1. What is partition ? Who are the person entitled to a share on partition ?

Partition means a numerical division of property and bringing a Hindu

Joint family to an end. The joint family ceases to be joint and transforms
into a nuclear family after partition. In a coparcenary, the coparceners
hold the property as one common unit, partition means the fixing of the
shares of each coparcener.
According to the Mitakshara Law, it is the adjustment of the diverse
interests regarding the whole, by distributing them into particular portions
of the aggregate. Thus, partition implies the crystallization of the
fluctuating interest of a coparcenary into a specific share in the Hindu
Joint Family.

 De jure Partition
Dejure partition brings the severance of status or interest. This happens
when the community of interest is broken, either at the instance of one of
the coparcener or by the agreement of all the coparceners. In such a
partition, the shares become clearly demarcated and are no longer
fluctuating.

 De facto Partition
This is a partition by metes and bonds. This happens when the unity of
possession is broken. It is only after the de facto partition, the respective
shares of the coparceners become their exclusive shares.

In the Mitakshara school, partition simply means the severance of status

or interest. It does not mean that a partition is affected only after the
division of property in specific shares. A definite and unequivocal intention
of a coparcener to separate himself from the family is all necessary to
affect partition. Thus, a partition is deemed to be complete by the
severance of the status that is de jure partition.

2. Discuss the doctrine of Pious obligation.

Meaning :
Pious' means 'godly, religious, devout, reverential. 'Pious obligation'
means duty of a Hindu due to deep devotion to religion. Hindu law states
that 'He who having received a sum lent or the like does not repay it to
the owner will be born hereafter in his creditors house a slave, a servant
or a woman or a quadruped '. As per Hindu scriptures, it is the holy duty
of a son to pay off or discharge his father's debts. The religious obligation
is attached to the son as well as grandson and to the great grandson also,
on the ground that all the three are coparceners with others by their
birth.

 It is said that non-payment of debts is a sin and also a crime. Any
person, who died leaving the debts behind cannot go to heaven. The
'putra' i.e. the son, son's son and son's son's son by repaying/clearing off
such debts, discharges his parted father/ancestor from the indebtedness
and enables/facilitates him to reach the heaven. This duty or obligation of
a son to repay the debts of the deceased father ( parted ancestor ) is
rested upon a special doctrine, known as "The Doctrine of Pious
Obligation" - However, this obligation extends to non-avyavaharika (or
vyavaharika) debts only. Avyavaharika debt is one, which is taken for
illegal or immoral purpose. Eg :- Gambling, Races etc.
    
Relevant Cases

               The Supreme Court in - Anthony Swamy V. M.R. Chinaswamy

koundan (AIR 1970 SC 223), the doctrine of Pious Obligation is not
merely a religious doctrine but has passed into the realm of law. The
doctrine is a necessary and logical corollary to the doctrine of the right of
the son by birth to a share of the ancestral property and both these
conceptions are correlated. The liability on the son to pay the debt of his
father is not a gratuitous Obligation thrust on him by Hindu law but is a
salutary counter balance to the principal that the son from the moment of
his birth acquires along with his father an interest in the joint family
property. The doctrine is in consonance with justice, equity and good
conscience.

              Again in Venkatesh Dhonddev Deshpande V. Son, Kusum

dattatraya Kulkarini (AIR 1978 SC 1791), the court observed that where
the father as karta contracted the debts for family purposes, the son's as
members of the family are bound to pay the debts to the extent of their
interests in the coparcenary property,
   
                      Under Old Law, the doctrine (Obligation to discharge the
debts) arises after the death (of the father). But, according to the modern
doctrine (new law) the Obligation arises even during the life time of the
father (Brij vs. Mangal prasad, 46, all. 951 (PC). Further, under the old
law, the son had an obligation to pay the debts with interest. The
grandson was liable for the principal amount only (i.e. without interest).
The great grandson was not liable, unless he had received the property
from the ancestor. But according to the modern doctrine/law all i.e. son,
son's son and son's son's son are liable to pay the debts with interest.
  
