Section 14(1) of the Act.
12. It is true, as rightly contended by Shri Rangam, the learned Counsel for the
respondent, that a Bench of two Judges of this Court in Gumpha v. Jaibai
MANU/SC/0653/1994 : [1994]1SCR901 considered the effect of the will and had held
that property acquired under Will does not fall Under Section 14(1). In that g case, the will
was executed in the year 1941 and the testator died in 1958 after the Act had come into
force. Therefore, this Court had held that she acquired right to maintenance under the will
as a restricted estate and by operation of Section 30 of the Act read with Section 14(2), she
acquired a limited estate. The learned Judges appear to have construed the operation of
Sub-section (2) of Section 14 in the light of the language mentioned in the Will. It would
be seen that the Will was executed in the year 1941. As per pre-existing law in 1941, she
had only a right to maintenance. The learned Judges proceeded on the premises that a
Hindu male's power to dispose of his property being absolute, it includes right to create
limited or restricted estate in favour of a female. By operation of Section 30 of the Act the
restricted estate under the Will comes under Sub-section (2) of Section 14 as it is not a
device under which she acquired the property under Sub-section (1) thereof. However, the
learned Judges noted that if the maintenance was given in recognition of a pre-existing
right, such an acquisition of property was taken out of Sub-section (2) to promote the
object of Section 14. The manner of acquisition under Sub-section (1) includes inheritance
etc. specifically mentioned in Sub-section (1) before the commencement of the Act.
Therefore, it was held that it does not include acquisition by will. The construction of Sub-
sections (2) and (1) being consistent with Section 30 of the Act led to that conclusion, in
the view of the learned Judges, that the words "in lieu of or "arrears of for maintenance
appeared to be significant.
13. In Seth Badri Prasad v. Srimati Kanso Devi MANU/SC/0293/1969 : [1970]2SCR95

the question of the construction of Sub-section (2) and Sub-section (1) of Section 14 had
come up before a three-Judge Bench of this Court. The facts therein were that the
respondent got certain properties under an award as a widow's estate. Suit was filed by the
appellant to restrain respondent from committing acts of waste or alienating the properties
on the ground that she was only limited owner of the property. The respondent contended
that Under Section 14(1) she became full owner of the property which was found favour
with the courts below. In interpreting Section 14(1) and (2), this Court held that the words
"acquired" and "possessed" have been used in their widest connotation. Possession must
be constructive or actual or in any form recognised by law. In the language of Explanation
the word "acquired" must also be given the widest possible meaning. Sub-section (2) of
Section 14 would come into operation only if acquisition in any of the matters indicated
therein does not come Under Section 14(1) and was made for the first time, without there
being any pre-existing right in the Hindu female who is in possession of the property. It
was held that since she was in possession of the property as a widow's estate, her limited
right was enlarged into an absolute right Under Section 14(1).
14. In Mangal Singh and Ors. v. Shrimati Rattno&Anr. MANU/SC/0205/1967 :

[1967]3SCR454 , another three-Judge Bench was to consider the question whether a
Hindu female who was dispossessed from the property in her possession before the Act
had come into force became an absolute owner Under Section 14(1). This Court held that
the words "possessed by" instead of the expression "in possession of in Section 14(1) was
intended to enlarge the meaning of the expression "possession by" to cover cases of
"possession in law". Even though the Hindu female was not in actual, physical or
constructive possession of the property Section 14(1) stands attracted.
15. It is seen that if after the Constitution came into force, the right to equality and dignity
of person enshrined in the Preamble of the Constitution, Fundamental Rights and
Directive Principles which are a trinity intended to remove discrimination or disability on
grounds only of social status or gender, removed the pre-existing impediments that stood
in the way of female or weaker segments of the society. In S.R. Bommai v. Union of India
MANU/SC/0444/1994 : [1995] 1 SCC this Court held that the preamble is part of the
basic structure of the Constitution. Handicaps should be removed only under rule of law to
enliven the trinity of justice, equality and liberty with dignity of person. The basic
structure permeates equality of status and opportunity. The personal laws conferring
inferior status on women is anathema to equality. Personal laws are derived not from the
Constitution but from the religious scriptures. The laws thus derived must be consistent
with the Constitution least they became void under Article 13 if they violated fundamental
rights. Right to equality is a fundamental right. Parliament, therefore, has enacted Section
14 to remove pre-existing disabilities fastened on the Hindu female limiting her right to
property without full ownership thereof. The discrimination is sought to be remedied by
Section 14(1) enlarging the scope of acquisition of the property by a Hindu female
appending an explanation with it.
16. The General Assembly of the United Nations adopted a declaration on December 4,
1986 on "The Development of the Right to Development to which India played a
crusading role for its adoption and ratified the same. Its preamble cognises that all human
rights and fundamental freedoms are indivisible and interdependent. All Nation States are
concerned at the existence of serious obstacles to development and complete fulfilment of
human beings, denial of civil, political, economic, social and cultural rights. In order to
promote development, equal attention should be given to the implementation, promotion
and protection of civil, political, economic, social and political rights.
17. Article 1(1) assures right to development an inalienable human right, by virtue of
which every person and all people are entitled to participate in, contribute to, and enjoy
economic, social, cultural and political development in which all human rights and
fundamental freedoms can be fully realised. Article 6(1) obligates the state to observance
of all human rights and fundamental freedoms for all without any discrimination as to
race, sex, language or religion. Sub-article (2) enjoins that...equal attention and urgent
consideration should be given to implement, promotion and protection of civil, political,
economic, social and political rights. Sub-article (3) thereof enjoins that "state should take
steps to eliminate obstacle to development, resulting from failure to observe civil and
political rights as well as economic, social and economic rights. Article 8 castes duty on
the State to undertake...necessary measures for the realisation of right to development and
ensure, inter alia, equality of opportunity for all in their access to basic resources...and
distribution of income". Effective measures should be undertaken to ensure that women
have an active role in the development process. Appropriate economic and social reforms
should be carried out with a view to eradicate all social injustice.
18. Human Rights are derived from the dignity and worth inherent in the human person.
Human Rights and fundamental freedom have been reiterated by the Universal
Declaration of Human Rights. Democracy, development and respect for human rights and
fundamental freedoms are inter-dependent and have mutual reinforcement. The Human
rights for woman, including girl child are, therefore, inalienable, integral and indivisible
part of universal human rights. The full development of personality and fundamental
freedoms and equal participation by women in political, social, economic and cultural life
are concomitants for national development, social and family stability and growth,
culturally, socially and economically. All forms of discrimination on grounds of gender is
violative of fundamental freedoms and human rights.
19. Vienna declaration on the elimination of all forms of discrimination p against women
for short "CEDAW" was ratified by the U.N.O. on December 18, 1979. The Government
of India who was an active participant to CEDAW ratified it on June 19, 1993 and
acceded to CEDAW on August 8, 1993 with reservation on Articles 5(e), 16(1), 16(2) and
29 of CEDAW. The Preamble of CEDAW reiterates that discrimination against women,
violates the principles of equality of rights and respect for human dignity; is in obstacle to
the participation on equal terms with men in the political, social, economic and cultural
life of their country; hampers the growth of the personality from society and family and
makes more difficult for the full development of potentialities of women in the service of
their countries and of humanity. Poverty of women is a handicap. Establishment of new
international economic order based on equality and justice will contribute significantly
towards the promotion of equality between men and women etc. Article 1 defines
discrimination against women to mean "any distinction, exclusion or restriction made on
the basis of sex which has the effect or purpose on impairing or nullifying the recognized
enjoyment or exercise by women, irrespective of their marital status, on a basis of equality
of men and women, all human rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field." Article 2(b) enjoins the State parties while
condemning discrimination against women in all its forms, to pursue, by appropriate
means, without delay, elimination of discrimination against women by adopting
"appropriate legislative and other measures including sanctions where appropriate,
prohibiting all discriminations against women." To take all appropriate measures
including legislation, to modify or abolish existing laws, regulations, customs and
practices which constitute discrimination against women. Clause enjoins to ensure legal
protection of the rights of women on equal basis with men through constituted national
tribunals and other public institutions against any act of discrimination to provide effective
protection to women. Article 3 enjoins state parties that it shall take, in all fields, in
particular, in the political, social, economic and cultural fields, all appropriate measures
including legislation to ensure full development and advancement of women for the
purpose of guaranteeing them the exercise and enjoyment of human rights and
fundamental freedoms on the basis of equality with men. Article 13 states that "the state
parties shall take all appropriate measures to eliminate discrimination against women in
other areas of economic and social life in order to ensure, on a basis of equality of men
and women", in particular.... Article 14 laid emphasis to eliminate discrimination on the
problems faced by rural women so as to enable them to play "in the economic survival of
their families including their work in the none magnetized sectors of the economy and
shall take...all appropriate measures...." Participation in and benefit from rural
development and, in particular, shall ensure to such women the right to participate in the
development programme to organize self groups and cooperatives to obtain equal access
to economic opportunities through employment or self-employment etc. Article 15(2)
enjoins to accord to women in equality with men before the law, in particular, to
administer property....
20. The Parliament made the Protection of Human Rights Act, 1993. Section 2(b) defines
human rights means "the rights relating to life, liberty, equality and dignity of the
individual guaranteed by the Constitution, embodied in the international conventions and
enforceable by courts in India". Thereby the principles embodied in CEDAW and the
concomitant right to development became integral parts of the Indian Constitution and the
Human Rights Act and became enforceable. Section 12 of Protection of Human Rights
Act charges the commission with duty for proper implementation as well as prevention of
violation of the human rights and fundamental freedoms.
21. Article 5(a) of CEDAW to which the Government of India expressed reservation does
not stand in its way and in fact Article 2(f) denudes its effect and enjoin to implement
Article 2(f) read with its obligation under-taken under Articles 3 14 and 15 of the
Convention vis-a-vis Articles 1, 3, 6 and 8 of the Convention of Right to Development.
The directive principles and fundamental rights, though provided the matrix for
development of human personality and elimination of discrimination, these conventions
add urgency and teeth for immediate implementation. It is, therefore, imperative of the
State to eliminate obstacles, prohibit all gender based discriminations as mandated by
Articles 14 and 15 of the Constitution of India. By operation of Article 2(f) and other
related articles of CEDAW, the state should take all appropriate measures including
legislation to modify or abolish gender based discrimination in the existing laws,
regulations, customs and practices which constitute discrimination against women.
22. Article 15(3) of the Constitution of India positively protects such Acts or actions.
Article 21 of the Constitution of India reinforces "right to life". Equality, dignity of person
and right to development are inherent rights in every human being. Life in its expanded
horizon includes all that give meaning to a person's life including culture, heritage and
tradition with dignity of person. The fulfilment of that heritage in full measure would
encompass the right to life. For its meaningfulness and purpose every woman is entitled to
elimination of obstacles and discrimination based on gender for human development.
Women are entitled to enjoy economic, social, cultural and political rights without
discrimination and on footing of equality. Equally in order to effectuate fundamental duty
to develop scientific temper, humanism and the spirit of enquiry and to strive towards
excellence in all spheres of individual and collective activities as enjoined in Article
51A(h) and (J) of the Constitution of India, facilities and opportunities not only are to be
provided for, but also all forms of gender based discrimination should be eliminated. It is a
mandate to the State to do these acts. Property is one of the important endowments or
natural assets to accord opportunity, source to develop personality, to be independent,
right to equal status and dignity of person. Therefore, the State should create conditions
and facilities conducive for women to realise the right to economic development,
including social and cultural rights.
23. Bharat Ratna Dr. B.R. Ambedkar stated, on the floor of the Constituent Assembly that
in future both the legislature and the executive should not pay mere lip service to the
directive principles but they should be made the bastion of all executive and legislative
action. Legislative and executive actions must be conformable to and effectuation of the
fun damental rights guaranteed in Part III and the directive principles enshrined in part IV
and the Preamble of the Constitution who constitutes conscience of the Constitution.
Covenants of the United Nation add impetus and urgency to eliminate gender based
obstacles and discrimination. Legislative action should be devised suitably to constellate
economic empowerment of women in socio-economic restructure for establishing
egalitarian social order. Law is an instrument of social change as well as the defender for
social change. Article 2(e) of CEDAW enjoins that this Court to breath life into the dry
bones of the Constitution, international convictions and the protection of Human, rights
Act and the Act to prevent gender based discrimination and to effectuate right to life
including empowerment of economic, social and cultural rights to women.
24. As per the U.N. Report 1980 "woman constitute half the world population, perform
nearly two thirds of work hours, receive one tenth of the world's income and own less than
one hundredth per cent of world's property". Half of the India population too are women.
Women have always been discriminated and have suffered and are suffering
discrimination in silence. Self sacrifice and self denial are their nobility and fortitude and
yet they have been subjected to all inequities, indignities inequality and discrimination.
Articles 13 14 15 and 16 of the Constitution of India and other related articles prohibit
discrimination on the ground of sex. Social and economic democracy is the cornerstone
for success of political democracy.
25. In Mrs. Valsamma Paul v. Cochin University and Ors., MANU/SC/0275/1996 :

[1996]1SCR128 , this Court has held thus :
Human rights are derived from the dignity and worth inherent in the human person.
Human rights and fundamental freedoms have been reiterated in the Universal Declaration
of Human Rights. Democracy, development and respect for human rights and fundamental
freedoms are inter-dependent and have mutual reinforcement. The human rights for
women, including girl child are, therefore, inalienable, integral and indivisible part of
universal human rights. The full development of personality and fundamental freedoms
and equal participation by women in political, social, economic and cultural life are
concomitants for national development, social and family stability and growth-cultural,
social and economical. All forms of discrimination on grounds of gender is violative of
fundamental freedoms and human rights. Convention for Elimination of all forms of
Discrimination Against Women (for short, "CEDAW" was ratified by the U.N.O. on
December 18, 1979 and the Government of India had ratified as an active participant on
June 19, 1993 acceded to CEDAW and reiterated that discrimination against women
violates the principles of equality of rights and respect for human dignity and it is an
obstacle to the participation on equal terms with men in the political, social, economic and
cultural life of their country; it hampers the growth of the personality from society and
family, making more difficult for the full development of potentialities of women in the
service of the respective countries and of humanity.
Establishment of new international economic order based on equality and justice will
contribute significantly towards the promotion of equality between men and women etc.
Article 1 defines "discrimination against woman" to mean "any distinction, exclusion or
restriction made on the basis of sex which has the effect or purpose of impairing or
nullifying the recognized enjoyment or exercise by women, irrespective of their marital
status, on the basis of equality of men and women, all human rights and fundamental
freedoms in the political, economic, social, cultural, civil or any other field." Article 2(b)
enjoins upon the State parties, while condemning discrimination against women in all its
forms, to pursue, by appropriate means, without delay, elimination of discrimination
against women by adopting "appropriate legislative and other measures including
sanctions where appropriate, prohibiting all discriminations against women; to take all
appropriate measures including legislation, to modify or abolish existing laws, regulations,
customs and practices which constitute discrimination against women. Clause C enjoins
upon the State to ensure legal protection of the rights of women on equal basis with men,
through constituted national tribunals and other public institutions against any act of
discrimination to provide effective protection to women. Article 3 enjoins upon the State
parties that it shall take, in all fields, in particular, in the political, social, economic and
cultural fields, all appropriate measures including legislation to ensure full development
and advancement of women for the purpose of guaranteeing them the exercises and
enjoyment of human rights and fundamental freedoms on the basis of equality with men.
Article 13 states that "the State parties shall take all appropriate measures to eliminate
discrimination against women in other areas of economic and social life in order to ensure,
on a basis of equality of a men and women.
The Parliament has enacted the Protection of Human Rights Act, 1993. Section 2(b)
defines "human rights" to mean the rights relating to life, liberty, equality and dignity of
the individual guaranteed by the Constitution, embodied in the international conventions
and enforceable by courts in India". Thereby, the principles embodied in CEDAW and the
concomitant right to development became integral part of the constitution of India and the
Human Rights Act and became enforceable. Section 12 of the Protection of Human Rights
Act charges the commission with duty for proper implementation as well as prevention of
violation of the human rights and fundamental freedoms.
Though the Government of India kept its reservations on Articles 5(e), 16(1), 16(2) and 29
of CEDAW, they bear little consequence in view of the fundamental rights in Article
15(1) and (3) and Article 21 and the directive principles of the Constitution.
26. It is true that Section 30 of the Act and the relevant provisions of the Act relating to
the execution of the wills need to be given full effect and the right to disposition of a
Hindu male derives full measure there under. But the right to equality removing handicaps
and discrimination against a Hindu female by reason of operation of existing law should
be in conformity with the right to equality enshrined in the Constitutional and the personal
law also needs to be in conformity with the Constitutional goal. Harmonious
interpretation, therefore, is required to be adopted in giving effect to the relevant
provisions consistent with the constitutional animation to remove gender-based
discrimination in matters of marriage, succession etc. Cognizant to these constitutional
goals, Hindu Marriage Act, Hindu Adoption and Maintenance Act, Hindu Succession Act
etc. have been brought on statute removing the impediments which stood in the way under
the Sastric law. Explanation I to Section 14(1) gives wide amplitude to the acquisition of
property in the widest terms. It is merely illustrative and not exhaustive. The only
condition precedent is whether Hindu female has a pre-existing right under the personal
law or any other law to hold the property or the right to property. Any instrument,
document, device etc. under which Hindu female came to possess the property-movable or
immovable-in recognition of her pre-existing right, though such instrument, document or
device is worded with a restrictive estate, which received the colour of pre-existing
restrictive estate possession by a Hindu female, the operation of Sub-section (1) of Section
14 read with Explanation 1, remove the fetters and the limited right blossoms into an
absolute right.
27. As held by this Court, if the acquisition of the property attracts Sub-section (1) of
Section 14, Sub-section (2) does not come into play. If the acquisition is for the first time,
without any vestige of pr-existing right under the instrument, document or device etc. then
Sub-section (2) of Section 14 gets attracted. Sub-section (2) being in the nature of an
exception, it does not engulf and wipe out the operation of Sub-section (1). Sub-section
(2) of Section 14 independently operates in its own sphere. The right to disposition of
property by a Hindu Under Section 30 is required to be understood in this perspective and
if any attempt is made to put restriction upon the property possessed by a Hindu female
under an instrument, document or device, though executed after the Act had come into
force, it must be interpreted in the light of the facts and circumstances in each case and to
construe whether Hindu female acquired or possessed the property in recognition of her
pre-existing right or she gets the rights for the first time under the instrument without any
vestige of preexisting right. If the answer is in the positive, Sub-section (1) of Section 14
gets attracted. Thus construed, both Sub-sections (1) and (2) of Section 14 will be given
their full play without rendering either as otiose or aids as means of avoidance.
28. In Gumpha's case (supra) though the will was executed in 1941 and the executor died
in 1958 after the Act had come into force, the concept of limited right in lieu of
maintenance was very much in the mind of the executor when will was executed in 1941
but after the Act came into force, the will became operative. The restrictive covenant
would have enlarged it into an absolute estate; but unfortunately the bench had put a
restrictive interpretation which in our considered view does not appear to be sound in law.
29. The legatee Sellathachi had right to maintenance under the Hindu Adoption and
Maintenance Act when the property was given to her for maintenance. It must be in lieu of
her pre-existing right to maintenance and the property given under the will, therefore,
must be construed to have been acquired by the legatee under the will in lieu of her right
to maintenance. That right to maintenance to a Hindu female received statutory
recognition under the Hindu Adoption and Maintenance Act, 1956. She is entitled to
realise maintenance from property of her husband and even in the hands of strangers
except the bona fide purchaser for value whether notice of her right. She is equally entitled
Under Section 37 of the Transfer of Property Act to have charge created over the property
for realisation of her maintenance. On the demise of the testator, she being the class-I heir
but for the bequeath, is entitled to succeed as an absolute owner. In either of those
circumstances, the question emerges whether she acquires a limited right Under Section
14(2) for the first time under the Will. In the light of the facts and circumstances of the
case and the legal setting, we F are of the considered view that she having had under
Sastric law, as envisaged in the Will, the properties in recognition of her pre-existing right
to maintenance, it is not a right acquired for the first time under the instrument will, but it
is a reflection of the pre-existing right under the Sastric law, which was blossomed into an
absolute ownership after 1956 Under Section 14(1) of the Act. Under these circumstances,
it cannot be held that Sellathachi acquired the right to maintenance for the first time under
the instrument will. The Division Bench, therefore, does not appear to have approached
the problem in the correct perspective. In view of the settled legal position right from
Tulasamma's case (supra) the right acquired under the Will is in recognition of the pre-
existing right to maintenance known under the Sastric law and was transformed into an
absolute right Under Section 14(1) wiped out the restrictive estate given under the Sastric
law and Sellathachi as absolute owner of the property. The Division bench of the High
Court, therefore, was not correct in holding that Sellathachi has acquired only a limited
estate under the Will and Section 14(2) attracts to the restrictive covenants contained in
the will limiting her right to maintenance for life time and, thereafter, the right to enjoy the
income from the lands and on her demise, the income should go to the temples as
mentioned in the will is not correct in law.
30. Shri Rangam then contended that when the testator has thought of providing only
maintenance, to the two widows, the properties being more than 10 acres, the maintenance
must be only proportionate to the needs of the widow and to that extent the widow
acquires an absolute right but not the entire property. We find no force in that contention.
It is to be seen that under the pre-existing law, she is entitled to remain in possession of
the whole estate known as widow's estate and after the Act has come into force that
widow's estate was blossomed into an absolute estate by operation of Section 14(1). Even
in the Will Ex-Al, no such restrictive covenant was engrafted giving reasonable proportion
of income consistent' with her needs for maintenance. On the other hand, the express
covenant is that, he recognised her right to maintenance and in lieu of the maintenance
property was given to her for her maintenance during her lifetime. That is the pre-existing
right as per then existing law. After the Act has come into force, the limited estate has
blossomed into an absolute estate. Therefore, the doctrine of proportionality of
maintenance is not applicable and cannot be extended.
31. The appeal is accordingly allowed, the judgment of the Division Bench stands set
aside and that of the single Judge stands upheld. Resultantly, the suit stands dismissed. In
the circumstances, there shall be no order as to costs.
Naresh Kumari v. Shakshi Lal, (1999) 2 SCC 656
Hon'ble Judges: K. Venkataswami and A.P. Misra, JJ.
JUDGMENT
A.P. Misra, J.
1. The question in issue is, whether a female Hindu buying a house from a widow, a
widow's estate prior to the coming into force of the Hindu Succession Act, 1956
(hereinafter referred to as 'the 1956 Act'), would become full owner of such house by
virtue of Section 14(1) of the Act? In other words, it raises the question of interpretation of
Section 14(1) and (2), as to, whether the transferee of such widow's estate, on the facts of
this case, would fall under Sub-section (1) or (2) of Section 14? In case it falls under Sub-
section (2), it would not mature her right in such property and thus it would revert back to
the reversioners of the husband of the widow but if it falls under Sub-section (1) she
would become full owner of such property.
2. It is necessary to give some of the basic bare facts to appreciate and adjudicate the
controversies of this case.
3. One Smt. Kesri, widow of Radhakishan, sold the house in dispute to Smt. Naresh
Kumari, the appellant No. 1, on 29th January, 1954 for Rs. 3,000. Sakshi Lal and Ashwani
Kumari, the respondents, are reversioners of Radhakishan. Earlier, the said reversioners
challenged the said sale and sought declaration of the title over the said house, by filing a
suit for declaration, challenging the claim of the appellants. Their case was that Smt. Kesri
had only a limited interest in the property and thus she had no right to sell the property
without any legal necessity. On 13th June, 1955, this suit was decreed by the Trial Court
holding that the transfer, by virtue of the said sale made by the widow was without any
legal necessity and hence void against the reversioners interest. Aggrieved by this, Smt.
Nirmal Kumari appealed before the first appellate court. During its pendency, on 17th
June, 1956 the aforesaid Hindu Succession Act came into force and on 22nd May, 1957
Smt. Kesri died. Finally, on 11th June, 1958, the appeal was also dismissed. After
conclusion of the first leg of litigation, thereafter on 10th June, 1959, the reversioners of
Radhakishan, the respondents before us, filed another suit for possession of the house in
dispute on the basis of the decree as aforesaid. The defendants, the appellants before us,
have contested the suit on the ground that on the date Smt. Kesri died, namely, 22nd May
1957, since Hindu Succession Act came into force, Smt. Kesri became full owner of the
said property and hence she being transferee from her and being in possession of this
property became full owner. For such transfer she, in fact, invested Rs. 3,000. The Trial
Court decreed the suit in favour of the plaintiff-respondents. The appeal was allowed by
the Additional District Judge, Kangra Division, thus the suit of the plaintiff was dismissed.
The second appeal by the plaintiff was allowed by the High Court by setting aside the
judgment and decree of the first appellate court and restoring the decree of the trial court.
Aggrieved by this order, the present appellants-Smt. Naresh Kumari and Ors. have filed
this appeal.
4. The relevant provision is Section 14 of the Act. Section 14 of the Act is quoted
hereunder:
14. Property of a female Hindu to be her absolute property. -(1) Any property possessed
by a female Hindu, whether acquired before or after the commencement of this Act, shall
be held by her as full owner thereof and not as a limited owner.
Explanation. - In this sub-Section, 'property' includes both movable and immovable

