Multiplicity of succession laws

Limitation on the inheritance of an ilegitimate child.

When it comes to the core rights. If you are born out of valid marriage then there is no limitation.

Two conflicting judgements of the supre court. In bharat mata the 2010 judgement the supreme
court said that if you give the right the illgitemate child you are depriving the other co parceners.

Mallika arjun case. – it was ten referred to a larger bench

03.08.2020

1. partition – majorly governed by mitakshara, notion of evolving the property, testamentary

succession, intestate succession. Even though the widow was given the right to inheret the right
was not absolute. They didnint make daughters as co-parceners. Now what all is the subject
matter of the property. Is there any distinction in the property. Under dayabhaga there is not
consept of separate property. Before jumping to the model act like the HAS we will understand
the classical meaning of the same. Within that what was the meaning of hindu, co parcenary,
why only the males were included only till 4 enerations. The concept of krta and why the concet
is so unique. What are the qualifications of becoming a karta.

Topic two – classical law, understanding the model law. (2 parts)

Topic three – inhereteance – gifts and law under the muslim law.

Testamentary succession

05.08.2020

When two hindus get marriesd under hma, hsa is applicable to them. This is discriminatory
how ?when both the parties are not hindus the the indian sucession act will be applicable.

Multiplicity of succession laws.

Parsi intestate succession act. The major resistance in the isa was from the parsi community.
They were transporting the roman and the English law. This act was later included in the ida
from section 50-60 in sch 2.
Naomi samirani v. union of india- challenges the parsi inheritance practice

Difference between ancestral and personal property

 Ap is inherited from the paternal ancestors and is limited upto 4 generations

 You are not the only owners, there are other co-owners holding the property with you
 Automatice right from birth
 Duties and liab exists
 Separate property, person is the sole owner
 Post 1956- section 30

Inheritance and succession in hindu law

Divided into two categories, classical law (smritis commentaries and digests, most
imp,mitakshara and dayabagha) and modern law (HSA, 1956)

Basic difference btw mitakshara an ddayabagha. In mitakshra inherretance depends on nerlness

in blood. But In the later the digest is based on the efficacy of religion.

In 1956 the difference between the two was eliminated.

In hindu law the most imp identity is HUF.

surjit lal chaddha v. income tax commissioner – definition of Joint Hindu family – all male
members linealy decended from a common male member along with their wives or widows and
unmarried daughters. (you cannot start a HUF in the absence of a male)

daughter – when married she will cease to be a member of the family, but if deserted, she will
automatically become the member of the family. Any offspring of the widow will continue to be
the member of his fathers family no matter what the status of the woman is.

A father’s illegitimate son will be a part of his family only. But his entitlements will be different
The precense of a common ancestor is neccasary but for the continuation of the HUF it is not
ecessary that he is alive. It will continue even after his death. Karta will be the senior most male
member.

New members – marriage, birth and adoption

11.08.2020

13.08.20

Difference between huf and jhf

Section 2(9)- indian income tax act, 1952

In, raveendra nath – the sc said that nowhere in the act the term is being defined. The legislature
was well aware about the nature of the huf that is why they have not defined it and per se there is
no difference between the two terms.

 HUF is only concerned with the taxes and the revenues but in JHF the assumption of
property is not requires. In an HUF presumption of property is necessary.
 Rights of unborn child
 Presumption of jointness. In a jhf presumption of jointness is always there unless the
contrary is proven by showing that the partition has taken place. But in an HUF there is
not presumption of jointnes unless it is shown that a joint property exists.
 Generation limitation – not sure

14/08

COPARCENARY

 Upto three male generations

 If we compare the two concepts of huf and jhf
 A was the senior most member of the family do till three generation and thenat person
will be coparceners
  Main focus was the religious connotation – but with due course of time we have
neglected the relious connotation to the concept. One classical aspect is being ignored
and we see it only from the lense of property and partition
 Only the male lineal decendsnce are co perceners they only have the right to maintainace

Preconditions of a coparcenary –

 It cannot exist without the existence of a jhf

17.08

Coparcenay –

It is a narrower concept than a hindu family. Consisting of only male members uptill fourth
generation. Post 2005 even daughters are coparceners

 Can women be a karta- different positions in family ad revenue laws

 Atleast two ale members and a relationship of father an sone btw them is necessary for
the foration o coparcenary in the mitakshara system.