When the father being the karta/Manager of a Hindu joint family contracts
a loan for legal necessary, the loan is binding on all the members of the
joint family. If he incurs debts, for his personal purpose, he is personally
 liable. To clear off such debts, he may have to alienate his personal
property or his son's property. In son's property is alienated, his son
should not question him.

3. Discuss the rules relating to devolution of undivided interest in

coparcenary property.

Introduction
The Hindu Succession Act (‘the act’) enacted in 1956 is the governing piece
of legislation concerning the transfer and devolution of property amongst
Hindus in India.[1] It codified the existing laws of inheritance while also
introducing certain changes. It sought to redress some anomalies created by
traditional Hindu Law. However, it was a compromise between tradition and
modernity that could not lead to full equality.[2]

The desire to retain the Mitakshara  coparcenary along with principals of

intestate succession in the act led to complexities. [3] While a daughter would
get only a share from the presumed partitioned property of her father, the
sons continued to get a share in the coparcenary property as well as the
notionally partitioned property. [4] To redress these problems, the act was
amended in 2005. It gave women a right by birth in the property of their
father by including them in the coparcenary. [5] This was a huge blow to
patriarchy institutionalized by law and paved way for women to have true
economic and social equality. However, post the amendment, there have
been inconsistencies in the interpretation of § 6 concerning the devolution of
interest in the coparcenary property. This has hindered the achievement of
the objectives of the amendment act.

In the first part, we will deal with the nature of rights in coparcenary property
before the amendment act. In part two we seek to understand the implications
of the amendment act. In part three we probe the controversy regarding the
retrospectivity of the amendment act and judicial pronouncements regarding
the same. We shall examine the inconsistencies that have plagued the
interpretation of § 6 of the amended act. In part IV, we look at the possible
redressal of the issue.

I. Property Rights of women under the act before the amendment

The Concept of Hindu Coparcenary

Traditional Hindu Coparcenary consisted of four generations of male members in
a family, starting from the oldest surviving member. [6] The undivided
coparcenary property belonged to all the members of the coparcenary where
each coparcener held a share by birth, and thus it devolved by the rule of
survivorship.[7] Such an arrangement left the female relatives of the deceased
without any protection as the property rights were vested solely in men who
were a part of the coparcenary.[8] The exclusion of women was a result of the
notion that women lacked the potency to perform religious obligations, such as
providing offerings to ancestors and performing funeral rituals. [9] Thus,
traditional laws of succession were ridden with gender bias and hindered any
possibility of equality for women.

When the act was being framed, B. N Rau and B. R Ambedkar recognized these
problems and had, in fact, proposed to do away with the concept
of Mitakshara coparcenary altogether.[10] This proposition was met with fierce
opposition. The idea of making daughters a part of the coparcenary was also
pioneered but was not accepted. [11] Thus the act was a product of a middle
ground. The Mitakshara coparcenary was retained but more protection was
offered to women than what was offered under traditional Hindu law.

Protection offered to women under the 1956 act

In light of the principles of equality enshrined in the constitution, the act tried to
alleviate the position of women by giving them a share in father’s separate
property. Daughters were introduced as class I heirs and this enabled the
daughters to get a certain share out of their father’s property through the
concept of a notional partition.[12]

A Hindu male can hold two types of property. The first one is ancestral property
that devolves by the rule of survivorship. [13] The second one is separate property
that devolves according to the rules of intestate succession. [14] After partition,
the property is considered to be separate property of the man which devolves
upon his heirs by intestate succession. Thus, the concept of notional partition
was introduced in explanation I of § 6 of the 1956 Act. [15] It mandated a legal
presumption that a partition had taken place immediately before the death of
the coparcener who had, either a female relative specified in class I of the
schedule of the Act, or a male relative who claimed through such a female
relative.[16] This entailed that the property would devolve by intestate succession
and not by the rule of survivorship.  This legal fiction was created to protect the
interests of the daughter of the deceased. [17] As the notionally partitioned
property would be considered to be separate property, she would be entitled to
a share out of it.