5. Thus Section 14(1) enshrines long awaited, cherished and socially desirable protective
right to a Hindu widow when her limited right in the estate of her husband, in lieu of her
maintenance flowered into full right. She is conferred as full owner in such estate. The
right to the maintenance of wife by a husband is recognised from the very inception,
recognised even in the ancient vedic scriptures. This obligation was cast on the husband
even were he had no property. However, when such benevolent principle was not
followed, the law created on equitable charge on the estate of the husband, whether self
acquired or a share in the ancestral property, for her limited right of maintenance. This
charge was to place an obligation on the person inheriting such property of her husband to
maintain the widow even where such property goes in their hands. Even before this 1956
Act, to secure justice to such widows. The Hindu Women's Rights to Property Act, 1937
and The Hindu Married Women's Act to Separate Maintenance and Residence Act, 1946
we made. Each of these Acts did not give any new right to the widows but gave
recognition of their pre-existing rights. This made explicit for a widow to claim her
maintenance out of the estate or share in a estate of her husband. In Kalishanker Das and
Anr. v. Dhirendra Nath Patra and Ors. MANU/SC/0131/1954 : [1955]1SCR467 , this
Court recorded that what is the widow's right in widow's estate, including the right of
reversioners in such estate under the Hindu Law what existed prior to the 1956 Act:
It is a well settled doctrine of Hindu law that nobody has a vested right so long as the
widow is alive and the eventual reversionary does not claim through any one who went
before him.
The interest of a Hindu widow in the properties inherited by her bears no analogy or
resemblance to what may be described as an equitable estate in English law and which
cannot be followed in the hands of a bona fide purchaser for value without notice. A
Hindu widow has got only qualified proprietorship in her estate which she can alienate
only when there is justifying necessity and the restrictions on her powers of alienation are
inseparable from her estate. For legal necessity she can convey to another an absolute title
to the property vested in her. If there is no legal necessity the transferee gets only the
widow's estate which is not even an indefeasible life estate for it can come to an end not
merely on her death but on the happening of other contingencies like remarriage adoption,
etc. If an alienee from a Hindu widow succeeds in establishing that there was legal
necessity for transfer, he is completely protected and it is immaterial that the necessity was
brought about by the mismanagement of the limited owner herself. Even if there is no
necessity in fact, but it is proved that there was representation of necessity and the alienee
after making bona fide enquiries satisfied himself as best as he could that such necessity
existed, the actual existence of a legal necessity is not a condition precedent to the validity
of the sale. Therefore, if there is no necessity in fact or if the alienee could not prove that
he made bona fide enquiries and was satisfied about its existence, the transfer is not void
but the transferee would get only the widow's estate in the property which does not in any
way affect the interest of the reversioner.
6. It seems legitimately, wisdom of legislature thought that widows' limited right to

maintenance though being recognised right from very inception under the Hindu Law,
followed by recognition through legislations, yet widows in receiving such limited right,
faced difficulties in the hands of reversioners thus enacted the 1956 Act. Under it their
limited right matured into full right. By Sub-section (1) of Section 14, right in any
property, possessed by a female Hindu, whether such property was acquired before or
after coming into force of the 1956 Act, is recognised to be held by her as full owner
thereof and not as a limited owner. Thus, under it, the concept of limitation to the
ownership right of a widow in such property dissolved. This was with an intention to
eliminate the ordeal faced by widows for a long period of time. However, the periphery of
such women's absolute right under Sub-section (1) is shrunk to a limited extent to what is
contained under Sub-section (2). So what is covered under Sub-section (2) would not fall
within the sphere of Sub-section (1). Thus, it becomes necessary, while interpreting, sub-
Sections (1) and (2) to keep in mind that this being a social and beneficial legislation for a
female Hindu, its interpretation should not be such which curtails the benefit conferred
under it. Thus, interpretation to Sub-section (1) should not be restrictive but liberal in
nature. On the other hand, Sub-section (2) which curtails the sphere of Sub-section (1) has
to be given restrictive interpretation so as not to erode the sphere of widow's right
conferred under Sub-section (1). The language in Sub-section (1) makes it clear that all
what has to be shown by a female Hindu is that she had a right in the property in question
and she is possessed of that property. The possession may be physical, constructive or
formal in a legal sense on the date of the coming into operation of the Act, But this is not
the since qua non for the acquisition of full ownership in the property. Under this sub-
Section when a female Hindu is put in possession of any property pursuant to her right to
maintenance, her limited right or interest in the property thus far, by virtue of Section
14(1), blossoms into full ownership. On the other hand sub- Section (2) of Section 14 is in
the nature of exception or proviso to Sub-section (1). Sub-section (1) makes a widow, who
had a limited interest, to be a full owner regardless whether acquisition was prior to or
after the coming into force of the 1956 Act. We find, on the other hand that sub- Section
(2) excludes a woman's right from the field of Sub-section (1), under this, where property
is acquired by a female Hindu by way of gift or under a Will or any other instrument or
under an order or decree of a civil court or under an award and where there is a term in
such gift, will or instrument including the order or decree or an award prescribing a
restricted enjoyment in such property, it will not mature any full right in such property.
But where there is no such restriction in such property received by the transferee or
beneficiary under such document or decree, it would not fall into the field of Sub-section
(2) but would fall under Sub-section (1).
7. The main contention for the respondents in the present case is that since the transfer by
a sale deed by the widow, Smt. Kesri, of the house, in which at that time, when the 1956
Act has yet not come, she had only a limited right, she had no right to sell the house in
question except for the legal necessity, which stood rejected in the first leg of legal
proceedings between the same parties, hence the appellants could not be conferred a full
right in the disputed property. The said transfer at the best could confer on her a limited
right to enjoy, that too during the life time of Smt. Kesri, On the other hand, contention on
behalf of the appellant-Smt. Naresh Kumari is that the transfer by a sale deed made by
Smt. Kesri in her favour does not contain any restriction for the enjoyment of the estate,
hence there being no restriction under the said document, it would not fall under sub-
Section (2) but would fall under Sub-section (1) thus she became full owner thereof. Let
us see the field of Sub-section (2). The ingredients of this sub-Section are, (a) property
must have been acquired by way of gift, will or an instrument, decree or order of a civil
court or an award; (b) that such document, order or decree must prescribe a restrictive
right in such property and (c) such instrument, document or order must confer a new right
or interest in such Hindu female not by way of recognition of or by way of giving effect to
any pre-existing right which she already possessed.
8. The question of interpretation of sub-Sections (1) and (2) of Section 14 has been in
focus by decisions of this Court in the past.
9. V. Tulsamma and Ors. v. v. Sesha Reddi (Dead) by L.Rs. MANU/SC/0380/1977 :

[1977]3SCR261 , this decision exhaustively with precision has dealt with the history and
the law on the subject preceding the enactment of the 1956 Act and has also interpreted
these two sub-Sections, the relevant portions are quoted hereunder:
(1) The Hindu female's right to maintenance is not an empty formality or an illusory claim
being conceded as a matter of grace and generosity, but is a tangible right against property
which flows from the spiritual relationship between the husband and the wife and is
recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even
by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a
right to property but it is a right against property and the husband has a personal obligation
to maintain his wife and if he or the family has property, the female has the legal right to
be maintained therefrom. If a charge is created for the maintenance of a female the said
right becomes a legally enforceable one. At any rate, even without a charge the claim for
maintenance is doubtless a pre-existing right so that any transfer declaring or recognising
such a right does not confer any new title but merely endorses or confers the pre-existing
rights.
(2) Section 14(1) and the explanation thereto have been couched in the widest possible
terms and must be liberally construed in favour of the females so as to advance the object
of the 1956 Act and promote the socio-economic ends sought to be achieved by this long
needed legislation.
(3) Sub-section (2) of Section 14 is in the nature of a proviso and has field of its own
without interfering with the operation of Section 14(1) materially. The proviso should not
be construed in a manner so as to destroy the effect of the main provision or the protection
granted by Section 14(1) of in a way so as to become totally inconsistent with the main
provision.
(4) Sub-section (2) of Section 14 applies to instruments, decrees, awards, gifts etc. which
create independent and new titles in favour of the females for the first time and has no
application where the instrument concerned merely seeks to confirm, endorse, declare or
recognise pre-existing rights. In such cases a restricted estate in favour of a female is
legally permissible and Section 14(1) will not operate in this sphere. Where, however, an
instrument merely declares or recognises a pre- existing right, such as a claim to
maintenance or partition or share to which the female is entitled, the sub-Section has
absolutely no application and the female's limited interest would automatically be
enlarged into an absolute one by force of Section 14(1) and the restrictions places, if any,
under the document would have to be ignored. Thus, where a property is allotted or
transferred to a female in lieu of maintenance or a share at partition, the instrument is
taken out of the ambit of Sub-section (2) and would be governed by Section 14(1) despite
any restrictions placed on the powers of the transferee.
(5) The use of express terms like 'property acquired by a female Hindu at a partition', 'or in
lieu of maintenance' 'or arrears of maintenance' etc. In the Explanation Section 14(1)
clearly makes Sub-section (2) inapplicable to these categories which have been expressly
excepted from the operation of Sub-section (2).
(6) The words 'possessed by" used by the Legislature in Section 14(1) are of the widest
possible amplitude and include the state of owning a property even though the owner is
not in actual or physical possession of the same. Thus, where a widow gets a share in the
property under a preliminary decree before or at the time when the 1956 Act had been
passed but had not been given actual possession under a final decree, the property would
be deemed to be possessed by her and by force of Section 14(1) she would get absolute
interest in the property. It is equally well settled that the possession of the widow however,
must be under some vestige of a claim, right or title, because the Section does not
contemplate the possession of any rank trespasser without any right or title.
(7) That the words 'restrict estate' used in Section 14(2) are wider than limited interest as
indicated in Section 14(1) and they include not only limited interest, but also any other
kind of limitation that may be placed on the transferee.
10. In Himi (Smt.) D/O Lachhmu (Smt) and Anr. v. Him Devi (Smt.) widow of Budhu
Ram and Ors. MANU/SC/1663/1996 : AIR1997SC83 , this Court followed the aforesaid
F. Tulsamma case (supra).
11. In C. Masilamani Mudatiar and Ors. v. Idol of Sri Swaminathas-wami Tihirukoil and
Ors. MANU/SC/0441/1996 : [1996]1SCR1068 , this Court while interpreting sub-
Sections (1) and (2) of Section 14 held that in case where a Hindu female acquires and
possesses the property in recognition of her pre-existing right, Sub-section (1) will apply
and in case where she gets the right for the first time under an instrument or order without
any pre-existing right, Sub-section (2) will apply.
12. Within the sphere of this legal principle, now we revert to the facts of the present case.
It is not in dispute that in the first leg of litigation between the parties, when Smt. Kesri,
widow of Radhakrishan was alive and was a party, the respondents, reversioners of
Radhakrishan, succeeded in their suit by getting declaration of this disputed house, that the
sale deed by Smt. Kesri to Smt. Naresh Kumari was without legal necessity hence void.
The appeal filed by the appellant was dismissed which became final. The present issue has
arisen when the respondents reversioners filed their second suit for possession over the
same property about which they got the decree as aforesaid. The question on these facts is,
whether still appellants can claim to fall under Sub-section (1) of Section 14? There could
be no doubt before a benefit of Sub-section (1) of Section 14, even by the widow (Smt.
Kesri), could be conferred, she has to show that she is possessed of this property in dispute
in lieu of her limited right of maintenance. The question is whether she was possessed of
this property, to claim full right under sub- Section (1) which she acquired before the 1956
Act came into force? The admitted fact is, she transferred all her right to the appellants
through the said sale deed before the 1956 Act came into force. Thus, she could not be
said to be possessed of this property. Thus, by her own conduct she herself relinquished all
her right and even lost possession in it through the said transfer. Thus, she would not be
said to be possessed of this property before coming into force the 1956 Act. Then how can
she get benefit of Sub-section (1) of Section 14? It may be examined from another angle.
It is not in dispute that any female Hindu could only alienate her limited right in an estate
prior to coming into force of the 1956 Act, which is in her possession, only for a legal
necessity, If alienation is without any legal necessity or is contrary to law the alienee
would only get a transitory limited right to enjoy the property, during the life time of the
widow which is the only residuary right she possessed which could be deemed to have
been transferred. Thus, after the widow's death such property even from alienee would
revert back to the reversioners of her husband. In Kalawatibai v. Soiryabai and Ors.
MANU/SC/0364/1991 : [1991]2SCR599 , this Court held:
A Hindu widow prior to 1956 held the property fully with right to enjoy or even destroy or
dispose it of or alienate it but such destruction or alienation should have been impressed
with legal necessity or for religious or charitable purposes or for spiritual welfare of the
husband, Necessary consequences that flowed from an alienation for legal necessity was
that the property vested in the transferee or alienee, and the reversioners were produced
from assailing its validity.
But if prior to 1956 any alienation was made by a Hindu widow of widow's estate
prohibited by law or being beyond permissible limits, it stripped the widow of her rights
and she could not acquire any rights under Section 14. And so far as alienees were
concerned it could utmost create temporary and transitory ownership precarious in nature
and vulnerable in character open to challenge if any attempt was made to cloud
reversioner's interest. The alienee's possession may be good against the world, his right in
property may not be impeachable by the widow but his interest qua the reversioner was to
continue in possession at the maximum till the life time of his donor or transferor. It was
life interest, loosely, as the duration of interest created under invalid transfer came to an
end not on death of donee or transferee but donor or transferor.
13. This authority completely demolishes the case of the appellants. After having lose the
battle in the first suit where it was held that Smt. Kesri sold the property to appellants
without any legal necessity. After transfer of the property through the sale, as aforesaid,
she could not be said to have continued in possession of such property. The sale was prior
to the coming into force of the 1956 Act. So, prior to coming into force of the 1956 Act,
she could not be said to be possessed of this property under Sub-section (1) of Section 14.
On the other hand, in the absence of any valid transfer by Smt. Kesri the reversioners
would get the right in the said property after her death and alienee would have no right
over it thereafter. Thus, the submission on behalf of the appellants that as the sale deed
dated 29th January, 1954 does not restrict the enjoyment of the estate, hence it would fall
outside the purview of Sub-section (2) and would fall under sub- Section (1) of Section 14
is misconceived and cannot be accepted. Alienee could have matured her right in the
property, if transfer by Smt. Kesri would have have been after she had become full owner
under Section 14(1), after coming into force of that Act. It is only in cases of valid
transfers the question of examining whether such deed or document of transfer confers the
transferee a restrictive right or not, arises.
14. In the present case, this does not arise, as transfer already held to be void in the earlier
suit. A possible argument, though not argued, that in case the transfer was bad as void, the
property would be deemed to have reverted back to Smt. Kesri and on coming into force
of the 1956 Act she became full owner. Even if that be, alienee could only succeed if there
be any transfer to her after this date. There is more in the present case, her claim is only
through the sale deed executed when she had only limited right. On the contrary, we find
that the order and decree in the first suit results into giving an alienee a restricted right.
Thus, the said transfer would be circumscribed and restricted by the order passed in the
first suit. Thus, even on this ground it could not be said that the aliened-appellants had
unrestricted right. It is also not in dispute that the appellants received the property not in
lieu of her any pre-existing right, but received right in the property for the first time
through the sale deed. In view of this, the appellants' case would fall under Sub-section
(2). Thus, the appellants' right in the said property could not be upheld.
15. In view of our aforesaid findings, none of the submissions on behalf of the appellants
could be accepted. The appeal is devoid of any merit and thus fails and is, accordingly,
dismissed. Cost on the parties.
Pushpa Devi v. CIT, AIR 1977 SC 2230
Summary: A Hindu Femala can blend her separate property with the joint family
property. However, since she is not a coparcener, she cannot claim a right in such
joint family property but only has a right to maintenance under the same. This
position of law however, will not hold in light of the Hindu Succession Amendment
Act, 2005.
Hon'ble Judges: P.S. Kailasam and Y.V. Chandrachud, JJ.
Court: Supremem Court of India
JUDGMENT
Y.V. Chandrachud, J.
1. Two questions arise for consideration in this appeal one of them being subsidiary to the
other. The main question is whether a Hindu female who is a member of an undivided
family can blend her separate property with joint family property.
2. The appellant, Pushpa Devi, is a member of a joint Hindu family consisting of herself,
her husband, her father-in-law, her mother-in-law, her minor son and three daughters. On
June 19, 1958 the appellent, in her individual capacity and with the aid of her personal
assets, entered into a partnership with her father-in-law, Gur Narain Khanna, in the name
and style of Gur Narain Jagat Narain & Co. Her minor son, Ravi Narain Khanna, was
admitted to the benefits of that partnership. Each of the three partners had a one-third
share in the profits of the partnership, while the appellant and her father-in-law had an
equal share in the losses.
3. The firm owned two cinema houses: Nishat Talkies, Kanpur and Novelty Talkies,
Lucknow. Separate accounts were maintained in respect of the two businesses and
separate profit and loss accounts; used to be drawn up. On August 31, 1961 a sum of Rs.
67,284.57 stood to the credit of the appellant in the books of Nishat Talkies. That amount
consisted of a sum of Rs. 16,666.67 in the capital account and Rs. 50,617.90 in the current
account.
4. On September 1, 1961 the appellant made a sworn declaration stating that she was the
sole and absolute owner of the amounts standing to her credit in the books of Nishat
Talkies and of her share in that business and declaring unequivocally her intention to treat
both her capital and her share in the business of Nishat Talkies as the joint family property
of the Hindu undivided family of which she was a member. By Clause (6) of the
declaration, the appellant stated that she had abandoned for ever her separate interest and
ownership over the capital investment of Rs. 67,284.57, her one-third share in the net
profits and one-half share in the net losses in the business of Nishat Talkies, in favour of
the joint Hindu family to be wholly and exclusively enjoyed and possessed by it.
5. We are concerned in this appeal with the assessment year 1963-64, for which the
previous accounting year ended on August 31, 1962. A sum of Rs. 20,865, being one-third
share of the income from the business of Nishat Talkies for the year in question, was
credited to the account of the joint Hindu family in the books of the firm. That income
would have originally fallen to the share of the appellant in the business of Nishat Talkies,
but it was credited to the account of the joint Hindu family in consequence of the
declaration made by the appellant on September 1, 1961. The Hindu undivided family
paid advance1 tax on,' the amount and filed its return in respect of that income. The
appellant, on the other hand, did not include that income in her return for the year. She
appended a note at the end of the return saying: "Share of income from Nishat Talkies,
Kanpur Rs. 20,865/-. Please see note on back page oil computation of assessable income."
In the note on the back page of the return, the appellant referred to the declaration of
September 1, 1961 and stated that her one-third share in the income of Nishat Talkies was
assessable in the hands of the Hindu undivided family since the income had ceased to be
hers by reason of the declaration.
6. The Income-tax Officer rejected the appellant's contention on the ground that throwing
the capital amount into the family stock was of on avail as the "sine qua non" of the matter
was that "the Karta should become a partner in consequence of investment". The
Appellate Assistant Commissioner affirmed the order of the I.T.O. on the ground that
since the appellant, though a member of the joint family, was not a coparcener, it was not
open to her to impress her personal property with the character of joint family property.
The second ground on which the appellant's claim was rejected by the A.A.C. was that the
joint family did not possess any joint family property and, therefore, there was no joint
family stock in which] the appellant could throw her separate property.
7. In a further appeal, the Income-tax Appellate Tribunal accepted the appellant's