20.08

21.08

Revision - Unity of possession and community of interest, fluctuating interest, creation of law,

Doctrine of survivorship -

Diffence in the rights of a minor and major co parceners

24.08

His share is devided amongst the existing coparceners

02/09

03.09

Dayabagha
 No concept of survivorship
 The generation rule
 Shares are not fluctuating in nature, even before partition the shares are fixed
 Unity of possession – even though the shares might be fixed but the physical demarcation
is not there, you can enter into any family agreement even before the partition.
 There is no difference btw personal or separate property
 Sapratibandh and apratibadh daya

09.04

Last case

The ancestral property in an unobstructed heritage in the hands of the daughter

Further the court said that in prakash v. phulawat the court did not dwell into the formation of
coparcenary

08.09

 Sapratibandh daya
 Apratibanndh daya – without obstruction heritage – e.g. coparcenary property an
ancestral house will be unobstructed heritage for F, S, S1 and S2.
 Spratibandh daya – with obstruction. The obstruction house will be sapratibadh for
S3. F is the obstruction.
 The same understanding was taken up by court in vineeta sharma v. rakesh sharma.
Justice Mishra – on bases of obstructed and unobstructed heritage and on how the
coparcenary is formed
 Categorization of property – to determine whether it is ancestral or self-acquired in
nature. If I have separate property it will be separate in my and for other too however
in vipu vasant v. the sc stated that when we see the nature of ancestral property we
have to keep in mind that with r to whom and I talking about the property.
 Section 8 of HAS – general rules of succession in the case of males – hires are
divided into 4 classes.
  Dipo v. wassan 1983 – s1 and s2 got property and then partitioned. S1 died and x gets
his property and now he is the sole coparcener

He didn’t leave behind any male descendant. S claimed that she is the legal heir of
this male hindu who is dying intestate hence is entitles to the prorty. Counterclaim
was the property in the hands of X is ancestral and hence Y is entitled to get this land.
By the principle of survivorship Y should get the property
The court said that we have to assess the nature of the property, since the partition has
already taken place and ther is no coparcenary between s1 and s2 of their kinds.
Therefore, with regard to y it is his separate property and the ancestral nature of this
property will only revive only if x has a male lineal descendent.

 Ancestor in a joint Hindu family would it include my maternal ancestor – no.

 This question came in front of PC in 1902 – two brothers got property from their
maternal grandfather and it was contended that it should be treated as ancestral
property hence creating the right of other coparceners also

Muhammad Husain khan – X- GP, Y son, W daughter in law

  GP had an estate of a village and wrote in his will that the entire property shall be given
to charity purposes, but before dying he wrote another will where he said that the
property will stay with the son and be a life interest and after its sons death it will be with
his son and if not son then the daughter in law. After GP dies the property is taken by his
son. But he owned some money which he could not pay the property was auctioned. The
W claimed that the property was not ancestral and the will mentioned that Y only had a
life interest. And she is entitled to the property.
 Y had some loan the property was disposed. W challenged this disposition on the ground
that Y did not have any right of disposition. Creditor says that whatever property Y had
was ancestral property and hence the will of X was illegal in nature and hence cannot be
executed thus the sale is valid. W is saying that the property which X inherited was from
his maternal grandfather and hence the property is separate in his hands
 Court says that there is no limitation when I talk about my paternal side. But the term is
not clear to enough to include the maternal side. They looked into mitakshara and saw
that the ephaiss is on two words – pitah and pitahmah and the later specifically refers to
maternal grandfather and by the virtue of the same understanding if you get something
from MG then the property is of a separate nature and MG is not included in ancestors in
the cases to inheritance and succession.
 Atar singh v. thakar singh, 1908 – rahul’s case