This assured the daughter some interest in the father’s property. Before the act,
entire undivided property would devolve to surviving coparceners as per the
rule of survivorship, leaving the daughter remedy-less. [18] This was the first step,
though a cursory one, is ensuring that there is parity between male and female
successors. However, the result of this provision was that sons of the deceased
coparcener could claim both as heirs and later as surviving coparceners. [19] This
is because notional partition is only a tool to demarcate the share that the
deceased would have received and it does not disrupt the coparcenary property
as whole.[20] Hence, the rest of the undivided property continues as coparcenary
property. This enabled the male members to get a share larger than their
female counterparts.

II. Position Post Amendment

It was observed that granting daughters a share in the notionally partitioned
property of their fathers still did not place them on the same level as their male
counterparts. In light of this, there could be only two ways in which equality
could be truly achieved in this regard. Either the concept of coparcenary
property had to be abolished or daughters had to be made a part of the
coparcenary.[21] Kerala followed the first route while the  second model of
making daughters a part of the coparcenary was introduced by Andhra Pradesh
and was later followed by Maharashtra, Tamil Nadu et al. [22] These state
amendments were an effort to realize the constitutional mandate of equality. It
was also to eradicate the practice of dowry which was believed to have
stemmed from this exclusion of women from holding property. [23] However, some
of these amendments excluded married daughters from their ambit.

In 2000, the 174th Law Commission Report suggested a number of reforms with

regards to women’s right to property.[24] It also pointed out another bias in § 6 of
the Act wherein, when property devolves according to § 8, it considers male line
of descent up to two degrees, but the female line only up to one degree. [25] It
also proposed to delete § 23 of the act that excludes female heirs from claiming
a partition of the dwelling house.[26]

In 2005, the amendment was passed along the lines of various state
amendments and the Law Commission Report. This had the effect of overriding
the state amendments.[27] After the amendment the fundamental principles of
the Hindu coparcenary were challenged. Daughters were made a part of the
coparcenary and were granted the same rights over the coparcenary property
as their male counterparts.[28] Further, earlier daughters were barred from
becoming kartas because they were not a part of the coparcenary. [29] However,
by the application of the amended § 6 they can now act as kartas. The
Parliament also proceeded to obliviate the distinction between a married and an
unmarried daughter.[30] This was path-breaking blow to institutionalized
patriarchy as it made women economically independent. However, problems still
persist regarding concepts like reunification which are governed by uncodified
Hindu law.[31]
 4. With reference to the Hindu Succession Act, 1 956, discuss the rules of
succession to property of a Hindu female dying intestate.

The current position In law for self-acquired property Of Hindu

female dying Intestate 

The Succession Act and the amendment

The Hindu Succession Act 1956, also applies to Jains, Buddhists and Sikhs,
which have provided women of India with conditional inheritance rights of the
property. Dayabhaga and Mitakshara are the two schools under which patrilineal
Hindu Law is divided across India. According to Mitakshara school, there is a
clear distinction made between a man’s personal property and property
belonging to ancestors. He has full discretion and right over his personal
property to will away and automatically has his sons acting as coparceners
under the Succession Act. Daughters only had the rights to claim in the personal
property of their father’s and in the father’s share of the ancestral property.
Women were not given the status of coparceners. Women could only ask for a
right to sustenance from a joint Hindu family in India, and nothing more. 

There was an amendment in 2005 which tried correcting this but struggled with
confusions over it due to the conflicting judgements of the court. There was a
lack of clarity in the judgements provided. Bombay High Court ruled that
benefits of the new provisions do not extend to the daughters born after the law
was amended. Later in the other case, High Courts in Delhi, Karnataka and
Orissa passed a contradictory ruling that the amendment will be applied to the
daughters alive in 2005. The Supreme Court of India in 2015 also said that the
daughter would not get property rights if the father died before the amendment
came into force. So the very latest judgment passed clarifies that the law is
applicable to all the disputes regarding property filed before 2005 and pending
when the law was enacted. The children of the daughter will be the coparceners
if the daughter had died before 2005. 