contention, holding that there was No. justification for discriminating against Hindu
female on the ground) of sex and that there was no reason why a Hindu female who was a
member of an an undivided family could not, by an unequivocal expression of intention,
impress her separate property with the character of joint family property. The Tribunal
observed that the appellant was not trying to enlarge her rights under the Hindu law or to
improve her status under that law by abandoning her exclusive right in her; self-acquired
propery. Surrender of interest by a female was not, according to the Tribunal, foreign to
the genius of Hindu law and, therefore, no restriction could be placed on a female's right
to abandon her exclusive interest in favour of the join family of which she was a member.
8. At the instance of the revenue, the Tribunal referred for the opinion of the Delhi High
Court the following question:
Whether on the facts and in the circumstances of the cases, the tribunal rightly held that
the income of Rs. 21,544/- was not the individual income of the appellant but was the
income of the Hindu undivided family of which she was a member.
9. Disagreeing with the Tribunal, the High Court answered the question in favour of the
revenue on the ground that the right of blending could be exercised only by a coparcener
and since the appellant, though a member of the joint family was not a coparcener, she
could1 not throw her separate property into the joint family stock. The High Court,
however, rejected the contention of the revenue that since the joint family did not possess
any property, no member thereof could blend his separate property with joint family
property.
10. The High Court has granted to the appellant a certificate under Section 261 of the
Income-tax Act, 1961 to file an appeal to this Court on the ground that the case involves a
substantial question of law as to the right of a female member of a joint Hindu family to
impress her self-acquired property with the character of joint Hindu family property. The
question, according to the High Court, is res integra.
11. This appeal had come up for hearing before a three-Judge Bench earlier when it was
felt that the question referred by the Tribunal for the opinion of the High Court was
comprehensive enough to cover the point.
Whether there was a gift of the appellant's capital investment and her share in the business
of Nishat Talkies in favour of the Hindu undivided family.
12. By a judgment dated September 24, 1976 Khanna J., on behalf of the Bench, directed
the Tribunal to send a supplementary statement of the case on that question.
13. In pursuance of the direction, the Tribunal has forwarded to this Court a
supplementary statement of the case along with its finding on the question which it was
directed to consider. By its order dated January 31, 1977 the Tribunal has taken the view
that there was a gift by the 'appellant in favour of the joint family and that the latter had
accepted that gift.
14. We are thus required to consider two questions in this appeal one relating to the right
of a Hindu female, who is a member of an undivided family, to impress her absolute self-
acquired property with the character of joint family property and the other as to whether, if
there has been no such blending, the transaction, in the instant case can amount to a gift in
favour of the undivided family. We will proceed to a gift in favour of the undivided
family. We will proceed to examine the first question.
15. The High Court is not quite correct in the unqualified statement it has made in its order
granting a certificate to the appellant to appeal to this Court that this question is res intern.
The question, in our opinion, is fairly, if not fully, covered by a considered judgment of
this Court in Mallesappa Bandappa Desai and Ors. v. Desai Mallesappa and Ors.
MANU/SC/0377/1961 : [1961]3SCR779 . The appellants therein brought a suit against
their uncle and another for partition of joint family properties, their case being that they
and respondent 1 were each entitled to a half share in those properties. The trial court
passed a decree in favour of the appellants, except in regard to certain items. That decree
was challenged by respondent 1 in the Madras High Court, one of his contentions being
that in any case, the appellants were not entitled to a share in the properties at Jonnagiri,
items 4 to 61. This contention was accepted by the High Court which modified to that
extent the decree of the trial court.
16. In an appeal filed in this Court by certificate granted by the High Court, one of the
main contentions raised on behalf of the appellants was that the Jonnagiri properties were
as much properties of the joint family as the other items and, therefore, the High Court had
fallen into error in refusing to grant to the appellants a share in those properties. The
Jonnagiri properties belonged originally to one Karnam Channappa, on whose death the
properties devolved on his widow Bassamma. Bassamma died in 1920, leaving behind her
three daughters, one of whom was Channamma. Channamma married Ramappa and the
couple gave birth to four sons, including the appellants' father Bandappa and respondent 1,
Mallappa. It was common ground between the parties that the Jonnagiri properties were
obtained by Channamma by succession from her father and were held by her as a limited
owner. Channamma was a member of the joint family consisting of herself, her husband,
their sons and others. The appellants' case was that after the Jonnagiri properties had
devolved on Channamma by succession, she allowed the said properties to be thrown into
the common stock of the other properties belonging to the joint family and that, by virtue
of such a blending, the Jonnagiri properties of Channamma had acquired the character of
joint family property.
17. Gajendragadkar J., who spoke for the Court began an examination of the appellants'
contention by posing the fundamental question whether the doctrine of blending can be
invoked in such a case. After stating that the Privy Council in Shiba Prasad Singh v. Rani
Prayag Kumari Debi, 59 I.A. 331 was in error in observing that the doctrine of blending
was based on the text of Yagnayaikya (Ch.I, Sect. 4, pl. 30) and the commentary made on
it by Vijnyaneshwara (Mitakshara, ch.I, sect. 4, pl.31), the learned Judge observed that it
was unnecessary to investigate whether any other text can be treated as the foundation of
the doctrine of blending since the doctrine, as evolved by Judicial decisions, had received
a wide recognition and had become a part of Hindu law. The Court then proceeded to
examine the question whether the principle of blending applied in regard to property held
by a Hindu female as a limited owner and answered that question in the negative.
18. It is undoubtedly true, as contended by the appellant's learned Counsel, that the
question which the Court posed for its consideration at page 785 of the report speaks of
properties held by a Hindu female as a limited owner. But the question was framed in that
manner because the properties which had developed on Channamma on her father's death
were held by her as a limited owner and not as her absolute properties. The ultimate
decision of the Court that the Jonnagiri properties which had devolved on Channamma
could not be treated as the properties of the joint family is not based upon or governed by
the consideration that she had a limited estate in those properties. The decision of the
Court, as Gajendragadkar J. has stated at more than one place in the Judgment is:
The rule of blending postulates that a coparcener who is interested in the coparcenary
property and who owns separate property of his own may by deliberate and intentional
conduct treat his separate property as forming part of the coparcenary property. If it
appears that property which is separately acquired has been deliberately and voluntarily
thrown by the owner into the joint stock with the clear intention of abandoning his claim
on the said property and With the object of assimilating it to the joint family property then
the said property becomes a part of the joint family estate; in other words, the separate
property of a coparcener loses its separate character by reason of the owner's conduct and
gets thrown into the common stock of which it becomes a part. This doctrine therefore
inevitably postulates that the owner of the separate property is a coparcener who has an
interest in the coparcenary property and desires to blend his separate property with the
coparcenary property. .
19. After stating the position thus, the Court again adverts to the fact that Channamma
held the Jonnagiri properties as a limited owner, but having done so, it restates the position
that a Hindu female, not being a coparcener has no interest in the coparcenary property
and cannot blend her property with the joint family property. The frequent reference in the
judgment in Mallesappa (supra) to the fact that Channamma held a limited estate and the
further reference by the Court to the Hindu law principle that a Hindu female owning a
limited estate cannot circumvent the rules of surrender and allow the members of her
husband's family to treat her limited estate as part of the joint family property belonging to
the family is apt to confuse the true issue, but we have no doubt that the judgment rests
squarely and principally on the consideration that Channamma was not a coparcener.
While concluding the discussion on this topic, the Court observed at page 787 that on first
principles, the result which was canvassed by the appellants was inconsistent both with
"the basic notion of blending" and with "the basic character of a limited owner's title to the
property held by her". The "basic notion of blending" which the Court has highlighted at
several places in its judgment is that it is the coparcener who alone can blend his separate
property with joint family property and that the said right is not available to a female who,
though a member of the joint family, is not a coparcener. We are clear that Mallesappa
(supra) is an authority for the proposition that a Hindu female, not being a coparcener,
cannot blend her separate property with joint family property. Whether that separate
property is the female's absolute property or whether she has a limited estate in that
property would make no difference to that position. We may mention that Mallesappa
(supra) is quoted in Mulla's Hindu Law (14th Ed. p. 277) as an authority for the
proposition that the doctrine of blending cannot be applied to the case of a Hindu female
who has acquired immovable property from her father, for she is not a coparcener.
20. The Judgment of this Court in Lakkireddi Chinna Venkata Reddi v. Lakkireddy
Lakshmama, MANU/SC/0246/1963 : [1964]2SCR172 that of the Privy Council in Rajani
Kanta Pal and Ors. v. Joga Mohan Pal, 50 I.A. 173 and of the Delhi High Court in
Commissioner of Gift-tax, Delhi v. Munshi Lal MANU/DE/0187/1971 :
[1972]85ITR129(Delhi) do not deal with the question whether a Hindu female, not being a
coparcener, can blend her separate property with joint family property. The statement of
law in Lakkireddi (supra) that property, separate or self-acquired, of a member of joint
Hindu family may be impressed with the character of joint family property if it is
voluntarily thrown by the owner into the common stock with the intention of abandoning
his separate claim therein is to be understood in the context that property devised under a
will was alleged in the case to have been impressed with the character of joint family
property, by the male members of the family. In Rajani Kanta Pal (supra) also, the
blending was alleged to have been done by a male member of a joint family and the real
controversy was whether the Mitakshara rule of blending applied in the case of brothers
living together and forming a joint family governed by the Dayabhaga school of law. The
Privy Council held that the rule of blending extended to Dayabhaga families also. In the
case decided by the Delhi High Court in Munshi Lal, (supra) it is true that one of the
assessees was a female member of a Hindu undivided family and the contention was that
she had impressed her separate property with the character of joint family property. It is,
however clear from the judgment of the High Court that the question whether a female
member of a joint Hindu family can blend her property with joint family property was not
urged or considered in that case. The capacity or competency to blend was assumed both
as regards the male and the female assessee who were members of joint Hindu family. It
was on that assumption that the question was referred to the High Court for its opinion
under Section 26(1) of the Gift-tax Act, 1958 whether the act of throwing the self-acquired
property into the common hotchpotch amounted to a gift as defined in the Gift-tax Act.
Following the decision of this Court in Goli Eswariah v. Commissioner of Gift-tax,
MANU/SC/0258/1970 : [1970]76ITR675(SC) the Delhi High Court held that the
transaction did not amount to a gift and, therefore, the gift-tax was not attracted. Thus, in
none of these three cases cited by the appellant, was the competency of incorporation of
separate property with joint family property in issue.
21. The decision of the Privy Council in Shiba Prasad Singh v. Rani Prayag Kumari Debi
(supra) is also not to the point. It was held therein that unless the power is excluded by
statute or custom, the holder of a customary impartible estate, by a declaration of his
intention, can incorporate with the estate his self-acquired immovable property and
thereupon the property accrues to the estate and is impressed with all its incidents,
including the custom of descent by primogeniture. The appellant argues that if the holder
of an impartible estate can blend his separate property with the estate of an impartible
estate, there is no reason why a Hindu female should not have the right to blend her
separate property with joint family property. The analogy is misconceived because the true
rule of blending, as we have explained above, is that the right to blend is limited to
coparceners.
22. Having considered the decisions cited at the bar, it may be useful to have a fresh look
at the doctrine of blending. The theory of blending under the Hindu law involves the
process of a wider sharing of one's own properties by permitting the members of one's
joint family the privilege of common ownership and common enjoyment of such
properties. But while introducing new sharers in one's exclusive property, one does not by
the process of blending efface oneself by renouncing one's own interest in favour of
others. To blend is to share along with others and not to surrender one's interest in favour
of others to the exclusion of oneself. If a Hindu female, who is a member of an undivided
family, impresses her absolute, exclusive property with the character of joint family
property, she creates new claimants to her property to the exclusion of herself because not
being a coparcener, she has no right to demand a share in the joint family property by
asking for a partition. She has no right of survivorship and is entitled only to be
maintained out of the joint family property. Her right to demand a share in the joint family
property is contingent, inter alia, on partition taking place between her husband and his
sons (see Mulla's Hindu Law, 14th Ed. p. 403, para 315). Under Section 3(2) and (3) of
the Hindu Women's Rights to Property Act, 1937 her right to demand a partition in the
joint family property of the Mitakshara joint family accrued on the death of her husband.
Thus, the expression 'blending' is inapposite in the case of a Hindu female who puts her
separate property, be it her absolute property or limited estate, in the joint family stock.
23. It is well settled that a Hindu coparcenary is a much narrower body than the joint
family and it includes only those persons who acquire by birth an interest in the joint or
coparcenary property. These are the three generations next to the holder in unbroken male
descent (see Mulla's Hindu Law, 14th Ed. p. 262, para 213). A Hindu female therefore is
not a coparcener. Even the right to reunite is limited under the Hindu law to males (Mulla,
p. 430, para 342). It does not therefore militate against the fundamental notions governing
a Hindu joint family that a female member of the joint family cannot blend her separate
property, even if she is an absolute owner thereof, with the joint family property.
24. In our opinion, therefore, the income of Rs. 21,544 from Nishat Talkies was not
assessable in the hands of the Hindu undivided family on the basis that the appellant had
blended it with the joint family property.
25. As regards the second question on which this Court had called for a supplementary"
statement, there is no serious controversy that by the declaration dated September 1, 1961
the appellant must be deemed to have made a gift of the items mentioned therein to the
undivided family of which she was a member. The Tribunal's finding to that effect must,
therefore, be confirmed. The income of the property gifted to the Hindu undivided family
will be liable to be brought to tax consistently with this finding and in accordance with
law.
26. In the result, the appeal fails in regard to the first question but will succeed in regard to
the second. There will be no order as to costs.
Commissioner of Income Tax v. L. Balasubramaniam, [1985] 153 ITR 696 (Mad)
Summary: Separate property of a member of a joint Hindu family becomes joint

family property, if it is voluntarily thrown into the common stock. There should be a
clear intention of waiving the separate rights in it as separate property.
Hon'ble Judges: G. Ramanujam and V. Ratnam, JJ.
JUDGMENT
Ramanujam, J.
1. At the instance of the Revenue, the following common question of law has been
referred to this court by the Income-tax Appellate Tribunal for its opinion :
"Whether, on the facts and in the circumstances of the case, the Tribunal was right in
holding that the assessee should be assessed in the status of a Hindu undivided family in
respect of the income derived from the properties got by him on partition between him and
his two brothers and which properties were originally purchased by the assessee's
grandfather in the joint names of the assessee and his brothers ?"
2. The assessee in T.C. Nos. 506 to 508 of 1979 is one L. Balasubramaniam and the
relevant assessment years are 1972-73 to 1974-75. The assessee in T.C. Nos. 527 to 529 of
1979 is one L. Borai Gowder and the relevant assessment years 1972-73 to 1974-75. The
assessees in the above cases are brothers. The assessees' grandfather, one Boraiah
Gowder, had purchased from time to time agricultural lands in Konnamalai and
Sethiamangalam villages in the joint names of the above assessees and their brother, L.
Shanmugam, between 1944 to 1949. As the three brothers were minors at the time of such
purchases, they were represented, respectively, by their their father, Lingappa Gowder,
mother Rajammal and Lingammal, wife of Muniappa Gowder, and the assessees' father's
elder brother. The grandfather died in 1949. Properties were continued to be purchased in
favour of the said there minors until the year 1955. All these properties were subsequently
divided between the three brothers under a partition deed dated October 15, 1972,
registered on January 30, 1973. The preamble to the partition deed mentions that ever
since the date of purchase, the three brothers were jointly enjoying the properties and that
as per the decision of the panchayatdars in 1969, the properties had been partitioned and
are being enjoyed separately since 1969.
3. With regard to the income from the properties allotted to Balasubramaniam in the above
partition, he claimed that he should be assessed for the assessment years 1972-73 to 1974-
75 in the status of a HUF consisting of himself, his wife, Susheela, and two minor
daughters, Usha and Sujatha, on the ground that the properties purchased by his
grandfather in the joint names of himself and his two brothers and later on partitioned are
ancestral in character. The ITO, however, took the view that there is no indication in the
documents of purchase whether the assessees' grandfather at the time of purchase intended
to treat the properties as the separate properties of his minor grandsons or as ancestral
properties in their hands and that, therefore, the properties purchased in the joint names of
the three grandsons will have to be construed as their own individual properties and, as
such, the income therefrom should be assessed in the status of an individual.
4. Similarly, the other assessee, L. Borai Gowder, one of the three brothers, claimed
before the ITO, for the same assessment years that he should be assessed in the status of a
joint family consisting of himself, his wife, Kamalammal, minor daughters,
Santhanalakshmi and Chitra, and minor son Balajee, on the same ground that the
properties purchased by his grandfather in the joint names of his grandsons and
subsequently partitioned are ancestral in character. The ITO rejected this claim also and
proceeded top assess the income from the properties obtained by him on partition in his
individual capacity holding that the purchase documents do not indicate that the
grandfather intended to treat the properties as ancestral properties in the hands of the
grandsons and that, therefore, the properties will have to be construed as their own
individual properties and as such that income should be assessed in the status of an
individual. The ITO relied on the decision of the Supreme Court in Surjit Lal Chhabda v.
CIT MANU/SC/0266/1975 : [1975]101ITR776(SC) , in support of his conclusion.
5. Aggrieved by the orders of the ITO for the three assessment years 1972-73 to 1974-75,
both the brothers, Balasubramaniam and Borai Gowder, appealed to the AAC who
disagreed with the ITO and held that them should be assessed only in the status of a HUF
as the properties in question were at no time the self-acquired properties of the assessees,
and as the assessees were members of a pre-existing joint family and on partition each of
the assessees has become a sole coparcener, the income has to be assessed treating the sole
coparcener as a HUF consisting of himself, his wife and children, According to the AAC,
the decision of the Supreme Court in Surjit Lal Chhabda v. CIT MANU/SC/0266/1975 :
[1975]101ITR776(SC) will not be applicable to these cases but, on the other hand, the
decisions of the Supreme Court in Gowli Buddanna v. CIT MANU/SC/0110/1966 :
[1966]60ITR293(SC) and Narendranath v. CWT MANU/SC/0223/1969 :
[1969]74ITR190(SC) will apply to them.
6. The Revenue took the matter in appeal to the Income-tax Appellate Tribunal contending
that as the sale deeds in the names of the assessees and their brother did not indicate that
the assessees' grandfather had at the time of the purchases intended that the grandsons
should take the properties as ancestral properties and as the recitals in the sale deeds are to
the effect that the transfees will have a right of alienation, the grandfather should be taken
to have intended that the grandsons should take the properties as their absolute properties,
and that, therefore, the view taken by the ITO that the assessment should be in the status
of an individual should be taken to be correct. The Tribunal, however, did not agree with
the said contention of the Revenue but held that under the Hindu law the presumption is
that the assessee and him two brothers with their father constituted a joint family, that the
properties were jointly acquired in the names of the assessee and his two brothers when
they were minors and that there are no express words in the sale deeds indicading an
intention that the properties purchased in the names of the minors should be held them as
their self-acquired properties or that they exclusively belonged to them with absolute
rights of ownership in the properties. On the other hand, the recitals in the purchase
documents indicate that the properties are to be enjoyed from sons to grandson
hereditarily, thereby implying that the properties are to be enjoyed by the minors as joint
family properties. Moreover, according to the Tribunal, the preamble in the partition deed
shows that there was blending and the properties have been impressed with the character
of joint family properties and it is only on that basis they were partitioned among the
assessee and his two brothers. Lastly, the filling of the return in respect of the HUF for the
assessment year 1971-72 shows that the properties have been impressed with the character
of joint family properties and the assessee is entitled to the status of a HUF in respect of
the income from the partitioned properties. Accordingly, the Tribunal upheld the finding
of the AAC and dismissed the departmental appeals. Aggrieved by the decision of the
Tribunal, the Revenue has come before us by way of these references.
7. Before we proceed to deal with the question of law referred to us, we have to refer to
two factors which have been overlooked by the authorities below including the Tribunal.
The authorities below have proceeded on the basis that all the properties have been
purchased by the assessees' grandfather in the names of his three minor grandsons
between the years 1944 and 1955, ignoring the position that the grandfather died in the
year 1949 and as such the acquisitions after his death in 1949 till 1955 could not have
been by the grandfather. Another factual position which has been overlooked by the
authorities below is that in the case of the assessee, Balasubramaniam, he claims to be the
karta of a joint family of himself, his wife and two daughters and in the case of Borai
Gowder, he claims to be the karta of a joint family of himself, his wife, son and two
daughters. In view of the existence of a minor son in the case of Borai Gowder which is
not the case in the case of the assessee, Balasubramaniam, the question naturally arises
whether there is change in the legal incidence.
8. As already stated, the view taken by the Tribunal is that the normal status of every
Hindu family is joint and every such family is joint in food, worship and estate. On the
basis of the said presumption, the assessee and his two brothers with their father should be
taken to constitute am joint Hindu family. Thus far, the view of the Tribunal cannot be
taken exception to. The Tribunal then proceeds to say that as there is no intention in the
various sale deeds that the properties purchased by the assessees' grandfather jointly in the
names of the assessees and their brother are to be held by them as their self-acquired
properties and as the other recitals in the sale deeds indicate that the properties are to be
enjoyed from son to grandson hereditarily, thereby implying that the properties are to be
enjoyed by the minors as joint family properties and as the preamble to the partition deed
shoes that the properties have been impressed with the character of joint family properties
before the partition took place between the three brothers and as, in any event, the filing of
a return by the assessee in the status of a HUF for the assessment year 1971-72 shows that
the properties had been impressed with the character of joint family properties, the
assessee has to be assessed in the status of a HUF. The Tribunal also agreed with the AAC
that the decision in Surjit Lal Chhabda v. CIT MANU/SC/0266/1975 :
[1975]101ITR776(SC) will not apply to the facts of this case and the decision of the
Supreme Court in Gowli Buddanna v. CIT MANU/SC/0110/1966 : [1966]60ITR293(SC)
and Narendranath v. CWT MANU/SC/0223/1969 : [1969]74ITR190(SC) will apply to
them.
9. On a due consideration of the matter, we are not in a position to appreciate the