AIR 1953 SC 495 – CN Anurachalam v. CA murugnatham

 SC is assessing the nature of the property inherited by the father but from a will
 For e.g. A is inheriting his father’s property through a will. What is the nature of the
property in hands of A from the perspective of his legal heirs.
 Facts – A had a wife and had three sons
 S1 is filing a suit for partition and A along with his wife is not letting us enjoy the
property .
 There are a lot of articles to be partitioned. S1 claims that the property is ancestral in
nature.
 W2 says that I am an unecesary party in this suit and the jewelry belongs only to me
which was upheld by the court
 A claims that the properties which your are talking about were bequeathed upon me by
my father by a will and therefore this property is separate and not ancestral in nature.
Hence cannot be demanded for partitioned
 The court looks into the practices which we have and says that the law in not settled.
Why we are asking the nature of the property.
 The patna HC says that we will not access the property like their... The cal hc says that
whatever property you inherit form your father is ancestral in nature. The SC syays that
when we look into the mitakshara property at that time the porperties which are listed to
be partitioned is ens… it depends on the intention of the testator whether he wats the
property to be ansestral or separate in the hands of his hiers.
 AIR 1986 SC 1753 ; AIR 2013 SC 3525

10.09

 Revided anurachalam
  The HAS 1956 was enacted and its preamble says that ‘an act to amend or to codify the
law relating to intestate succession amongst hindus ’
 Section 4 of the act talks about the overriding effct of the act.
 What is the issue find out??
 Commsn of wealth tax v. chander sen – Chandra sen and rangi lal went through a partial
partion they only separated in their family business.
 After the partition – chandrasen filled for assessment and included the JHF house as the
ancestral property and however after the death of his father he showed this particular
property as his separate property. Chandra sen was forming coparcenary alone with his
three sons.
 The application of survivorship was done away after the 1956 act as they amended ad
codified it.
 Rohit singh v. surindar singh –

11/09

ROHIT SINGH V. SURINAR SINGH

 Read arshnoor singh v. harpal kaur and AIR 2008 SC 673

 The SC held that till the time you are holding the property as a sole surviving coparcener
that property will be like separate property in in your hand but the condition is that you
have no lineal descendent. The moment a lineal descendant comes into picture the
property will revive its nature of coparcenary property.
 Air 2018 del 104 – the property stood in the nae of the elder brother and the younger
brother demanded partition. The courts said that theer is no clear intention that the
property is blended to the joint hindu family.
 When we talk about blending what are the essentials – bom HC –
o The JHF should be in existence
o When you blend your property the intention of

19.09
Revise – alieanation of property – legal necessity benefit of state, these cosepts originate form
the onld consetps of mitakshara

Can a karta give away a potion as a gift to the daughter of the family

Same view upheld by the indian judiciary that some property can be given as gift to a daughter.

If we look into the practice a 2004 judgement – the father alienated 2 properties and gave away
that property in the favor of the daughter as a gift later he revokes and claimes tat as a karta hi is
not entitiled to give the proper R. Kupayee v. Rja Gonger. AIR 2004 SC 1284

Should the position change after 2005?

2009 patna hc – father executed 2 sale deeed in the name f his wifes and daughter, he said that
the daughter looked after me. And so pay my debt to her I have alienated my property to this
necessity and the hc held that the debt is anticident dent and the karta/father has the right to settle
his dbts if they are no illegal in nature. Sundar yadav v. asha kumari AIR 2009 Pat 131

Challenge to the alieanation

 If the alienationis about to happened the co parcener can seek for partition
 Can request for an injunction
 The co parceners can chaleneg the allegation if already done

Ground of challenge – not ofr legal necessity or for religious duties. The karta doent need to
prove that the transaction is valid but the burdern is on the alieanee to prove that the transaction
he took part into is under these three instaces. The principle rest on the doctrine of caveat
emptor.

There is a shift in the nature of the evidence which we are producing.

1. When he can verify that there is legal necessity and when you are allowing one stanger he
might not have acces to such information
2. When you allow this Stanger to infiltrate the JHF you are opening a close knietted gropu
fr him to look into the private affairs.
Judiciary guidelines – the burden of proof is on the aliene is only to prove that the transaction is
bonafide