Women born before 1956 gets Act’s benefits

The Supreme Court in a case came out with the recent judgement challenging
the women’s right to inherit property on two grounds. The Man named Amar
claimed that her aunt was born before 1956, so consequently, she was not
eligible for rights that had been provided by the Succession Act, nor was the
amendment of 2005 was applicable on her. The lower court and the high court
upheld the opinion that: However, the Supreme Court cited previous
judgements to rule that two women were eligible to inherit the property as per
the Act as well as the amendment of 2005 as it stood before the Act.

Inheritance of Agricultural Land

The inheritance of agricultural land is another issue which has inclined in the
favour of men. Succession of agricultural land is under the governance of state
laws and in many cases daughters are not provided with the inheritance rights
of the property under a reason that it will result in the fragmentation of the
holdings. Across India, only 13% of farmland is owned by women according to
the census data. This is because of the increasing migration of men to cities and
agricultural land is left to women. Not having ownership of the land means that
they can not have access to institutional credits or take advantage of
government schemes and offers of subsidised seeds, fertilisers etc.  

Through Section 4(2), the Succession Act 1956 kept agricultural land out of its
extent. In 2014, while the Section was repealed by 2005 amendment, the
Allahabad High Court ruled that the agricultural land lies under absolute
governance of the State Legislature and Parliament has no land power to enact
any law for the same. 

The Supreme Court in its latest judgement does not mention agricultural land.
It has also been found in the reports that despite existing laws, women are
often made to sign away their inheritance rights of property under family
pressure. The latest judgement hopefully will result in providing a boost to
women’s fight for equality.

On 2 February, the Supreme Court ruled that under the Hindu Succession Act,
daughters were legally entitled to hold the equal share of the property in her
ancestral property, irrespective of the year they were born in. It was a
judgement that attempted to mend decades of imbalance in Hindu inheritance
rights over the property. In this case, a man had contended that his aunt has
no legal entitlement to rights in his grandfather’s property. A bench of Justice
AK Sikri and Ashok Bhushan held that the Hindu Succession Act, 1956 holds
that a daughter would be a coparcener (holding an equal share in the undivided
property) in the family’s ancestral property since birth, having the same rights
and liabilities as of a son as amended in 2005 amendment.

5. Discuss the various provision of lndian Succession Act which deal with
rules relating to Parsi Succession.

SPECIAL RULES FOR PARSI INTESTATES

General Principles relating to intestate successionc

50. For the purpose of intestate succession among Parsis-

 (a) there is no distinction between those who were actually born in the lifetime of a person ceased and
those who at the date of his death were only conceived in the womb, but who have been subsequently
born alive;

 (b) a lineal descendant of an intestate who has died in the lifetime of the intestate without leaving a
widow or widower or any lineal descendant or a widow of any lineal descendant shall not be taken into
account in determining the manner in which the property of which the intestate has died intestate shall
be divided; and

 (c) where a widow of any relative of an intestate has married again in the lifetime of the intestate, she
shall not be entitled to receive any share of the property of which the intestate has died intestate, and
she shall be deemed not to be existing at the intestate's death.

Division of a male intestate's property among his widow, children and parents

51. (1) Subject to the provisions of sub-section (2), the property of which a male Parsi dies intestate shall
be divided-

(a) where he dies leaving a widow and children, among the widow and children, so that the share of
each son and of the widow shall be double the share of each daughter, or

 (b) where he dies leaving children but no widow, among the children, so that the share of each son shall
be double the share of each daughter.

(2) Where a male Parsi dies leaving one or both parents in addition to children or a widow and children,
the property of which he dies intestate shall be divided so that the father shall receive a share equal to
half the share of a son and the mother shall receive a share equal to half the share of a daughter.

Division of a female intestate's property among her widower and children

52. The property of which a female Parsi dies intestate shall be divided-

 (a) where she dies leaving a widower and children among the widower and children so that the
widower and each child receive equal shares, or

 (b) where she dies leaving children but no widower, among the children in equal shares.