reasoning of the Tribunal. In the earlier part of its judgment, the Tribunal rightly
proceeded on the basis that the assessee and his two brothers along with their father
constituted a Hindu joint family. But the assessee's case is that the property purchased
under the various sale deeds belong not to the bigger joint family of themselves and their
father but that they belong to the HUF of himself, his wife and children. Admittedly, the
properties purchased in the name of the three brothers made been divided only between
the three brothers and their father was not a party to the partition deed. This conduct of
dividing properties as between the three brothers clearly indicates that the property was
never considered as the property of the bigger joint family of the three brothers and their
father. If the contention of the assessees raised before the AAC and before the Tribunal
that the properties were thrown into the common stock by blending and that they have
been impressed with the character of joint family properties before partition between the
three brothers, then the properties will have to be treated as the joint family properties of
the three brothers and their father. We do not see how when their father is alive, the three
brothers can partition the properties as between themselves without reference to the father,
if the properties are impressed with the character of joint family by the conduct of the
three brothers. Therefore, the conduct of the three brothers dividing the properties
amongst themselves without reference to the father would indicator that the properties
acquired by them were only in the nature of self-acquired properties and they are not
either ancestral or of the joint family. As pointed out by the Supreme Court in Goli
Eswariah v. CGT MANU/SC/0258/1970 : [1970]76ITR675(SC) , the existence of a
coparcenary is absolutely necessary before a coparcener can throw into the common stock
his self-acquired properties and the separate property of a member of a joint Hindu family
may be impressed with the character of joint family property, if it is voluntarily thrown by
him into the common stock with the intention of abandoning his separate claim therein
and the separate property of a Hindu ceases to be separate property and acquires the
characteristics of joint family or ancestral property not by any physical mixing with his
joint family or his ancestral property but by his own volition and intention by his waiving
and surrendering his separate rights in it as separate property. In this case, the fact that the
three brothers divided the properties as between themselves without reference to the father
all of whom constituted a HUF clearly leads to the inference that the three brothers have
not renounced their individual right in the property and had not treated the properties
purchased as that of the family. Merely because the properties have been purchased by the
grandfather in the name of his there grandsons, the property cannot automatically become
the ancestral property of the property of the joint family consisting of the three brothers
and their father. It is not as case of inheritance from the grandfather in which case alone
the property inherited will become ancestral property. Here the consideration for the
purchase in favour of the grandsons came from the grandfather. The mere fact that the
source was from the grandfather does not make the property purchased ancestral in any
manner. Thus, till the date of partition, the property purchased had not become the
property of the joint family of the three brothers and their father but had continued to be
their separate properties. If the three brothers treated the properties acquired between the
years 1944 - 1955 as joint family properties by renouncing their individual right and
making them the joint family properties either by blending or by throwing into the
common hotchpot and thereafter they have been subjected to a partition between all the
members of the joint family including the father, then, it may be possible to say that the
property allotted to each of the three brothers is ancestral in character or that it continues
to have the character of joint family as between each of the brothers and their children.
But that is not the case here. Here it is not the case of the assessees at any stage that the
properties purchased in their favour became the properties of the bigger joint family of
themselves and their father in which case alone the property allotted on a partition of that
family can be taken to be ancestral. Once it is conceded that at the time of the purchase,
the three brothers and their father constituted a joint family, then, so long as the joint
family continued, the three, brothers cannot claim to be separate and independent units
representing their respective joint family. As pointed out by Mayne in his Treatise on
Hindu Law and Usage, 11th edition, paragraph 281A, so long as a family remains an
undivided family, two or more members of it, whether they be members of different
branches or of one and the same branch of the family, can have no legal existence as a
separate independent unit. It is true no doubt that all the members of a branch, or of a sub-
branch, can from a distinct and separate corporate unit within the larger corporate family,
and hold property as such, and such property will be joint family property of the members
of the branch inter se which will be separate property of that branch in relation to the
larger family. But, here, at the time of acquisition of property there was no sub-branch,
unless the assessees in this case establish that the properties acquired in their names were
either ancestral or have become joint family property, the same cannot be claimed to
belong to the joint family of which each of the assessees is karta. It is no doubt true, a
property many be joint family property without having been ancestral. Where the
members as a joint family acquire property by or with the assistance of joint funds or by
their joint exertion or in joint business or by a gift or grant made to them as a joint family,
such property is the coparcenary property of the persons who have acquired it, whether it
is an increment to the ancestral property or whether it has arisen without any nucleus of
the ancestral property. In this case, the property came to be acquired in the name of the
three brothers by the monies provided by the grandfather. Therefore, it cannot be said that
the properties have been given either to the joint family of the three brothers and their
father or that the properties are acquired by the members of the family by common
exertion or with the aid of common funds. Therefore it is clear that the properties could
not have become the properties of the larger joint Hindu family of the three brothers and
their father. If as contended by the assessees and as held by the Tribunal, the property
purchased had been blended with and thrown into the common stock by the three brothers,
then the property would have been divided between all the coparcenrs including the father.
In this case, the partition has taken place without reference to the father and that means
that the three brothers intended to treat the property separately without blending it with the
properties of the joint family consisting of themselves and their father. Therefore, the
properties right through continued to be the separate properties of the three brothers and
they have been divided by the three brothers only on that basis. Hence, the properties
allotted to the three brothers on partition as between themselves without reference to the
father can never be treated as having the ancestral character or of joint family character in
their hands.
10. Then the question is whether the facts in this case attract the application of the
decision of the Supreme Court in Surjit Lal Chhabda v. CIT MANU/SC/0266/1975 :
[1975]101ITR776(SC) , as contended by the Revenue, even if the properties are taken to
belong to their joint families. In that case, the assessee had a wife and an unmarried
daughter. On January 26, 1956, the assessee made a declaration that he had thrown the
immovable property called "Kathoke Lodge", which was his self-acquired property, into
the family hotchpot in order to impress that property with the character of joint family
property and that he would be holding that property as the karta of the joint Hindu family
consisting of himself, his wife and his unmarried daughter. The question was whether the
income received by the assessee thereafter from the property should be assessed to
income-tax in the status of a HUF. The Supreme Court held that the assessee, his wife and
unmarried daughter were no doubt members of a HUF but until the birth of a son, the
personal law of the assessee regarded him as the owner of the "Kathoke Lodge", and the
income therefrom as his income even after the property was thrown into the family
hotchpot, and, therefore, the income was chargeable to income-tax in the hands of the
assessee as his individual income and not that of the family. Thus, though the Supreme
Court held that the assessee, his wife and unmarried daughter may be members of a HUF,
since the karta of that family is only sole surviving coparcener, the income of the
properties belonging to the family has to be assessed only in the hands of the karta in his
individual capacity and not in the status of a HUF. In that case, though the Supreme Court
held that there could be a HUF with only one male member, the income from the
properties which had been admittedly thrown into the hotchpot was held assessable only in
the hands of the sole co-parcener in his individual capacity and not in the status of a HUF.
The said decision of the Supreme Court appears to apply to the case of Balasubramaniam,
the assessee in T.C. Nos. 506 to 508 of 1979, for, his undivided family consists of only
himself, his wife and two unmarried daughters and so long as there is no other male
member, the assessment has to be made only on the assessee in his individual capacity,
though he is a karta of the said HUF. But that decision may not apply to the assessee in
T.C. No. 527 to 529 of 1979 as admittedly his undivided family consists of himself, his
wife, a son and two minor daughters. However, having regard to the fact that we have
earlier held that the properties got by the three brothers on partition were only their
separate self-acquired properties, unless there is a subsequent throwing into the hotchpot
of their families, the properties cannot be taken to be either ancestral or belonging to the
joint family. Therefore, the income from the properties has to be assessed in the hands of
the karta in his individual capacity.
11. The AAC and the Tribunal had chosen to apply the decisions of the Supreme Court in
Gowli Buddanna v. CIT MANU/SC/0110/1966 : [1966]60ITR293(SC) and Narendranath
v. CWT MANU/SC/0223/1969 : [1969]74ITR190(SC) . But a close reading of those
decisions will show that the facts in those cases were entirely different. In Gowli
Buddanna v. CIT MANU/SC/0110/1966 : [1966]60ITR293(SC) . one Buddappa, his wife,
his two unmarried daughters and his unmarried son, Buddanna, were members of a HUF.
Buddappa died and after his death the question arose whether the income of the properties
held by Buddanna as the sole surviving coparcener was assessable as the individual
income of Buddanna or as the income of the HUF. It was held by the Supreme Court that
since the property which came into the hands of Buddanna as the sole surviving
coparcener was originally joint family property, it did not cease to belong to their joint
family and income from it was assessable in the hands of Buddanna as income of the
HUF. In Narendranath v. CWT MANU/SC/0223/1969 : [1969]74ITR190(SC) , a
coparcener having a wife and two minor daughters and no son received his share of the
joint family properties on partition. The said property in the hands of the coparcener was
held to belong to the HUF of himself, his wife and minor daughters and that the income
therefrom was held not assessable in his individual capacity for the purpose of wealth-tax.
It is thus seen that in both the cases, the property originally belonged to the joint family
and as a result of reduction in the number of coparceners, the property came into the
possession of a sole surviving coparcener having a wife and minor daughters. Since the
property devolved on the sole surviving coparcener from the joint family either by
partition or by reduction in the number of coparcener, it was held that the property belongs
to them HUF and not to the karta in his individual capacity. But in this case, the property,
the income of which is sought to be assessed, has been held to be separate and not
ancestral and, therefore, the assessment has to be made only in the name of the assessee in
his individual capacity and not in the status of a HUF.
12. The matter has been recently considered by a Division Bench of this court in CIT v.
Balasubramaniam [1981] 122 ITR 529. In that case, there was a gift of self-acquired
property of the father to his unmarried son who held it for the benefit of his son's family
after marriage. After the said gift, the assessee married and begot a daughter. The question
arose whether the income from the gifted property and the accretion thereto is to be
assessed in the name of the son in the status of an individual both for income-tax and
wealth-tax purposes or he should be assessed in the status of HUF. This court pointed out
that in determining whether the property belongs to the HUF or is individual property,
there are two classes of cases, each requiring a different approach, that in cases falling
within the rule of Gowli Buddanna's case MANU/SC/0110/1966 : [1966]60ITR293(SC) ,
the question would be whether the property which belonged already to a subsisting
undivided family ceased to have that character merely because the family was represented
by a sole surviving coparcener, that in the other class of cases falling within the rule laid
down in Kalyanji Vithaldas' case [1937] 5 ITR 90, the question would be whether the
property which did not belong to a subsisting undivided family, has truly acquired the
character of a joint family property in the hands of the assessee. With reference to this
class of cases, the composition of the family is a matter of great relevance, for, though a
joint Hindu family may consist of a man, his wife and daughter, the mere existence of a
wife and daughter would not justify the assessment of income in the status of a joint
family. Ultimately, the court held that as the gift made by the father to his unmarried son
was of his self-acquired property and not ancestral or joint family character in his hands, it
has to be assessed in the son's hands only in the individual capacity till a son is born when
the legal incidence of the property might change. The said decision also squarely applies
to the facts of this case. We have to, therefore, hold that the assessment in the case of both
the assessees cannot be in the status of an undivided family but in their individual
capacity.
13. The learned counsel for the Revenue then contends that even if the decision in Surjit
Lal Chhabda v. CIT MANU/SC/0266/1975 : [1975]101ITR776(SC) , does not apply to
the assessee, Bora Gowder, as he had a son, the throwing into the common hotchpot as
found by the Tribunal being subsequent to December, 1969, the amendment to s. 64 of the
I.T. Act comes into operation. Section 64(2) states that in the case of an individual being a
member of a HUF any separate property of the individual has at any time after December
31, 1969, been converted by the individual into property belonging to the family through
the act of impressing such separate property with the joint family character or throwing
into the common stock of the family, then not withstanding anything contained in any
other provisions of the Act or in any other law for the time being in force, for the
computation of the total income of the individual under the Act for any assessment year
commencing on or after first of April, 1971, the income derived from the converted
property or any part thereof so far as it is attributable to his interest shall be deemed to
derive to the individual and not to the family. This provision will apply to these cases as
the assessment years are 1972-73 to 1974-75. The Tribunal has not, however, considered
this aspect of the case. Therefore, even if the property is taken to have been thrown into
the common stock as found by the Tribunal, it was only from January 31, 1973, when the
properties were partitioned between the three brothers. Therefore, it comes within the
mischief of s. 64(2) and the income derived from the property which is said to have been
thrown into the common stock has to be assessed only in the individual capacity of the
assessee and not in the capacity of a joint Hindu family.
14. Thus, in any view of the matter, we have to disagree with the conclusion arrived at by
the Tribunal. We, therefore, answer the question referred to us in the negative and in
favour of the Revenue. No costs.
CM Shah v. CIT, (1992) 1 SCC 76
Summary: The gains earned by a member of a Hindu Undivided family on account

of the skill and labour put in by him are his seperate property. Such a member can
enter into a valid partnership with the HUF that he is a part of and the earnings
made by him would constitute his separate property and not a part of the Joint
Family Property.
JUDGMENT
OJHA J. - This appeal by special leave has been preferred against the judgment dated July
22, 1975, of the (BOM)bay High Court in Income-tax Reference No. 95 of 1965 made
under section 66 (1) of the Indian Income tax Act, 1922. The assessment year under
reference is 1961-62.
Chandrakant Manilal Shah was the karta of a Hindu undivided family (HUF) and the
family was carrying on business in cloth. Naresh Chandrakant, one of the sons of
Chandrakant Manilal Shah, joined the business on a monthly salary of Rs. 100 since about
April, 1959. It was asserted that, with effect from November 1, 1959, the business had
been converted into a partnership between Chandrakant Manilal Shah as karta of the
Hindu undivided family and Naresh Chandrakant. The deed of partnership executed in this
behalf on November 12, 1959, indicated that Naresh Chandrakant had been admitted as a
working partner with effect from November 1, 1959, having 35 per cent. share in the
profits and losses of the firm and the remaining 65 per cent. share was held by
Chandrakant Manilal as the karta of the Hindu undivided family. An application was made
for registration of the firm which was dismissed by the Income-tax Officer on the ground
that there was no valid partnership. The view taken by the Income-tax Officer was upheld
in appeal by the Appellate Assistant Commissioner. On further appeal, the Income-tax
Appellate tribunal also came to the same conclusion that there was no valid partnership
and the business consequently must be taken to continue in the hands of the joint family.
However, at the instance of the assessee, the following question was referred by the
Tribunal to the High Court for its opinion :
"Whether, on the facts and in the circumstances of the case, there was a valid partnership
under annexure A between Shri Chandrakant, as the karta of the Hindu undivided family
and Shri Naresh, a member of the family ?"
The High Court, by its judgment under appeal, answered the aforesaid question in the
negative, in favour of the Revenue and against the assessee. In doing so, it relied an earlier
decision of that court in Shah Prabhudas Gulabchand v. CIT MANU/MH/0130/1970 :
[1970]77ITR870(Bom) . It is against this judgment that the assessee has come up in
appeal to this court.
It has been urged by learned counsel for the appellants that the mere fact that Naresh
Chandrakant had neither separated from the Hindu undivided family nor brought in any
cash asset as his capital contribution to the partnership but was contributing only his skill
and labour could not, in law, detract from a valid partnership being created. Learned
counsel for the respondent, on the other hand, contended the view taken in this behalf by
the Tribunal and the High Court was correct and was not only supported by the decision
relied on by the High Court referred to the above but also by another decision of the
Gujarat High Court in Pitamberdas Bhikhabhai and Co v. CIT MANU/GJ/0017/1962 :
[1964]53ITR341(Guj) .
Having heard learned counsel for the parties, we are inclined to agree with the submission
made by learned counsel for the appellants. In our view, this contention derives full
support from the view of the Judicial Committee of the Privy Counsel in Lachhman Das v.
CIT [1948] 16 ITR 35. There, the question which fell for consideration was (at p. 36) :
"Whether, in the circumstances of this case, there could be a valid partnership between
Lachhman Das as representing a Hindu divided family on the one hand and Daulat Ram, a
member of the undivided family in his individual capacity, on the other ?"
In other words, the question was the same as the one arising in the present case but for the
difference in the factual background that, whereas in the case before the Judicial
Committee, the member has brought in his separate capital, the member in the present
case claims himself only to be a working partner. Does this difference in facts make a
difference in principle ? That is the question.
In Lachhman Das case [1648] 16 ITR 35 , it had been urged before the High Court for the
assessee that, when the karta of a Hindu undivided family could enter into a partnership
with a stranger as held by the Privy Counsel in P. K. P. S. Pichappa Chettiar v.
Chockalingam Pillai MANU/PR/0035/1934, there was no reason why a coparcener also
could not enter into such a partnership by making contributions in his individual capacity
from his separate funds. This plea was repelled by the High Court on the ground that a
coparcener could not be regarded as a stranger so long as he continued his connection with
his undivided family in his capacity as a coparcener. While reversing the judgment of the
High Court, it was held by the Privy Counsel (p. 40) :
"After careful consideration, their lordships cannot accept this view and on general
principles they cannot find any sound reason to distinguish the case of a stranger from that
of a coparcener who puts into the partnership what is admittedly his separate property held
in his individual capacity and unconnected with the family funds. Whatever the view of a
Hindu joint family and its property might have been at the early stages of its development,
their Lordship think that it is now firmly established that an individual coparcener, while
remaining joint, can possess, enjoy and utilise, in any way he likes, property which was
his individual property, not acquired with the aid of or with any detriment to the joint
family property. It follows from this that to be able to utilise this property at his will, he
must be accorded the freedom to enter into contractual relations with others, including his
family, so long as it represent in such transactions by a definite personality like its
manager. In such a case he retains his share and interests in the property of the family,
while he simultaneously enjoys the benefit of his separate property and the fruits of its
investment. To be able to do this, it is not necessary for him to separate himself from his
family. This must be dependent on other considerations, and the result of a separate act
evincing a clear intention to break away from the family. The error of the Income-tax
officer lay in his view that, before such a contractual relationship can validly come into
existence, the natural family relationship must be brought to an end. This erroneous view
appears to have coloured his and the subsequent decisions of the income-tax authorities.
In this view of the Hindu law, it is clear that if a stranger can enter into partnership with
reference to his own property, with a joint Hindu family through its karta, there is no
sound reason in their Lordships view to withhold such opportunity from a coparcener in
respect of his separate and individual property."
The aforesaid view of the Privy Counsel was approved by this court in Firm Bhagat Ram
Mohanlal v. CEPT MANU/SC/0077/1956 : [1956]29ITR521(SC) , but on the facts of that
case, it was held that the partnership set up in that case was not valid.
The above principle has been applied by several High Courts to uphold the validity of a
partnership between the karta of a Hindu undivided family and an individual member of
the family where the latter is taken in as a working partner. In I. P. Munavali v. CIT
MANU/KA/0003/1969 : [1969]74ITR529(KAR) , it was held by the Mysore High Court,
after referring to the decision of this court of the Privy Counsel in the case of
Lacchmandas [1948] 16 ITR 35 and of this court in the case of Firm Bhagat Ram
MANU/SC/0077/1956 : [1956]29ITR521(SC) :
"So it is clear that the Supreme Court did not dissent from the opinion expressed by the
Privy Counsel that in respect of their separate or divided property the coparceners of a
Hindu joint family, even though they had not become divided from one another and there
had been no partition of the family properties, could become partners of a firm of which
the joint Hindu family represented by its karta is itself a partner.
If a partner by putting into the partnership by way of his capital his separate property or
the property he obtained at a partition on division and thus can become a partner with the
family represented by its karta, it is difficult to understand how such a partnership cannot
come into being and why a coparcener who continues to remain a member of the
coparcenery cannot become a working partner of a firm of which he and the family
represented by its karta are the partners. In Lachhman Das case [1948] 16 ITR 35 , the
coparcener place at the disposal of the firm as his capital his separate property, and in the
case of a working partner he contributes his skill or labour or both as the case may be. If
the partnership is permissible in one case, it would be difficult to assign any reason for
reaching the conclusion that it is not permissible in the other."
In Ramchand Nawalrai v. CIT MANU/MP/0103/1980 : [1981]130ITR826(MP) , it was