Division of share of predeceased child of intestate leaving lineal descendants

53. In all cases where a Parsi dies leaving any lineal descendant, if any child of such intestate has died in
the lifetime of the intestate, the division of the share of the property of which the intestate has died
intestate which such child would have taken if living at the intestate's death shall be in accordance with
the following rules, namely:-

 (a) If such deceased child was a son, his widow and children shall take shares in accordance with the
provisions of this Chapter as if he had died immediately after the intestate's death:

Provided that where such deceased son has left a widow or a widow of a lineal descendant but no lineal
descendant, the residue of his share after such distribution has been made shall be divided in
accordance with the provisions of this chapter as property of which the intestate has died intestate, and
in making the division of such residue the said deceased son of the intestate shall not be taken into
account.

(b) If such deceased child was a daughter, her share shall be divided equally among her children.

(c) If any child of such deceased child has also died during the lifetime of the intestate, the share which
he or she would have taken if living at the intestate's death shall be divided in like manner in accordance
with clause (a) or clause (b) as the case may be.

(d) Where a remoter lineal descendant of the intestate has died during the lifetime of the intestate, the
provisions of clause (c) shall apply mutatis mutandis to the division of any share to which he or she
would have been entitled if living at the intestate's death by reason of the predeceased of all the
intestate's lineal descendants directly between him or her and the intestate.

Division of property where intestate leaves no lineal descendant but leaves a widow or widower or a
widow of any lineal descendant

54. Where a Parsi dies without leaving any lineal descendant but leaving a widow or widower or a
widow of a lineal descendant, the property of which the intestate dies intestate shall be divided in
accordance with the following rules, namely:-

 (a) If the intestate leaves a widow or widower but no widow of a lineal descendant, the widow or
widower shall take half the said property.

 (b) If the intestate leaves a widow or widower and also a widow of any lineal descendant, his widow or
her widower shall receive one-third of the said property, and the widow of any lineal descendant shall
receive another one-third, or if there is more than one such widow, the last mentioned one-third shall
be divided equally among them.

 (c) If the intestate leaves no widow or widower but one widow of a lineal descendant, she shall receive
one-third of the said property or, if the intestate leaves no widow or widower but more than one widow
of a lineal descendant, two-thirds of the said property shall be divided among such widows in equal
shares.

(d) The residue after the division specified in clause (a), (b) or (c) has been made shall be distributed
among the relatives of the intestate in the order specified the relatives of the intestate in the order
specified in Part I of Schedule II. The next-of-kin standing first in Part I of that Schedule shall be
preferred to those standing second, the second to the third, and so on in succession, provided that the
property shall be so distributed that each male shall take double the share of each female standing in
the same degree of propinquity.

(e) If there are no relatives entitled to the residue under clause (d), the whole of the residue shall be
distributed in proportion to the shares specified among the persons entitled to receive shares under this
section.

Division of property where intestate leaves neither lineal descendants nor a widow or widower nor a
widow of any lineal descendant

55. When a Parsi dies leaving neither lineal descendants nor a widow or widower nor a widow of any
lineal descendant, his or her next-of-kin, in the order set forth in Part II of Schedule II, shall be entitled to
succeed to the whole of the property of which he or she dies intestate. The next-of-kin standing first in
Part II of that Schedule shall be preferred to those standing second, the second to the third, and so on in
succession, provided that the property shall be so distributed that each male shall take double the share
of each female standing in the same degree of propinquity.

Division of property where there is no relative entitled to succeed under the other provisions of this
Chapter

56. Where there is no relative entitled to succeed under the other provisions of this Chapter to the
property of which a Parsi has died intestate, the said property shall be divided equally among those of
the intestate's relatives who are in the nearest degree of kindred to him.

6. Discuss the various classes of heirs under the lslamic laws.

Classes of heirs
The heirs under Islamic law can be divided into three classes. This division is
made keeping in mind the closeness to the deceased. Under intestate
succession, two primary questions are required to be answered:

(i) Who are the heirs of the deceased?

(ii) What is the share of each of the heirs?