held by the Madhya Pradesh High Court as here under (pp. 832, 833, 834) :
"It will be clear from the facts of the case of Firm Bhagat Ram Mohanlal
MANU/SC/0077/1956 : [1956]29ITR521(SC) that the question whether a coparcener can
enter into a valid partnership with the karta of his family by contributing merely skill and
labour did not arise for decision. The only question in the case was whether the individual
members of a Hindu undivided family can, without contributing anything, become
members of a partnership constituted between the karta and strangers. This question had
necessarily to be answered in the negative on the settled view that when a karta enters into
a partnership with strangers it is the karta alone who is the partner. The observations of the
Supreme Court that (p. 526) : If members of a coparcenary are to be regarded as having
become partners in a firm with strangers, they would become under the partnership law
partners inter se, and it would cut at the very root of the notion of a joint undivided family
to hold that with reference to coparcenary properties the members can at the same time be
both coparceners and partners, as contained in the passage quoted above, must be limited
to the facts on which Firm Bhagat Ram Mohanlals case MANU/SC/0077/1956 :
[1956]29ITR521(SC) was decided. The Supreme Court in the same passage referred to the
decision of the Privy Counsel in Lachhman Das case [1948] 16 ITR 35 and did not
disapprove of it. If a coparcener by contributing is separate property can enter into a valid
partnership with the karta of his family, as held by the Privy Counsel in Lachhman Das
case [1948] 16 ITR 35 , there seems no valid reason why a coparcener cannot, by
contributing merely his skill and labour, enter into a partnership with karta. If the former
does not cut at the root of the notion of the joint Hindu family, the latter also does not.
Even in the case of the former, the partnership property will consist of the contribution
made by the karta from the coparcenary property and the contribution made by the
coparcener of his individual property. Both taken together would become partnership
property in which all the partners would have interest in proportion to their share in the
joint venture of the business of partnership (Addanki Narayanappa v. Bhaskara
Krishnappa MANU/SC/0281/1966 : [1966]3SCR400 . If in such a situation the coparcener
entering into the partnership can be a partner in relation to coparcenary property
contributed for the partnership business, there can be no difficulty in holding that the same
result would follow when the coparcener entering into a partnership only contributes his
skill and labour. In the former case, as stated by the Privy Counsel in Lachhman Das case
[1948] 16 ITR 35, the coparcener entering into the partnership retains his share and
interest in the family property while simultaneously enjoying the benefit of his separate
property and fruits of its investment. In the same way, it can be said that in the latter case
the coparcener retains his share and interest in the property of the family while
simultaneously enjoying the benefits of his skill and labour which he contributes as
consideration for formation of the partnership and for sharing profits.
Learned standing counsel for the Department further submitted that as the profits earned
by a partnership in which the contribution of capital is only of joint family funds from the
side of the karta would enure to the benefit of the entire joint family being earned with the
help of the joint family funds, a coparcener who only contributes his skill and labour for
becoming a partner cannot claim any share in the profits as his separate property and
therefore, there cannot be any valid partnership. Learned counsel in this connection relied
upon the case of V. D. Dhanwatey v. CIT MANU/SC/0193/1967 : [1968]68ITR365(SC) .
Dhanwateys case has to be read along with the case of CIT v. D. C. Shah
MANU/SC/0199/1969 : [1969]73ITR692(SC) . In Dhanwateys case
MANU/SC/0193/1967 : [1968]68ITR365(SC) the karta of a Hindu undivided family who
entered into a partnership was paid a salary from the partnership and it was held that the
salary income was the income of the Hindu undivided family. The basis of the decision
was that the salary was paid because of the investments of the assets of the family in the
partnership business and there was a real and sufficient connection between the
investments from the joint family funds and the remuneration paid to the karta. In Shahs
case MANU/SC/0199/1969 : [1969]73ITR692(SC) also the karta entered into a
partnership and was paid remuneration. But as the remuneration was paid for the specific
acts of management done by the karta resting on his personal qualification that the
remuneration was his individual income. Applying the same principle, if a coparcener
becomes a working partner in a partnership with the karta and gets a share in profits in
consideration of the skill and labour contributed by him, his share in the profits would be
his separate property for the profits coming to his share would be directly related to his
skill and labour and not to investments of the joint family funds in the business. The
question, however, whether a coparcener entering into a partnership with the karta does
really contribute any labour of skill for the management of the partnership business in
which he is given a share in profits is a question of fact which will have to be determined
in the light of the circumstances of each case. In case it is found that there is no real
contribution of skill or labour by the coparcener for sharing the profits, the partnership
will be held to unreal and fictitious but that is an entirely different thing from saving that
there cannot be a valid partnership between the karta and a coparcener when the latter only
contributes his skill and labour and is merely a working partner. In our opinion, the
argument that as the capital investment in the partnership is only of the funds of the
undivided family, there cannot be any partnership, cannot be accepted.
The conclusion reached by us is fully supported by the decision of the Mysore High Court
in I. P. Munavalli v. CIT MANU/KA/0003/1969 : [1969]74ITR529(KAR) , with which
we respectfully agree. The (BOM)bay High Court in Shah Prabhudas Gulabchand v. CIT
MANU/MH/0130/1970 : [1970]77ITR870(Bom) took a contrary view. With great respect
and fro the reasons given above, we are unable to agree with it."
In CIT v. Gupta Brothers MANU/UP/0292/1980 : [1981]131ITR492(All) , the Allahabad

High Court took the same view when it said (p. 496) :
"The observations of the Privy Counsel that a partnership can be formed with a junior
member by the karta qua his separate property is by way of illustration of a particular
eventuality when the separate property constitutes consideration for the induction of a
junior member into the partnership. It cannot be read as being exhaustive of cases where
consideration may take forms. Now, as labour and skill would also be consideration as
contemplated by the Contract Act, a valid partnership had come into existence, which
ought to have been registered."
Learned counsel for the respondent has laid considerable emphasis on two points. Firstly,
it was urged that Hindu law does not recognise any contract among the coparceners inter
se except in two cases, namely, where there is a partial partition and where a coparcener
has separate property and brings in such separate property as capital towards consideration
for becoming a partner. While elaborating the first point, it has been urged that if, even in
a case where there is neither partial partition nor any separate property brought in by the
coparcener as consideration for the partnership it is held that a valid partnership can still
come into existence, it would create an anomalous inasmuch as such coparcener would be
having an interest in the coparcenary property both as a coparcener and as a partner.
Reliance in this behalf has been placed on the following observations made in the case of
Firm Bhagat Ram Mohanlal MANU/SC/0077/1956 : [1956]29ITR521(SC) :
"If members of a coparcenary are to be regarded as having become partners in a firm with
strangers, they would also become under the partnership law partners inter se, and it
would cut at the very root of the notion of a joint undivided family to hold that with
reference to coparcenery properties the members can at the same time be both coparceners
and partners."
The second point emphasised by learned counsel for the respondent is skill and labour
cannot be treated as property.
It must be confessed that the observations made in the case of Firm Bhagat Ram Mohanlal
MANU/SC/0077/1956 : [1956]29ITR521(SC) relied upon do appear to support the
contention of the Revenue. In the case of Firm Bhagat Ram Mohanlal v. CEPT
MANU/SC/0077/1956 : [1956]29ITR521(SC) , a partnership had been entered into in
1940 between Mohan Lal (M) and two outsiders (R & G), M admittedly representing a
Hindu undivided family consisting of himself and his two brothers Chotelal (C) and
Bansilal (B). In 1944, the Hindu undivided family god divided and, consequently, the firm
was reconstituted with five partners, viz., the two outsiders (R & G), M, C and B. This
according to the Revenue, had resulted in a "change in the persons carrying on the
business" leading to certain consequences adverse to the assessee in the context of the
Excess Profits Tax Act. The firm attempted to get over the difficulty in two ways :
(a) it was contended that, even initially, in 1940, the firm must be considered as having
been constituted with all the five persons, R, G, M, C and B, as partner; in other words
when entered into the partnership on behalf of the Hindu undivided family, the
consequence was that not only but this two undivided brothers B and C also become
partners in the firm in their individual capacity; and
(b) it was suggested that when entered into the partnership agreement in 1940, all the three
coparceners M, C and B, could be regarded as having entered into the contract as kartas of
(i.e., representing the Hindu undivided family.
Both these contentions were negatived. So far as the first contention was concerned, the
court observed that could be disposed of as being an afterthought opposed to the factual
findings in the case. However, the court proceeded to observe that it was difficult to
visualise a situation which the appellants contended for, of a Hindu undivided family
entering into a partnership with strangers through its karta and the junior members of the
family also becoming its partners in there personal capacity. After referring to Lachhman
Das case [1948] 16 ITR 35 and Sunder Singh Majithia v. CIT [1942] 10 ITR 457 where
divided members of a family were held competent to carry on the erstwhile joint family
business in partnership, the court pointed out (p. 526 of 29 ITR) :
"But in the present case, the basis of the partnership agreement of 1940 is that the family
was joint and that Mohanlal was its karta and that he entered into the partnership as karta
on behalf of the joint family. It is difficult to reconcile this position with that of Chotelal
and Bansilal being also partners in the firm in their individual capacity, which can only be
in respect of their separate or divided property."
This was followed by the observations on which Sri Manchanda, learned counsel for the
revenue, has placed considerable reliance. similarly, so far as contention (b) was
concerned, the court observed that "even if such a contention could raised consistently
with the principles of Hindu law", it was in teeth of the pleadings in the case and so could
not allowed to be raised. These passages no doubt suggest that, in the courts view, an
undivided member of a Hindu undivided family cannot be a partner along with the karta of
the family, expect where he furnishes capital in the form of property belonging to him in
his individual right or obtained by him on a partition of the family and that the court left
open the question whether more than one member of a Hindu undivided family can
represent the family in a partnership with outsiders.
It will be apparent that this court had rejected both the contentions of the assessee as being
an afterthought or contrary to the factual findings in the case. This was sufficient to
dispose of the case. However, the further expressions of opinion, coming from such an
eminent judge as Venkatarama Ayyar J., are entitled to the greatest weight and respect.
We, however, think that the scope of these observations, made in context of the special
facts and circumstances of the case, has been magnified by learned counsel for the
revenue. We may observe, at the outset, that his basic postulate that, under the Hindu law,
there can no contract inter se between the undivided member of the family is basically
incorrect. This court has recognised the validity of such contract in various situations. For
instance, an undivided member of a Hindu undivided family (including its karta) can be
employed by the Hindu undivided family for looking after the family business and paid a
remuneration therefor : vide Jitmal Bhuramal v. CIT MANU/SC/0221/1962 :
[1962]44ITR887(SC) and Jugal Kishore Baldeo Sahai v. CIT MANU/SC/0120/1966 :
[1967]63ITR238(SC) . Again, on the second contention which was left open, subsequent
decisions of this court have held that it is open to more than one member of the Hindu
undivided family to represent the family in partnership with strangers. In CIT v. Sir
Hukumchand Mannalal and Co. MANU/SC/0233/1970 : [1970]78ITR18(SC) , it was held
by this court (p. 21) :
"The Indian Contract Act imposes no disability upon members of a Hindu undivided
family in the matter of entering into contract inter se or with a stranger. A member of a
Hindu undivided family has the same liberty of contract as any other individual : it is
restricted only in the manner and to the extent provided by the Indian Contract Act.
Partnership is under section 4 of the Partnership Act the relation between persons who
have agreed to share the profits of a business carried on by all or any of them acting for all
: if such a relation exists, it will not be invalid merely because two or more of the persons
who have so agreed are members of a Hindu undivided family."
This position has also been recognised in Ratanchand Darbarilal v. CIT

MANU/SC/0156/1985 : [1985]155ITR720(SC) . In that case, there were two firms, one at
Katni and one at Satna, constituted by two members of an undivided family with others.
The question posed however was whether the Satna firm could be treated as an
independent unit of assessment. This court held that it was a question of fact on which the
Tribunals findings were conclusive. In this view, it left unanswered, as academic, the
following questions on which the commissioner had sought a reference (p. 725) :
"Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was
justified in directing that the firm owning the Satna business should be registered in spite
of the fact that the members of the two Hindu undivided families entered as partners inter
se without their effecting in the first instance a severance of joint status by partitioning
either partially or totally, the assets of the respective Hindu undivided families ?"
however, in the course of its judgment, the court observed (p. 727) :
"The High Court obviously fell into an error in proceeding on the footing that, without a
partition or a partial partition, some of the members belonging to the Hindu undivided
family could not constitute themselves into a partnership firm. We do not think this view
is correct in law. It is a well-settled proposition applicable to Hindu law that members of
the joint family or the coparcenary, acquire separate property or run independent business
for themselves."
Turning now to the specific observations on which reliance has been placed, we do not
think that they should be read as permitting a partnership between the karta of a Hindu
undivided family and its individual member only when a brings in some capital but not
otherwise. In the context in which they were made, it is seen that they were limited only to
point out that there was no claim before the court, as in Lachhman Das [1948] 16 ITR 35
or Majithia [1942] 10 ITR 457 , that the other member had bought in any separate or
divided property as capital. On the contrary, the claim was that the coparceners of the
Hindu undivided family other than the karta, who was the eo nomine partner should be
regarded as partners, though they had not entered into any such agreement and had placed
neither capital nor services at the disposal of the firm. It was this claim that was held
untenable. Much more significance cannot be read into these observations for, if construed
too strictly and in the manner suggested, they will militate against the possibility of a valid
partnership being formed in two classes of cases about which there can be no doubt. The
first is where an undivided member seeks to become a partner by furnishing capital which
has been held permissible in Lachhman Das [1948] 16 ITR 35 , and approved in Firm
Bhagat Ram Mohanlal MANU/SC/0077/1956 : [1956]29ITR521(SC) , itself. The other is
the case of a partnership firm in which more than one partner represents a Hindu
undivided family the validity of which has been upheld in the cases referred to earlier. The
observations cannot, therefore, be read as precluding altogether a claim by an undivided
member of a Hindu undivided family that he has in fact agreed to become a partner along
with the karta for genuine and valid reasons. In our view, the Allahabad, Madhya Pradesh
and Mysore decisions rightly held that the observations in Firm Bhagat Ram Mohanlal
MANU/SC/0077/1956 : [1956]29ITR521(SC) , do not militate against the formation of a
valid partnership in such cases.
This takes us on to the second point made by Sri Manchanda that, though an undivided
member can, by contributing separate capital, enter into a partnership with the karta qua
the family business, he cannot do so by offering as his contribution to the firm not material
capital but only his labour and skill. With regard to this submission made by learned
counsel for the respondent that skill and labour cannot be equated with property, it may
not be out of place to refer to some earlier history. As has been stated in Mullas Hindu
Law, before the commencement of the Hindu Gains of Learning Act, 1930 (hereinafter
referred to as "the Act"), it was settled law that income earned by a member of a joint
family by the practice of a profession or occupation requiring special training was joint
family property if such training was imparted at the expense of joint family property. This
being so, if such a member of a joint family were to enter into a partnership with the karta
of the family to carry on business, the fruits even of his skill and labour would have been
property of the joint family and the very purpose of entering into a partnership namely
having a share of his own in the profits of the business would have been defeated. In this
state of law, if an agreement was reached between such member of the joint family and the
karta that, out of the profits of the business, a defined share will be payable to and be the
separate property of such member, the agreement would have been illegal. Indeed, such a
member would have been getting a separate share in the profits of the business without
making any contribution of his own.
However, an almost complete transformation in the legal position was brought about by
the Act. Sections 2 and 3 of the Act which are relevant in this behalf read as hereunder :
"2. In this Act, unless there is anything repugnant in the subject or context, -
(a) acquirer means a member of a Hindu undivided family who acquires gains of learning;
(b) gains of learning means all acquisitions of property made substantially by means of
learning, whether such acquisitions be made before or after the commencement of this Act
and whether such acquisitions be the ordinary or the extraordinary result of such learning;
and
(c) learning means education, whether elementary, technical, scientific, special or general,
and training of every kind which is usually intended to enable a person to pursue any
trade, industry, profession or avocation in life.
3. Notwithstanding any custom, rule or interpretation of the Hindu law, no gains of
learning shall be held not to be the exclusive and separate property of the acquirer merely
by reason of -
(a) his learning having been, in whole or in part imparted to him by any member living or
deceased, of his family, or with the aid of the joint funds of this family or with the aid of
the funds of any member thereof, or
(b) himself or his family having, while he was acquiring his learning, been maintained or
supported, wholly or in part, by the joint funds of his family, or by the funds of any
member thereof."
As seen above, the definition of the term "learning" is very wide and almost encompasses
within its sweep every acquired capacity which enables the acquirer of the capacity "to
pursue any trade, industry, profession or avocation in life." The dictionary meaning of
"skill", inter alia, is : "the familiar knowledge of any science, art, or handicraft, as shown
by dexterity in execution or performance; technical ability" and the meaning of "labour",
inter alia, is : "physical or mental exertion, particularly for some useful or desired end."
Whether or not skill and labour would squarely fall within the traditional jurisprudential
connotation of property, e.g., jura in re propria, jura in re alien, corporeal and incorporeal,
etc., may be a moot point but it cannot be denied that skill and labour involve as well as
generate mental and physical capacity. This capacity is, in its very nature, an individual
achievement and normally varies from individual to individual. It is by utilisation of this
capacity that an object or goal in achieved by the person possessing the capacity.
Achievement of an object or goal is a benefit. This benefit accrues in favour of the
individual possessing and utilising the capacity. Such individual may, for consideration,
utilise the capacity possessed by him even for the benefit of some other individual. The
nature of consideration will depend on the nature of the contract between the two
individuals. As is well known, the aim of business is earning of profit. When an individual
contributes cash asset to become a partner in a partnership firm in consideration of a share
in the profits of the firm, such contribution helps and, at any rate, is calculated to help the
achievement of the purpose of the firm, namely, to earn profit. The same purpose is,
undoubtedly, achieved also when an individual in place of cash assets contributes his skill
and labour in consideration of a share in the profits of the firm. Just like a cash asset, the
mental and physical capacity generated by the skill and labour of an individual is
possessed by or is a possession of such individual. Indeed, skill and labour are by
themselves possessions. "Any possession" is one of the dictionary meanings of the word
"property". In its wider connotation, therefore, the mental and physical capacity generated
by skill and labour of an individual and indeed the skill and labour by themselves would
be the property of the individual possessing them. They are certainly assets of that
individual and there seems to be no reason why they cannot be contributed as a
consideration for earning profit in the business of a partnership firm. They certainly are
not the properties of the Hindu undivided family but are the separate properties of the
individual concerned.
To hold to the country, we may observe, would also be incompatible with the practical,
economic and social realities of present day living. We no longer live in an age when
every member of a Hindu undivided family considered it his duty to place his personal
skill and labour at the services of the family with no quid pro quo except the right to share
ultimately, on a partition, in its general property. Today, where an undivided member of a
family is qualified in technical fields - may be at the expense of the family -he is free to
employ his technical expertise elsewhere and the earnings will be his absolute property; he
will, therefore not agree to utilise them in the family business, unless the latter is agreeable
to remunerate him therefor immediately in the form of a salary or share of profits.
Suppose a family is running a business in the manufacture of cloth and one of its members
becomes a textile expert, there is nothing wrong in the family remunerating him by a share
of profits for his expert services over and above his general share in the family properties.
Likewise, a Hindu undivided family may start running a diagnostic laboratory or a nursing
home banking on the services of its undivided members who may have qualified as nurses
or doctors and promising them a share of profits of the "business" by way of
remuneration. This will, of course, have to be the subject-matter of an agreement between
them but, where there is such an agreement, it cannot be characterised as invalid. It is
certainly illogical to hold that an undivided member of the family can qualify for a share
of profits in the family business by offering moneys - either his own or those derived by
way of partition from the family - but not when he offers to be a working partner
contributing labour and services of much more valuable expertise, skill and knowledge for
making the family business more prosperous.
For the reasons discussed above, we have reached the conclusion that the decisions
referred to above which support the contentions of learned counsel for the appellants lay
down the correct legal position. The two decisions relied on by learned counsel for the
respondent in the cases of Pitamberdas Bhikhabhai and Co. MANU/GJ/0017/1962 :
[1964]53ITR341(Guj) and Shah Prabhudas Gulabchand MANU/MH/0130/1970 :
[1970]77ITR870(Bom) , of the Gujarat and (BOM)bay High Courts, respectively, turned
on their particular facts and, if read as laying down a contrary rule, do not lay down good
law. In this view of the matter, it cannot be said that, when a coparcener enters into a
partnership with the karta of a Hindu undivided family and contributes only his skill and
labour, no contribution of any separate asset belonging to such partner is made to meet the
requirement of a valid partnership. Reverting to the facts of the instant case, it is
noteworthy that it is not the case of the Revenue that the partnership between Chandrakant
Manilal Shah as karta of Hindu undivided family and Naresh Chandrakant was fictitious
or invalid on any other ground. Consequently, the judgment of the High Court cannot be
sustained.
In view of the foregoing discussion, this appeal succeeds and is allowed. The judgment of
the High Court is set aside and the question referred to the High Court is answered in the
affirmative, in favour of the assessee and against the Revenue. In the circumstances of the
case, however, there shall be no order as to costs. Appeal allowed.
Gains
Narasimha Murthy v. Susheela Bai, AIR 1996 SC 1826
Summary: A female heir does not have the right to ask for a partition of a dwelling
house. This is the sole prerogative of the male heir. She has a right to a share of the
dweeling house when such a partition taes place at the instance of the male heir.
Hon'ble Judges: Kuldip Singh, Madan Mohan Punchhi and K. Ramaswamy, JJ.
ORDER
K. Ramaswamy, J.
1. One Narasoji Rao, died intestate leaving behind him the appellant, the only son and the
respondents, three daughters, after action at the latter's behest for partition was laid. The
courts below granted preliminary decree for partition in equal shares of the Schedule A
properties which include "the dwelling house of Narasoji Rao". The appellant canvassed
its illegality and impartibility of the dwelling house, by operation of Section 23 of the
Hindu succession Act, 1956, (for short, the 'Act') which was met with dismissal in limine
by the High Court in S.A. No. 1045/91 dated February 21, 1992. Thus this appeal by
special leave. The decree for partition of dwelling house has its support from the ratio of
Kariyavva v. Hanumantappa Mallurappa, (1984) Kar. L.J. 273.
2. The only question argued before us is : whether the dwelling house is partible, when
Narasoji Rao died leaving behind his only son and three daughters? That the house is a
dwelling house is not in dispute. So the need to go into the meaning of the words
"dwelling house" is obviated. There is a cleavage of judicial opinion among High Courts
on their interpretation of Section 23 of the Act which provides thus :
23. Special provision respecting dwelling houses.- Where a Hindu intestate has left
surviving him or her both male and female heirs specified in Class I of the Schedule and
his or her property includes a dwelling house wholly occupied by members of his or her
family, then, notwithstanding anything contained in this Act, the right of any such female
heir to claim partition of the dwelling house shall not arise until the male heirs choose to
divide their respective shares therein; but the female heir shall be entitled to a right of
residence therein.
Provided that where such female heir is a daughter, she shall be entitled to a right of
residence in the dwelling house only if she is unmarried or has been deserted by or has
separated from her husband or is a widow.
3. The object and reasons to enact Section 23 have been stated thus :
This clause restricts the right of a female heir to claim partition of the family dwelling
house so long as the male heirs do not choose to effect partition of the same but expressly
recognises her right to reside in such house.
4. The Orissa, Karnataka, Bombay and Gujarat High Courts have adopted literal meaning
holding that the dwelling house is partible whereas the Calcutta, Madras and Allahabad
High Courts have taken contra view. We are called upon to resolve the conflicting
opinions. The purpose of the law is to meet out justice; in other words, to prevent injustice
or miscarriage of justice. In our view, the interpretation should be consistent with justice
equity and good conscience. Section 8 of the Act provides general rules of succession in
the case of males. When a male Hindu dies intestate, the property shall devolve, firstly,
upon the heirs, being the relatives specified in class-I of the Schedule.... On the death of a
Hindu, the succession to his property is open. In its partition, Section 23 makes a special
provision respecting impartibility of the dwelling house. When a Hindu intestate, whether
male or female, has left surviving him or her both male and female heirs specified in
Class-I of the Schedule and his or her property includes a dwelling house wholly occupied
by members of his or her family, then, notwithstanding anything contained in the Act, the
right of any such female heir to claim partition of the dwelling house shall not arise until
the male heirs choose to divide their respective shares therein; but the female Class-I heir,
like unmarried or widow or deserted or separated daughter of the deceased, shall have the
right of residence therein. When the deceased Hindu left behind him/her, only one male
heir and one or more female heirs, the question emerges: whether the dwelling house is
partible? By operation of non obstante clause, the dwelling house gets excluded from the
operation of the general law of succession envisaged in the Act and a special rule of
succession has been engrafted in Section 23. The claim for partition by female heir shall
not arise "until the male heirs choose to divide their respective shares therein". In other
words, the right of the female heir for partition of the dwelling house is postponed till the
happening of a contingent event, i.e. the decision by the male heirs to partition the
dwelling house in occupation of the family. The literal construction of the above quotation
connotes the existence of more than one male heirs and so long as their volition to remain
in possession and enjoyment of the dwelling house subsists or they do not decide to
partition it or part with possession, the female Class-I heirs are kept at a bay to claim
partition except to the right of residence in the enumerated events.
5. In Arun Kumar Sanyal v. Jnanendra Nath Sanyal, MANU/WB/0046/1975 :

AIR1975Cal232 , the intestate Hindu left behind him one male heir and one female heir.
The daughter transferred her share in the dwelling house to a stranger who laid the suit for
partition. The Calcutta High Court held that Section 23 makes it clear that the legislature
does not approve of division of a dwelling house at the behest of a female heir against the
'will' of the male member. The object is to prevent fragmentation or disintegration of the
family dwelling house at the instance of the female heir to the hardship and difficulties to
which male heir may be put to. The bar is removed only on the happening of the
contingency, namely, when the male heir chooses to divide the dwelling house. It may be
that there is one male heir and one female heir and there may not be any chance of that
contingency to happen, but that will be no ground to say that the Section 23 is
inapplicable. The bar is not a personal bar and it does not come to an end when, the female
heir loses her interest in the dwelling house by transferring the same to another. The case
of a transferee of a female heir is completely different and cannot be equated with that of
the son of a pre-deceased daughter. The above ratio was followed by other Division
Benches of that court in Surya Kumar Das v. Smt. Maya Dutta AIR (1982) Cal 221 and
Smt. Usha Mazumdar and Ors. v. Smt. Smriti Basu MANU/WB/0024/1988 :
(1988)1CALLT35(HC) . In Mookkammal v. Chitravadivammal MANU/TN/0269/1980 :
AIR1980Mad243 , the Madras High Court held that Section 23 is intended to respect one
of the ancient Hindu tenets which treasured the dwelling house of the family as an
impartible asset between a female member and male member. Therefore, the dwelling
house is not liable to partition. But if the sole male member chooses to sell his share in the
dwelling house introducing a stranger, the female heir can file a suit for partition and
possession of her share in the property. In Janabi Animal v. T.S.A. Palani Mudaliar,
MANU/TN/0308/1981 : AIR1981Mad62 , one Swaminatha Mudiliar died intestate
owning extensive properties, leaving behind the plaintiff and other three daughters and
two sons. The daughters laid suit for partition of properties including the dwelling house.
Subsequently, one of the sons died and the sole son was in possession of the dwelling
house. When the question of the applicability of Section 23 had come up for
consideration, the Division Bench held thus :
The above section is a special provision dealing with the partition of a dwelling house and
the right of the male and female heirs of the intestate therein. There can be no doubt that a
female heir specified in Class I of the Schedule to the Act inherits a share in dwelling
house absolutely. But, Section 23 postulates the right of such a female heir to claim
partition of the dwelling housing until the male heirs choose to divide their respective
shares therein. The object behind this section seems to be to prevent fragmentation or
disintegration of a family dwelling house at the instance of a female heir or heirs, to the
prejudice of the male heirs. This is based on the principles embodied in Section 44 of the
Transfer of Property Act. The contrary view will cause gross injustice to the single male
heir and the object of the section will be nullified. The hardship to the female heir of
postponement of partition is relatively less.
6. In Ponnuswamy v. Meenakshi Animal and Ors. MANU/TN/0332/1987 :

(1989)2MLJ506 , another Division Bench reiterated the same view. In Purnawari v.
Sukhadevi, MANU/UP/0200/1986 : AIR1986All139 , the Court took the same view.
7. In Vanitaben Bhaishanker Pandya v. Divaliben Premji and Ors. MANU/GJ/0079/1979 ,

the Division Bench held that for the application of Section 23, the whole house must be
the dwelling house wholly occupied by the members of the family. In that case the house
consisted of residential portion in the occupation of the family and the shop was let out.
So, Section 23 was held to be not applicable.
8. In Hemalata Devi v. Umasankari Moharana, MANU/OR/0056/1975 : AIR1975Ori208 ,

the Division Bench held that if there are more than one main heirs, there would be the
possibility of anyone of such heirs asking for a partition of the dwelling house and the
female heir in such a case cannot claim her share. But where there is a single male heir,
there is no possibility of that male heir claiming any partition against another male heir.
Thus where there is a single male heir and others are female heirs, the female heirs are
entitled to claim partition. Their right to claim partition of the dwelling house is not
excluded by Section 23 of the Act. In Kariyavva's case (supra) only son and daughter were
the class-I heirs of the intestate deceased father. The Bench, while agreeing with the ratio
in Orissa case, held that when there is only one male heir quite obviously the conditions
envisaged by the special provision cannot be satisfied. The succession cannot be kept in
abeyance as indeed, first, the intestate Hindu cannot be said to have left surviving him or
her both male and female heirs and, secondly, the contingency of the male heir choosing
to divide their respective shares therein, does not admit of being fulfilled. Section 23 gets
attracted only where an intestate Hindu leaves surviving both male and female heirs. The
second part deals with a position which becomes relevant only when the section itself is
attracted. The Court further observed thus :
Under the Act, a female heir succeeds to the estate of a Hindu dying intestate. That
succession cannot be held in abeyance. Under certain circumstances, the right to a share
vesting in an heir is rendered an imperfect right in the sense the remedy of reducing it in
essence by actual physical partition is postponed till the happening of another event. The
conditions that make the right imperfect are referred to in the first part of Section 23, i.e.
"that a Hindu intestate has left both male and female heirs and his property includes a
dwelling house wholly occupied by the member of his family." The non-obstinate clause
operates only upon the existence of these conditions. The other event which renders the
right, again a perfect right is the event by which the male heirs choose to divide their
respective shares therein. This would suggest that Section is attracted only if the
conditions contemplated in the first part of the Section comes into existence.
9. If there is only one male heir, the circumstances envisaged in the first part of the
Section do not come into existence and the section does not come into operation at all. The
provisions of this section cannot be applied to a case where there is a single male heir
without rewriting the section and reading into it quite a few alterations of language,
structure and syntax. The expressions "heirs" and "male heirs choose to divide their
respective shares" would then become wholly opposite in meaning. Both the literal
construction and the intendment would suggest that the postponement of partition is
conditional upon there being a plurality of male heirs and not otherwise. Therefore, the
postponement of the right of female heirs to claim partition respecting the family dwelling
house was only where there was a plurality of male heirs, a situation which, in turn,
renders the satisfaction of the next condition, namely, that they choose to divide their
respective shares therein a possibility and a reality. Any other construction would lead to
this that while the section, on its plain language, prescribes a condition which admits of
being fulfilled, we would, by construction, introduce into the section a condition which
does not admit of fulfilment at all. In Anand v. Janaki Bai, MANU/MH/0302/1984 :
AIR1984Bom319 , the Bombay High Court also took the same view.
10. In Mulla's Hindu Law (16th Edn.), revised by Justice S.T. Desai, it is stated thus:
The right of a female heir specified in Class I of the Schedule to demand actual partition
of the family dwelling house is deferred and kept in abeyance until the male heirs
specified in Class I decide the partition it, that is to divide it by metes and bounds or
realise its sale proceeds. Reference may be made to the undermentioned decision of the
Allahabad High Court, Purnawasi v. Smt. Sukha Devi, under agreement has been
expressed with these views. Question may perhaps arise whether the Special restriction
enacted in this section on the right of a female heir to demand actual partition of the
family dwelling house applies when there is only one male heir of the intestate under
Class I of the Schedule. The words 'until the male heirs choose to divide their respective
shares therein' may suggest that there must be at least two such male heirs if the restriction
is to operate. The object of the special provision is to prevent female heirs and particularly
a daughter of the intestate from creating a situation in which partition of the family house
may entail a forced sale of it or otherwise cause hardship to the son or sons of the intestate
where it may not be possible for the son or sons to buy off the share of the female heir
who insists on actual partition of it. It is submitted that there is nothing repugnant in the
subject or context to prevent the operation of the rule laid down in Section 13(2) of the
General Clauses Act to the effect that the plural shall include the singular and the
restriction will apply even where there is only one male heir who does not choose to
divide his respective share in the dwelling house. It would seem that the right of a female
heir to demand partition may be deferred and remain in abeyance under this section till the
lifetime of the male heirs enumerated in Class I of the Schedule or the last survivor of
them unless a partition of the dwelling house is sought by any one of them before such
time. The restriction will cease to operate on the death of the last of such male heirs of the
intestate or where there are only one male heir and one female heir and the male heir
chooses to sell his moiety in the dwelling house.
11. In Raghavachariar's Hindu Law, (8th Edn.) revised by Prof. Venkataraman, it is stated
thus :
The provision that in the case of a dwelling house left by the intestate his or her female
heirs can claim partition thereof only if the male heirs choose to divide their respective
shares therein is a salutary provision designed to avoid confusion shown into the family by
the female members such as the daughters and daughter's daughters whose moorings are
elsewhere on account of their marriage, seeking to take away their shares and throw the
male members into the streets. The disability of female heir to claim a partition when the
male members are not willing to effect a partition is an echo of the law that prevailed prior
to this Act under the Mitakshara under which no female is entitled to a share on a partition
could claim a partition except when the male members of the family effect a partition. The
restriction has been imposed to prevent the fragmentation of the dwelling house at the
instance of female heirs.
12. When succession of a Hindu intestate is open, his/her Class-I heirs specified in the
Schedule is entitled at a partition to their respective shares. The succession cannot be
postponed. However exception has been engrafted by Section 23 respecting tradition of
preserving family dwelling house to effectuate family unity and prevent its fragmentation
or disintegration by dividing it by metes and bounds. The prohibition gets lifted when
male heirs have chosen to partition it. The words specified in Class-I of the Schedule and
Section 23, are used in a descriptive sense to economise the words denoting the legislative
animation. The expression "dwelling house" though not defined in the Act, the context
would indicate that it is referable to the dwelling house in which the intestate Hindu was
living at the time of his/her death; he/she intended that his/her children would continue to
normally occupy and enjoy it. He or she regarded it as his or her permanent abode. On his
or her death, the members of the family can be said to have continued to preserve the same
to perpetuate his/her memory. Obviously Section 23 is an exception to the general rule of
succession and has been engrafted for that purpose. Where there are only one male heir
and one or more female heirs are left surviving behind the Hindu intestate, the members of
the family would continue to remain in occupation and in enjoyment of it as dwelling
house. Due to marriage, the daughter would leave the parental house and get transplanted
into matrimonial home. The proviso to Section 23 visualises certain contingencies and
made provision for right of residence to Class-I female heirs. In the event the male
member(s) choose(s) to separate or cease(s) to reside or instead introduce a stranger into
family house, then the female heir gets the right to a share in the dwelling house as well.
The reverence to preserve the ancestral house in the memory of the father or mother is not
the exclusive preserve of the son(s) alone. Daughter(s) too would be anxious and more
reverential to preserve the dwelling house to perpetuate the parental memory.
13. Section 23 thus limits the right of the Class-I female heirs of a Hindu who died
intestate while both male and female heirs are entitled to a share in the property left by the
Hindu owner including the dwelling house. The marginal note itself indicates that Section
23 is a special provision: in other words, it is an exception to the general partition. So long
as the male heir(s) chose not to partition the dwelling house, the female class-I heir(s) has
been denied the right to claim its partition subject to a further exception, namely, the right
to residence therein by the female class-I heir(s) under specified circumstances. In other
words, the male heir(s) becomes entitled to perpetuate the memory of the deceased-Hindu
who died while remaining to live in the dwelling house during his or her life time.
Thereby the dwelling house remains indivisible. The male heir(s) thereby evinces animus
possedendi. But the moment the male heir(s) chooses to let out the dwelling house to a
stranger/third party, as a tenant or a licensee, he or they exhibit(s) animus dissident and the
dwelling house thereby becomes partible. Here the conduct of the male heir(s) is the cause
and the entitlement of the female Class-I heir(s) is the effect and the latter's claim for
partition gets ripened into right as she/they is/are to sue for partition of the dwelling house,
whether or not the proviso comes into play. Here the female heir(s) becomes entitled to
not only mere partition of the dwelling house but also her right to residence after partition.
14. It is, therefore, clear that though the right to succession devolves upon the female heir
under Section 8, being Class-I heir to the Hindu intestate, in respect of the dwelling house,
her right to seek partition has been interdicted and deferred only so long as the male
heir(s) decide to remain occupied therein as undivided or continue to have it as a dwelling
house. Though the words 'the male heirs choose to divide their respective shares', suggest
that at least two such male heirs must exist and decide not to partition the dwelling house
in which event the right of the female heir is postponed and kept in abeyance until the
male heir or heirs of the Hindu intestate decided to partition it, it does not necessarily lead
to the only inevitable conclusion that the operation of Section 23 must stand excluded in
the case of the Hindu intestate leaving behind him/her surviving only a son and a
daughter. Take the present policy of family planning to have only two children and
invariably preferring to have a son and daughter. More than one son may not exist. The
restriction is contingent and conditional and will cease to operate on the death of the sole
male heir or the last of such male heirs of the intestate or if he or they choose(s) to
partition and sell(s) his/their shares to a stranger or to let out to others. Take a case of a
Hindu male or female owning a flat in metropolis or major cities like Bombay etc. with
two room tenement left behind by a Hindu intestate. It may not be feasible to be
partitioned for convenient use and occupation by both the son and the daughter and to be
sold out. In that event the son and his family will be thrown on the street and the daughter
would coolly walk away with her share to her matrimonial home causing great injustice to
the son and rendering them homeless/shelterless. With passage of time, the female
members having lost the moorings in the parental family after marriage, may choose to
seek partition though not voluntarily but by inescapable compulsions and constrained to
seek partition and allotment of her share in the dwelling house of her intestate father or
mother. But the son with his share of money may be incapable to purchase a dwelling
house for his family and the decree for partition would make them shelterless. Take yet
another instance, where two-room tenement flat was left by deceased father or mother
apart from other properties. There is no love lost between brother and sister. The latter
demands her pound of flesh at an unacceptable price and the male heir would be unable to
buy off her share forcing the brother to sell the dwelling flat or its lease-hold right or
interest to see that the brother and his family are thrown into the streets to satisfy her ego.
If the right to partition is acceded to, the son will be left high and dry causing greatest
humiliation and injustice.
15. Take an instance of a mansion. The entire mansion may not be in use as a dwelling
unit by the male heir, though the father kept it as a dwelling unit. To the extent necessary
for the use by the male member as a dwelling house it can be preserved and the rest could
be partitioned and the former may be allotted to the son while working out the equities in
the partition. Take another illustration where in addition to the dwelling house other
properties are available for partition which may be allotted to the share of the sister or
sisters, while the dwelling house at the option of the son may be allotted towards his share.
In these events, the need to postpone succession may not arise.
16. Educational, job or a vocational opportunities necessitate migration and settlement in

another State or abroad which are a common feature. Grace to give when he is in affluent
position and allows female heir to wholly occupy and enjoy parental home apart, in
working out equities, instead of fragmentation of it by metes and bounds, the house may
be allotted to the share of the female heir so that she would perpetuate the memory of the
parental abode. Take yet another instance where son due to being in service is transferred
to another place or places and consequently he has to leave his dwelling house and join at
the place or places of his posting. Instead of keeping the house locked, he may lease it out
or grant leave or licence to a tenant. The cessation of possession and enjoyment of the
dwelling house is not due to his own volition but due to compulsion to eke out livelihood
and this cause should not give rise to a cause of action to a sister to file the suit for
partition.
17. Suppose 'A' and 'B' are brother and sister. 'A' is a Judge of the High Court. He on
elevation to the Supreme Court shifted his residence to Delhi. Instead of keeping his house
vacant he lets out the house to a tenant. Does it mean that 'A' had ceased to have intention
to be in possession of the house entitling 'B' to file a suit for partition. 'A' has intention to
retain possession but due to exigency of office he holds, he temporarily ceases to have
occupation, but his intention to return to his house and occupy the same on superannuation
still subsists and on return he would be entitled to residence.
18. Suppose 'A' is the father, 'B' is the son and 'C' is the daughter. They reside at 'H' place.
'A' is the Judge of the High Court, 'B' practices in the Supreme Court and 'C' practices at
'H'. 'B' on account of his practice ceases to have intention to reside at 'H' place and on
demise of 'A', 'C may be given the house for her residence to perpetuate the memory of the
parental abode or else it is liable to partition at an action of 'C'. Take another instance
where 'A' is a Clerk in a Bank. As per the policy of the management, on promotion to
officer cadre, he shall be compulsorily transferred at least for three years out side the
State. Suppose if he joins in the other State and if Section 23 is applied the moment he
ceases to occupy the house, it becomes liable to partition at a suit by his sister though he
returns on completing three years to his home State. To avoid such a hardship, either he
has to forego his future promotions in career and remain as a Clerk or face the peril of
losing his right in his father's abode.
19. Take another illustration, where the sole male heir with a view to prevent a female heir
of her right to residence in the dwelling house lets it out and occupies another tenanted
premises for himself and for the members of his family. Female heir cannot be expected to
fight a litigation against the tenant; instead she/they are entitled to file a suit for general
partition impleading tenant if not already made party for partition of the dwelling house let
out at the general partition and seek for allotment of her share therein for her residence
and the tenant in that event would be entitled to residence only to that part of the premises
allotted towards the share of his landlord, though the tenancy was for the entire building.
The conduct of letting by the male heir leads to the fragmentation of the dwelling house
and he cannot have a cause to complain of the female heir's claim for partition nor he has a
right to resist her demand for partition to workout her share in the dwelling house.
20. The above consideration would indicate that the legislature intended that during the
life-time of the surviving male heir(s) of the deceased Hindu intestate, he/they should live
in the parental dwelling house as partition thereof at the behest of the female heir would
render the male heir homeless/shelterless. Obviously, to prevent such hardship and unjust
situation, special provision was made in Section 23 of impartibility of the dwelling house.
Section 44 of the Transfer of Property Act and also Section 4(1) of the Partition Act
appear to prevent such fragmentation of the ancestral dwelling house. Singular includes
plural under S 13(2) of the General Clauses Act and may be applied to Section 23 as it is
not inconsistent with the context or subject. Even without resorting to it or having its aid
for interpretation, by applying common sense, equity, justice and good conscience,
injustice would be mitigated. After all, as said earlier, the purpose of law is to prevent
brooding sense of injustice. It is not the words of the law but the spirit and internal sense
of it that makes the law meaningful. The letter of the law is the body but the sense and
reason of the law is the soul. Therefore, pragmatic approach would further the ends of
justice and relieve the male or female heir from hardship and prevent unfair advantage to
each other. It would, therefore, be just and proper for the Court to adopt common sense
approach keeping at the back of its mind, justice, equity and good conscience and consider
the facts and circumstances of the case on hand. The right of residence to the male
member in the dwelling house of the Hindu intestate should be respected and the dwelling
house may be kept impartible during the life time of the sole male heir of the Hindu
intestate or until he chooses to divide and gives where to his sister or sisters or alienate his
share to a stranger or lets it out to others, etc. Until then, the right of the female heir or
heirs under Section 8. is deferred and kept in abeyance. So, instead of adopting
grammatical approach to construe Section 23, we are of the considered view that the
approach of the Calcutta High Court and its companion Courts is consistent with justice,
equity and good conscience and we approve of it. We accordingly hold that Section 23
applies and prohibits partition of dwelling house of the deceased Hindu male or female
intestate, he left surviving sole male heir and female heir/heirs and the right to claim
partition by the female heir is kept in abeyance and deferred during the life time of the
male heir or till he partitions or ceases to occupy and enjoy it or lets it out or till at a
partition action, equities are worked out.
21. Admittedly the suit was filed in 1980 when the High Court had not ruled on Section
23. The Schedule 'A' dwelling house was leased out to the 7th defendant. The appellant
pleaded in the written statement that he had spent around Rs. 1,24,000 and odd on the
marriage of the plaintiff-respondent. The property was, thereby not partible. The Munsif
found that Schedule 'A' property is the ancestral dwelling house and that the Schedule 'B'
site is the self-acquired property of the father which was affirmed by the appellate Court.
It would thus be clear that the appellant had not pleaded that the letting of the Schedule 'A'
dwelling house was on any extenuating circumstances and it was not a voluntary one. In
other words, it is clear that the appellant had inducted strangers into the dwelling house
and had lost his animus possedendi. Accordingly Section 23 became inapplicable to the
facts of this case. In that view, though for different reasons, the appeal needs no
interference which is accordingly dismissed. No costs.
Punchhi, J.
22. The special and multi angular provision, Section 23 of the Hindu Succession Act,
1956, emits two legal questions of importance for determination, in this appeal by special
leave, against the order of the Karnataka High Court dated 21-2-1992 in R.S.A. No. 1045
of 1991, affirming in limine the appellate order of the Civil judge, Ramanagaram dated 22
October 1990 in R.A. No. 31 of 1985, namely :
(i) What is a 'dwelling-house' on which the provision confers the cloak of impartibility?
and
(ii) Where a Hindu intestate leaves surviving him or her a single male heir and one or
more female heir or heirs, specified in Class I of the Schedule, is the provision attracted?
23. It would be worthwhile to reproduce hereafter the provision engaging attention as also
the relevant part of the Schedule :
23 SPECIAL PROVISIONS RESPECTING DWELLIN-GHOUSES - Where a Hindu

intestate has left surviving him or her both male and female heirs specified in Class I of
the Schedule and his or her property includes a dwelling-house wholly occupied by
members of his or her family, then, notwithstanding anything contained in this Act, the
right of any such female heir to claim partition of the dwelling-house shall not arise until
the male heirs chose to divide their respective shares therein; but the female heir shall be
entitled to a right of residence therein :
Provided that where such female heir is a daughter, she shall be entitled to a right of
residence in the dwelling house only if she is unmarried or has been deserted by or has
separated from the husband or is a widow.
THE SCHEDULE
HEIRS IN CLASS I
Son; daughter; widow; mother; son of a predeceased son; daughter of a predeceased son;
son of a predeceased daughter; daughter of a predeceased daughter; widow of a
predeceased son; son of a predeceased son of a predeceased son; daughter of a
predeceased son of a predeceased son; widow of a predeceased son of a predeceased son
some facts may now be noted.
24. The appellant, Narashimaha Murthy and his father Narasoji Rao owned a joint family
house, Schedule a property. Besides that Narasoji Rao owned some self acquired property,
Schedule B property. He died somewhere in the year 1968 leaving behind his son, the
appellant, Nagubai his widow, and five daughters. Twelve years after the death of
Narasoji Rao, one of his daughters, Smt. Susheelabai, Plaintiff-respondent herein filed a
suit for partition for obtaining one-seventh share in the properties of Narasoji Rao
impleading her brother, the appellant, her mother and four sisters as defendants. The
seventh defendant impleaded was the tenant of Schedule A property occupying it on a
monthly rent of Rs. 75. The mother Nagubai died during the pendency of the suit, which
made the plaintiff increase her claim to one-sixth share in the properties. The suit was
resisted by the appellant on grounds inter-alia that the plaintiff respondent could not seek
partition of Schedule A property, it being a joint dwellinghouse, as understood under
Section 23 of the Hindu succession Act, 1956, which provision was otherwise not
attracted, when there was only one male heir amongst the heirs surviving. It was otherwise
not in dispute that the house in question stood rented out to the seventh defendant but for
the rate of rent. The Trial Court rejecting the defence of the appellant, determined the
share of the plaintiff-respondent in Schedule A property as 1/12 (the intestate having half
share in the house and the other half being that of the son) and in Schedule B property as
1/6th. In accordance therewith the plaintiff-respondent was granted a preliminary decree
for partition on October 31, 1985. A separate enquiry was kept by the Trial Court for
determining the mesne profits from the date of the suit till the date of actual handing over
of possession. The first as well as the second appeal of the appellant to challenge the
judgment and decree of the Trial Court having been dismissed, has given him cause to
bring the dispute to this Court for resolution.
25. The admitted fact-situation now is that the house in question is in the actual physical
possession of the tenant and none of the heirs of Narasoji Rao, male or female, are in
possession thereof. It has now to be determined whether the suit of the plaintiff-
respondent could successfully be resisted by the appellant in the light of the afore-posed
questions, on the anvil of Section 23 of the Hindu Succession Act.
26. The expression "dwelling-house" has not been explained elsewhere then in the Section
23 itself. There is no specific definition of the expression in the Act as such. Because of
that, various commentators of the subject have foreseen that the courts were likely to face
a problem in defining it. According to Webster Comprehensive Dictionary, the expression
"dwellinghouse" means a house built for habitation, a domicile. In law it may embrace the
dwelling itself and such buildings as are used in connection with it. According to Black's
Law Dictionary (sixth edition), under statute prohibiting breaking and entering a
"dwelling-house", the test for determining if a building is such a house is whether it is
used regularly as a place to sleep. In Stroud's judicial Dictionary (fifth edition), the
expression” dwelling-house" has been described as a house with the super-added
requirement that it is dwelt in or the dwellers in which are absent only temporarily, having
animus revertendi and the legal ability to return Ford v. Barnes, 55 L.J.Q.B. 34. It is
described that the word "inhabitant" would seem to bring about more fully the meaning of
the word "dwelling-house". In Words and Phrases (Third Edition) a quotation is available
from Lewin v. End, (1906) AC 299 attributed to Lord Atkinson in whole words a
"dwelling-house" as understood by him was "a house in which people live or which is
physically capable of being used for human habitation". Another quotation from R. v.
Allison, (1843) 2 LTOS 288 is available of Maule, J. saying that a house, as soon as built
and fitted for residence, does not become of dwelling-house until some person dwells in it.
In I.P. Mukherjee's The Law Lexicon (Volume I) 1989, it is stated at page 565 that a
dwelling-house, as the words imply, projects the meaning that the house or a portion
thereof is an abode of his, available to him at all times without any let or hindrance by
others. Further thereat is stated that a dwelling place is one where a person inhabits and in
law should be his domus mansionalis. In Aiyar's Judicial Dictionary (11th Edition), an old
decision of the Allahabad High Court in Fatima Begum v. Sakina Begum, 1 All 51 has
been mentioned in which it has been held that the words "dwelling" or "residence" are
synonymous with domicile or home and mean that place where a person has his fixed
permanent home to which whenever he is absent, he has the intention of returning. An
extraction from Commissioner of Income Tax v. K.S. Ratanaswamy,
MANU/SC/0298/1979 : [1980]122ITR217(SC) is also quotable saying that primarily the
expression "dwelling place" means 'residence", "abode" or "home" where an individual is
supposed usually to live and sleep and in the context of a taxing provision which lays
down a technical test of territorial connection amounting to residence, the concept of an
"abode" or "home" would be implicit in it. In other words, a dwelling place must be a
house or portion thereof which could be regarded as an abode or home of the assessee in
taxable territories.
27. From the aforequoted statements it is manifest that in the legal world the word
"dwelling-house" is neither a term of art nor just a word synonymous with a residential
house, be it ancestral, joint family owned or self acquired, as understood in the law
applicable to Hindus. In the context of Section 23 therefore with the legislature has closely
employed the word "dwelling-house", it has done so with a purpose, which is to say that
on the death of the intestate, a limited status quo should prevail as existing prior to his or
her death. His or her abode, shared by him or her, with members of his or her family,
identifiable from Class I Heirs of the Schedule, should continue to be in enjoyment
thereof, not partible at the instance of the female heirs till the male heirs choose to effect
partition thereof.
28. There are twelve Class I heirs in the Schedule. They may be arranged in the following
manner :
Males Females Other Than Females Who Are

Daughters Daughters
i son i mother i daughter
ii son of ii widow ii daughter of pre-

deceased son
iii son of predeceased iii widow of predeceased iii daughter of pre-

son of predeceased son son deceased son of
predeceased son
iv son of predeceased iv widow of predeceased iv daughter of pre-

daughter son of predeceased son deceased daughter
29. The order of succession of a male intestate given in Section 9, is that the heirs in
Class-I take simultaneously to the exclusion of all other heirs, and the distribution of the
property is made in accordance with the provisions of Section 10. Rules of succession of a
female intestate are available in Sections 15 and 16 of the Act and they sometimes vary or
overlap upon the rules of succession applicable to the male intestate. But, seemingly, for
the purpose of the special provision Section 23, male and female heirs specified/identified
in Class I of the Schedule, alone have been conferred certain rights irrespective of the
operation of differing rules of succession applicable to Hindu male and female intestates.
This distinguished feature has to be borne in mind because the rights, whatever they be,
are meant only for Class I Heirs of the Schedule. In other words, members of the family of
the intestate unless they happen to be heirs specified in Class I of the Schedule have
neither been conferred any right to defer partition nor any claim to residence in the
dwelling-house. To illustrate the point, take the case of a mother-in-law living with a male
Hindu or for that matter his brother or sister. On his death since his mother-in-law, brother
or sister are not Class-I heirs, they have neither the right to have the partition among Class
I Heirs deferred, nor the right to reside therein, though they may be members of the
intestate's family as widely understood in its concept.
30. Attention may now be invited to the last sentence in the provision and the proviso, for
there lies the clue to get to the heart of the matter. On first impression the provision may
appear conflicting with the proviso but on closer examination the conflict disappears. A
female heir's right to claim partition of the dwelling-house does not arise until the male
heirs chose to divide their respective shares therein, but till that happens the female heir is
entitled to the right to reside therein. The female heir already residing in the dwelling-
house has a right to its continuance but in case she is not residing, she has a right to
enforce her entitlement of residence in a court of law. The proviso makes it amply clear
that where such female heir is a daughter, she shall be entitled to a right of residence in the
dwellinghouse only if she is unmarried or has been deserted by or has separated from her
husband or is a widow. On first impression, it appears that when the female heir is the
daughter, she is entitled to a right of residence in the dwelling-house so long as she suffers
from any one of the four disabilities i.e. (1) being unmarried; (2) being a deserted wife; (3)
being a separated wife; (4) being a widow. It may appear that female heirs other than the
daughter are entitled without any qualification to a right of residence, but the daughter
only if she suffers from any of the aforementioned disabilities. If this be the interpretation,
as some of the commentators on the subject have through it be, it would lead to an highly
unjust result for a married grand-daughter as a Class-I heir may get the right of residence
in the dwelling-house, and a married daughter may not. This incongruous result could
never have been postulated by the legislature. Significantly, the proviso covered the cases
of all daughters, which means all kinds of daughters, by employment of the words "where
such female heir is a daughter" and not "where such female heir is the daughter". The
proviso thus is meant to cover all daughters, the description of which has been given in the
above table by arrangement. The word "daughter" in the proviso is meant to include
daughter of a predeceased son, daughter of a predeceased son of a predeceased son and
daughter of a predeceased daughter. The right of residence of the female heirs specified in
Class-I of the Schedule, in order to be real and enforceable, pre-supposes that their
entitlement can not be obstructed by any act of the male heirs or rendered illusory such as
in creating third party rights therein in favour of others or in tenanting it, creating statutory
rights against dispossession or eviction. What is meant to be covered in Section 23 is a
dwelling house or houses, (for the singular would include the plural, as the caption and the
section is suggestive to that effect) fully occupied by the members of the intestate's family
and not a house or houses let out to tenants, for then it or those would not be dwelling-
house/houses but merely in description as residential houses. The section protects only a
dwelling-house, which means a house wholly inhabited by one or more members of the
family of the intestate, where some of all of the family members, even if absent for some
temporary reason, have the animus revertendi. In our considered view, a tenanted house
therefore is not a dwelling-house, in the sense in which the word is used in Section 23. It
may be a dwelling-house in the structural sense but it cannot be said to be a dwelling-
house in habitation by the members of the intestate's family. In that twin sense, when the
female heirs are entitled to a right of residence therein, which right is enforceable against
the male heirs, that right militates against the created or creating of tenancy by the male
heir or heirs and deprive them of their right to residence therein as also their right to
partition; an incidence normal to the opening of succession. Thus it appears to us that if
the male heirs derive the right under the provision to resist partition of the dwelling-house
unless they chose to divide their respective shares therein, then correspondingly it is
incumbent on the male heirs to keep the property well arranged, inhabited or occupied by
themselves keeping the property available for the female heirs to enforce the right of
residence therein. But if the latter right is frustrated on creation of third party rights or a
contractual or statutory tenancy, there remains no right with the males to resist partition.
31. Every right has a corresponding duty. This principle vigorously applies in this multi
angular provision. A house tenanted brings in strangers and it ceases to be a dwelling-
house inhabited by members of the family. The protection of Section 23 is thus not
available to the males. It is in this light that question No. 1 need be answered to say that a
dwelling-house is that house which is in actual, physical, inhabited possession of one or
the other members or the family in stricto sensu, and if some are absent due to exigencies
of service or vocations, the dwelling- house remains available for them to re-enter without
any obstruction or hindrance and on that premise enabling the female heir to assert a right
of entry and residence therein. A tenanted house does not fit into this description. Disabled
daughters need instant succor, not litigation. They need doors of the dwelling-house
always wide open, not stony-eyed responses of strangers. The provision silences them in
seeking partition, but not their ownership extinct. If marriage has the inescapable
consequence of displacement of the daughter from the parental roof, her interests forever
cannot be sacrificed on the alter of matrimony. Her distress revertendi is of equal
importance standing alongside the qualified defence of impartibility by the male heir as
afore-explained. The first question is answered accordingly.
32. The second question does not present much difficulty. On literal interpretation the
provision refers to male heirs in the plural and unless they chose to divide their respective
shares in the dwelling-houses, female heirs have no right to claim partition. In that sense
there cannot be a division even when there is a single male. It would always be necessary
to have more than one male heir. One way to look at it is that if there is one male heir, the
section is inapplicable, which means that a single male heir cannot resist female heir's
claim to partition. This would obviously bring unjust results, an intendment least
conceived of as the underlying idea of maintenance of status quo would go to the winds.
This does not seem to have been desired while enacting the special provision. It looks
nebulous that if their are two males, partition at the instance of female heir could be
resisted, but if there is one male, it would not. The emphasis on the section is to preserve a
dwelling-house as long as it is wholly occupied by some or all members of the intestate's
family which includes male or males. Understood in this manner, the language in plural
with reference to male heirs would have to be read in singular with the aid of the
provisions of the General clauses Act. It would thus read to mean that when there is a
single male heir, unless he chooses to take out his share from the dwelling-house, the
female heirs cannot claim partition against him. It cannot be forgotten that in the Hindu
male oriented society, where begetting of a son was a religious obligation, for the
fulfillment of which Hindus have even been resorting to adoptions, it could not be
visualized that it was intended that the single male heir should be worse off unless he had
a supportive second male as Class I heir. The provision would have to be interpreted in
such manner that it carries forward the spirit behind it. The second question would thus
have to be answered in favour of the proposition holding that where a Hindu intestate
leaves surviving him a single male heir and one or more female heirs specified in Class I
of the Schedule, the provisions of Section 23 keep attracted to maintain the dwelling-
house impart able as in the case of more than one male heir, subject to the right of re-entry
and residence of the female heirs so entitled, till such time the single male heir chooses to
separate his share; this right of his being personal to him, neither transferable nor
heritable.
33. Now applying the ratio above evolved on the facts of this case, it is evident that when
the house in question is tenanted, it is not a dwelling house in the sense the word is used in
Section 23 of the Hindu Succession Act and therefore it has no protection of its being
impart able. The suit of the plaintiff-respondent could not have been resisted by the
defendant-appellant on the basis that it was a family house. Equally the suit could not have
been resisted by the defendant-appellant on the ground that being the sole male heir of the
intestate, Section 23 was inapplicable, because then the suit for partition would otherwise
have been maintainable. Had the finding been that the House in question was a dwelling-
house the suit could have been resisted by him even as a single male heir on the basis of
Section 23 of the Act.
34. As a result of the above discussion, the preliminary decree for partition in favour of
the plaintiff-respondent cannot be upset. The judgments and orders of the courts below
would have to be maintained. In partitioning the properties the trial court would bear in
mind, as it is bound to, the provisions of the Partition Act. The appeal, in these
circumstances, fails but without any order as to costs.
Mary Roy v. State of Kerala, (1986) 2 SCC 209
Summary: The Indian Succession Act, 1925 is applicable to the intestate succession
to the property of a Christian on account of Section 6 of the Part B States (laws Act
1951) and the Travancore Christian Succession Act, 1902 is no longer applicable.
Hon'ble Judges: P.N. Bhagwati, C.J. and R.S. Pathak, J.
JUDGMENT
P.N. Bhagwati, C.J.
1. These Writ Petitions raise an interesting question as to whether after the coming into
force of the Part B States (Laws) Act 1951, the Travancore Christian Succession Act 1092
continues to govern intestate succession to the property of a member of the Indian
Christian Community in the territories originally forming part of the erstwhile state of
Travancore or is such intestate succession governed by the Indian Succession Act 1925
and if it continues to be governed by the Tranvacore Christian Succession Act 1092,
whether Sections 24, 28 and 29 of that Act are unconstitutional and void as being violative
of Article 14 of the Constitution. This question is of great importance because it affects
the property rights of women belonging to the Indian Christian Community in the
territories of the former State of Travancore. It is not necessary for the purpose of deciding
this question to refer to the facts of any particular Writ Petition. It will be sufficient to
trace the history of the legislation in regard to intestate succession to the property of
members of the Indian Christian Community in the territories forming part of the erstwhile
State of Travancore.
2. Prior to July 1949 the State of Travancore was a princely state and the law in force in
the territories of that state in regard to intestate succession to the property of members of
the Indian Christian community was the Travancore Christian Succession Act 1092. This
Act was promulgated by His Highness the Maharaja of Travancore with a view to
consolidating and amending the rules of law applicable to intestate succession among
Indian Christians in Travancore. The statement of objects and reasons for enactment of
this Act provided that "the usages of the various sections of the Christian community do
not agree in all respects. Separate legislation for the various sections of Christians is
neither desirable nor practicable and is likely to lead to much litigation and trouble. It. is
therefore thought necessary to enact a common law for all the various sections of Indian
Christians."Section 2 of the Act accordingly provided:
Except as provided in this Act, or by any other law for the time being in force, the rules
herein contained shall constitute the law of Travancore applicable to all cases of intestate
succession among the members of the Indian Christian community.
Sections 16 to 19 laid down the rules of law applicable to intestate succession among
Indian Christians. The contention of the petitioners was that these rules discriminated
against women by providing inter-alia that so far as succession to the immovable property
of the intestate is concerned, a widow or mother becoming entitled under Sections 16, 17,
21 and 22 shall have only life interest terminable at death or on remarriage and that a
daughter shall not be entitled to succeed to the property of the intestate in the same share
as the son but that she will be entitled to one-fourth the value of the share of the son or Rs.
5,000 whichever is less and even to this amount she will not be entitled on intestacy, if
Streedhanom was provided or promised to her by the intestate or in the life time of the
intestate, either by his wife or husband or after the death of such wife or husband, by his
or her heirs and on account of such discrimination these rules were unconstitutional and
void as being violative of Article 14 of the Constitution. On the view we are taking as
regards the consequential effect of the extension of the Indian Succession Act, 1925 to the
territories of the former State of Travancore by virtue of Part-B States (Laws) Act, 1951, it
is not necessary to examine this challenge to the constitutional validity of the rules laid
down in the Travancore Christian Succession Act, 1092 and we do not therefore propose
to refer to them in detail, as that would be a futile exercise and would unnecessarily
burden the judgment. But it is relevant to point out that Section 30 of the Travancore
Christian Succession Act, 1092 specifically excluded the applicability of the rules laid
down in Section 24, 28 and 29 to certain classes of Roman Catholic Christians of the Latin
Rite and also to certain Protestant Christians living in certain specified Taluks, according
to the customary usage among whom, the male and female heirs of an intestate share
equally in the property of the intestate and proceeded to add ex major cautela that so far as
these Christians are concerned, nothing in Sections 24, 28 and 29 shall be deemed to affect
the said custom obtaining among them. This was the law which governed intestate
succession to the property of members of the Indian Christian community in the territories
of the former State of Travancore.
3. In or about July 1949 the former State of Travancore merged with the former State of
Cochin to form Part-B State of Travancore - Cochin. There were also other Part-B States
formed out of erstwhile princely States and they were Hyderabad, Jammu & Kashmir,
Madhya Bharat, Mysore, Pepsu, Rajasthan and Saurashtra. With a view to bringing about
uniformity of legislation in the whole of India including Part-B States, Parliament enacted
Part-B States (Laws) Act, 1951 providing for extension to Part-B States of certain
Parliamentary Statutes prevailing in rest of India. Two sections of this Act are material,
namely, Sections 3 and 6 and they provide inter-alia as follows :
3. Extension and amendment of certain Acts and Ordinances
The Acts and Ordinances specified in the Schedule shall be amended in the manner and to
the extent therein specified, and the territorial extent of each of the said Acts and
Ordinances shall, as from the appointed day and in so far as any of the said Acts or
Ordinances or any of the provisions contained therein relates to matters with respect to
which Parliament has power to make laws, be as stated in the extent clause thereof as so
amended.
XX XX XX
6. Repeals and savings
If immediately before the appointed day, there is in force in any Part B State any law
corresponding to any of the Acts or Ordinances now extended to that State, that law shall,
save as otherwise expressly provided in the Act, stand repealed:
4. The Schedule to this Act referred to several statutes and one of these statutes was the
Indian Succession Act, 1925. The expression "the States", wherever occurring in the
Indian Succession Act, 1925 was substituted by the word 'India" and a new definition was
introduced in Clause (cc) of Section 2 of that Act defining "India" to mean "the territory of
India excluding the State of Jammu & Kashmir". The effect of Section 3 read with the
Schedule was to extend the provisions of the Indian Succession Act, 1925 to all Part-B
States including the State of Travancore-Cochin with effect from 1st April, 1951 which
was the appointed date under the Part-B States (Laws) Act, 1951. The question is as to
what was the impact of the extension of the Indian Succession Act, 1925 to the territories
of the State of Travancore - Cochin on the continuance of the Travancore Christian
Succession Act, 1092 in the territories forming part of the erstwhile State of Travancore.
Did the introduction of the Indian Succession Act, 1925 have the effect of repealing the
Travancore Christian Succession Act, 1092 so that from and after 1st April, 1951, intestate
succession to the property of a member of the Indian Christian community in the
territories of the former State of Travancore was governed by the Indian Succession Act,
1925 or did the Travancore Christian Succession Act, 1092 continue to govern such
intestate succession despite the introduction of the Indian Succession Act, 1925? This
question has evoked divergence of judicial opinion, a single Judge of the Madras High
Court taking one view while a Division Bench of the Madras High Court as also the
former Travancore Cochin High Court taking other view. We shall proceed to consider
which view is correct.
5. The Indian Succession Act, 1925 was enacted by Parliament with a view to
consolidating the law applicable to intestate and testamentary succession. This Act being a
consolidating act replaced many enactments which were in force at that time dealing with
intestate and protestant succession including the Indian succession Act, 1865. Part V of
the Act relates to intestate succession and it consists of a fasciculus of sections beginning
with Section 29 and going upto Section 56. The rules relating to testate succession are to
be found in Part VI of the Act which comprised 23 Chapters commencing from Section 57
and ending with Section 191. We are concerned here only with intestate succession and
hence we shall confine our attention to Part V of the Act. Section 29 which is the first
section in Chapter I of Part V deals with the applicability of the rules contained in that
Part. This section is material and hence it would be desirable to set it out in extenso :
29. Application of Part
(1) This part shall not apply to any intestacy occurring before the first day of January,
1866, or to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina.
(2) Save as provided in Sub-section (1) or by any other law for the time being in force, the
provisions of this Part shall constitute the law of India in all cases of intestacy.
Chapter II of Part V lays down the rules governing intestate succession in case of persons
other than Parsis and that is made clear by Section 31 which declares that nothing in
Chapter II shall apply to Parsis. Chapter III enacts special rules for Parsi interstates and
lays down what shall be the principles relating to intestate succession among them. It will
thus be seen that so far as Indian Christians are concerned, Chapter II of Part V contains
rules relating to interstate succession and a fortiori on the extension of the Indian
Succession Act, 1925 to Part B State of Travancore Cochin, the rules relating to intestate
succession enacted in Chapter II of Part V would be applicable equally to Indian
Christians in the territories of the former State of Travancore. But the respondents sought
to resist the applicability of these rules on the ground that Section 29 Sub- section (2) of
the Indian Succession Act, 1925 saved the provisions of the Travancore Christian
Succession Act, 1092 and therefore despite the extension of the Indian Succession Act,
1925 to Part B State of Travancore Cochin, the Travancore Christian Succession Act,
1092 continued to apply to Indian Christians in the territories of the erstwhile State of
Travancore. This contention urged on behalf of the respondents is plainly unsustainable
and cannot be accepted.
6. The principal infirmity affecting this contention is that it overlooks the repealing
provision enacted In Section 6 of the Part B State (Laws) Act, 1951. This section provides
that if immediately before the appointed day, that is, 1st April, 1951, there was in force in
any Part B State any law corresponding to any of the Acts or Ordinances extended to that
State, that law shall, save as otherwise expressly provided in Part B State (Laws) Act,
1951 stand repealed. Now the Indian Succession Act, 1925 was extended to Part B State
of Travancore-Cochin by virtue of Section 3 of Part B State (Laws) Act, 1951 and if
therefore, there was in force in part B State of Travancore-Cochin any law corresponding
to the Indian Succession Act, 1925 immediately prior to 1st April, 1951, such law would
stand wholly repealed. The petitioners contended that the Travancore Christian Succession
Act, 1092 which was admittedly in force in Part B State of Travancore-Cochin
immediately prior to 1st April, 1951, was a law corresponding to Chapter II of Part V of
the Indian Succession Act, 1925 and this law, namely, the Travancore Christian
Succession Act, 1092 must consequently be held to have been repealed in its entirety on
the extension of the provisions of Chapter II of Part V to the Indian Succession Act, 1925
to the territories of the former State of Travancore and if that be so, the continuance of the
Travancore Christian Succession Act, 1092 could not possibly be regarded as saved by
Section 29 Sub-section (2) of the Indian Succession Act, 1925. The respondents made a
faint attempt to combat this argument by urging that the Travancore Christian Succession
Act, 1092 was not a law corresponding to the Indian Succession Act, 1925 since the latter
Act had a much wider coverage in that it dealt not only with rules relating to intestate
succession among Indian Christian but also laid down rules of intestate succession among
Parsis as also rules relating to testate succession, while the Travancore Christian
Succession Act, 1092 was confined only to laying down rules of intestate succession
among Indian Christians. This plea urged on behalf of the respondents is wholly
fallacious. It ignores the basic fact that when the Indian Succession Act, 1925 was
extended to Part-B State of Travancore-Cochin every Part of that Act was so extended
including Chapter II of Part V and the Travancore Christian Succession Act, 1092 was a
law corresponding to Chapter II of Part V, since both dealt with the same subject matter,
namely, intestate succession among Indian Christians and covered the same field. We may
point out that Mr. Justice Ismail of the Madras High Court sitting as a Single Judge of the
Madras High Court recognised the validity of this position in Solomon v. Muthiah; [1974]
1 Mad L J 53 and held that "the conclusion is irresistible that the Travancore Christian
Succession Regulation II of 1902 is a law corresponding to the provisions contained in
Part V of the Indian Succession Act, 1925 so far as christians are concerned". The learned
Judge following upon this view held that the Travan core Christian Succession Act, 1092
was wholly repealed by virtue of Section 6 of Part B States (Laws) Act, 1951 and it could
not be held to have been saved by Section 29 Sub-section (2) of the Indian Succession
Act, 1925. This conclusion reached by the learned Single Judge was overruled by the
Division Bench of the Madras High Court in D. Chelliah v. G. lalita Bai A.I.R. 1978
(Mad.) 66, but even this decision of the Division Bench while disagreeing with the
conclusion reached by the learned Single Judge accepted the position that the Travancore
Christian Succession Act, 1092 was a law corresponding to Part V of the Indian
Succession Act, 1925. And if that be so, it is difficult to resist the conclusion that by
Section 6 of Part B States (Laws) Act, 1951 the Travancore Christian Succession Act,
1092 stood repealed in its entirety. When Section 6 of Part B States (Laws) Act, 1951
provided in clear and unequivocal terms that the Travancore Christian Succession Act,
1092 which was a law force in Part B States of Travancore-Cochin corresponding to
Chapter II of Part V of the Indian Succession Act, 1925 shall stand repealed, it would be
nothing short of subversion of the legislative intent to hold that the Travancore Christian
Succession Act, 1092 did not stand repealed but was saved by Section 29 Sub-section (2)
of the Indian Succession Act, 1925. Of course, if there were any provision in Part B States
(Laws) Act 1951 expressly providing that the Travancore Christian Succession Act, 1092
shall not stand repealed despite the extension of Chapter II of Part V of the Indian
Succession Act, 1925 to the territories of the former State of Travancore, then
undoubtedly the Travancore Christian Succession Act, 1092 would not have stood
repealed and would have been saved. But admittedly there is nothing in Part B States
(Laws) Act, 1951 expressly saving the Travancore Christian Succession Act, 1092. The
only argument urged on behalf of the respondents was that Section 29 Sub-section (2) of
the Indian Succession Act, 1925 had the effect of saving the Travancore Christian
Succession Act, 1092 and the latter Act therefore continued to govern Indian Christians in
the territories of the former State of Travancore. Now this contention of the respondent
might perhaps have required some consideration if the Travancore Christian Succession
Act, 1092 had not been expressly repealed and an argument had been raised that by reason
of the extension of the Indian Succession Act, 1925, there was implied repeal of the
Travancore Christian Succession Act, 1092. Then perhaps an argument could have been
advanced that though both Chapter II of Part V of the Indian Succession Act, 1925 and the
Travancore Christian Succession Act, 1092 covered the same field and dealt with the same
subject matter, namely, intestate succession among Indian Christians, there was no
implied repeal of the Travancore Christian Succession Act, 1092 by the extension of
Chapter II of Part V of the Indian Succession Act 1925 and the continued operation of the
Travancore Christian Succession Act 1092 was saved by Section 29 Sub-section (2) of the
Indian Succession Act, 1925. We very much doubt whether such an argument would have
been tenable but in any event in the present case there is no scope for such an argument,
since the Travancore Christian Succession Act, 1092 stood expressly repealed by virtue of
Section 6 of Part B States (Laws) Act, 1951.
7. It was then contended on behalf of the respondents, though faintly, that by reason of
Section 29 Sub-section (2), the Indian Succession Act, 1925 must be deemed to have
adopted by reference all laws for the time being in force relating to intestate succession
including the Travancore Christian Succession Act, 1092 so far as Indian Christian in
Travancore are concerned. This contention was sought to be supported by reference to the
decision of the Travancore-Cochin High Court in Kurian Auggsty v. Devassy Aley A.I.R.
1957 TC 1. We do not think this contention is at all sustainable. The legislative device of
incorporation by reference is a well-known device where the legislature instead of
repeating the provisions of a particular statute in another statue incorporates such
provision in the latter statute by reference to the earlier statute. It is a legislative device
adopted for the sake of convenience in order to avoid verbatim reproduction of the
provisions of an earlier statute in a latter statute. But when the legislature intends to adopt
this legislative device the language used by it is entirely distinct and different from the one
employed in Section 29 Sub-section (2) of the Indian Succession Act, 1925. The opening
part of Section 29 Sub-section (2) is intended to be a qualificatory or excepting provision
and not a provision for incorporation by reference. We have no hesitation in rejecting this
contention urged on behalf of the respondents.
8. We are, therefore, of the view that on the coming into force of Part-B States (Laws)
Act, 1951 the Travancore Cochin Succession Act, 1092 stood repealed and Chapter II of
Part V of the Indian Succession Act, 1925 became applicable and intestate succession to
the property of members of the Indian Christian community in the territories of the
erstwhile State of Travancore was thereafter governed by Chapter II of Part V of the
Indian Succession Act, 1925. On this view, it becomes unnecessary to consider whether
Sections 24, 28 and 29 of the Travancore Christian Succession Act, 1092 are
unconstitutional and void. We, therefore, allow the writ petitions and declare that intestate
succession to the property of Indian Christians in the territories of the former State of
Travancore is governed by the provisions contained in Chapter II of Part V of the Indian
Succession Act, 1925. There will be no order as to costs.

5.3 Family Law - II

Uploaded by

Copyright:

Available Formats

5.3 Family Law - II

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

5.3 Family Law - II

Uploaded by

Copyright:

Available Formats

What are the objectives of the Family Law course?

What are the objectives of the Family Law course?

What teaching methodology will be used in the course?

What teaching methodology will be used in the course?

National Law University and Judicial Academy, Assam

Details of Course offered

Odd Semester – Academic Year 2018-19

Sl. Course Code Course

a. Code and Title of the Course: 5.3 FL FAMILY LAW II

b. Course Credit: 5 (total marks 100)

c. Medium of instruction: ENGLISH

d. Course Compiled by: MS. GITANJALI GHOSH

e. Course Instructor: MS. GITANJALI GHOSH

Case Law Reporters

5. Course Evaluation Method

6. Expected Outcomes of the Course

Ø Joint Family Law

• The Hindu Gains and Learning Act 1930

• Hindu Succession Act1956

• Hindu Succession (Amendment) Act 2005

• The Hindu Women’s Rights to Property Rights 1937

• Christian Law of Intestate Succession

• Parsi Law of Intestate Succession

• Disqualifications under different personal laws

• The Indian Succession Act 1925

• Religious and Charitable Endowments

• The Transfer of Property Act 1882

Sl. TITLE OF THE PAPER AUTHOR

THE HINDU JOINT FAMILY

combine together and occupy the different rooms

COPARCENARY UNDER HINDU LAW :

Therefore, the unique concept of coparcenary is the product of ancient Hindu

In Hindu law of succession the coparcenary is still not codified. There

inherited no property at all from his father, grandfather or great grandfather,

of Shivaganga,6 there is community of interest and unity of possession between

6 (1863) 9 MIA 539.

7 (1902) 25 Mad. 149.

8 AIR 1990 AP 263.

In ancient times, everywhere, property could be owned by the patriarch

Section 6 of the Hindu Succession (Amendment) Act, 2005 clearly states

This emphasises the unfair advantage attributable to the daughter’s

husband. If the Parliament is serious to improve financial position of Hindu

1 P.V. Kane, HISTORY OF DHARMASASTRA, vol. III, 2 nd ed. 1972, p. 416.

1 Narada, 1, 2, 4, 5, SBE, vol. 33, pp. 41-42

1 Narada, 1, 2, 4, 5, SBE vol. 33, pp. 43-44.

1 Brihaspati, XI, 47, SBE, vol. 33, p. 328.

1 Manu, VIII, 158, SBE, vol. 25, p. 282.

1 AIR 1959 SC 282 : (1959) SCR 1384.

1 (1923) ILR 46 All 95, 104.

1 (1983) 144 ITR 18 (AP).

1 AIR 1986 SC 1753 : (1986) 3 SCC 567.

14. Svayamjatah Kritkriyamaurasah, Arth, III, 7.

26. Shaw v. Gould (1868) LR 3, HL 55.

40. Supra n. 28.

69. Supra n. 31.

82. Supra n. 54.

86. Ibid, p. 1762.

91. Supra n. 85, p. 1765.

93. Ibid, p. 345.