The Islamic law divides heirs into 7 classes, 3 principal classes and 4 subsidiary
classes. The principal classes are:

1. Quranic heirs or Sharers or dhawul-furud

2. Agnatic heirs or Residuaries or asabat 
3. Uterine heirs or Distant kindred or dhawul-arham    
The subsidiary classes are:

1. Successor by contract
2. Acknowledged kinsman
3. Sole legatee
4. Escheat
Upon the death of the deceased, the first step is to make the payment for
funeral expenses, debts and legacies of the deceased. Next, the property is
divided amongst the respective relations or sharers in proportion to the shares
they are entitled to receive. If any residue remains, it is then divided among the
residuaries. If there are no sharers and residuaries, the whole property will be
inherited by the distant kindred. 
A successor by contract is a person who entered into a contract with the
deceased before his death, in consideration to receive a payment. This payment
can be interest, fine etc. An Acknowledged kinsman is a person with whom the
deceased made an acknowledgement of kinship. Like, a man can acknowledge
another as his brother, who becomes an acknowledged kinsman. In the absence
of any relation in the principal classes and the first two subsidiary classes, a
person who is entitled to inherit the property of the deceased is known as the
sole legatee. Finally, in the absence of any of the principal or subsidiary classes,
the property of the deceased is inherited by the State and his whole estate
would escheat to the Government.

Quranic heirs

The Quranic heirs or the sharers are those relations of the deceased whose
shares have been determined by the Quran. Their share and the order of
preference in succession is fixed under the Quran. There are 12 Quranic heirs.
Let us discuss the sharers and their allotted shares.

1. Husband: A surviving husband inherits his wife’s property. In case he

has a child or child of a son how low soever, his share is ¼ of the
heritable estate. But if he does not have a child or child of a son how
low soever, then he inherits ½. 
2. Wife: A surviving wife is entitled to receive ¼ of the heritable property
where the husband has not left any child or son’s or grandson’s child.
If the husband has left a child, then the wife inherits ⅛. In the
exceptional cases where there is more than 1 wife, then they have to
divide this share equally amongst themselves. 
3. Father: The father becomes a Quranic sharer only if the deceased has
left a child or son’s or grandson’s child. Otherwise, he is not a Quranic
sharer. A father who is a Quranic heir inherits ⅙ of the deceased
estate.
4. Mother: There are 3 distinct scenarios for the mother’s inheritance:

 ⅙ share – Where there is a child or son’s child how low so ever or

where there are 2 or more brothers or sisters or 1 brother and 1 sister,
whether full, consanguine or uterine.
 ⅓ share – When there is no child or child of the son how low so ever
and no brothers or sisters.
 ⅓ of remaining share after deducting the wife’s/husband’s share –
Where there is a father and a wife/husband.
 1. Maternal Grandmother: In cases where the mother of the deceased
is absent, the maternal grandmother will be entitled to inherit ⅙ of the
share. 
2. Paternal Grandmother: Only in those cases where both the parents
of the deceased are absent, the paternal grandmother becomes a
Quranic heir. She is entitled to get ⅙ share of the heritable estate. If
there are 2 or more grandmothers of the deceased (maternal or
paternal) who become Quranic sharers, then both the grandmothers
will get a joint share of ⅙  which they have to share equally.
3. Paternal Grandfather: A paternal grandfather becomes a Quranic
sharer only when the father of the deceased is absent. He is entitled to
receive ⅙ of the share. Maternal grandfather is not a Quranic sharer in
any case.
4. Daughters: The daughters of the deceased become Quranic heirs only
in the absence of a son. Single daughter receives ½ share, but if there
are more than 1 daughter, then all of them inherit ⅔ share collectively,
which they share equally. 
5. Son’s Daughter: The son’s daughter becomes a Quranic sharer only if
she has predeceased the son of the deceased and such a son has not
left behind any son of his own. So, a single son’s daughter receives ½
share while 2 or more son’s daughters receive ⅔ collectively, which
they are required to share equally. If such grand-daughters survive
with a single daughter of the deceased, they collectively get ⅙ share.
6. Full sister: A single full sister receives ½ share of the heritable estate
when there is no son how low so ever, father, grandfather, daughter,
son’s daughter or brother. When there are 2 or more full sisters and no
excluder, the sisters will get ⅔ share collectively.
7. Consanguine sister: When there is only 1 consanguine sister with no
full sister and no excluder, then she is entitled to receive ½ share. But
if there is 1 full sister, then she will get only ⅙ share. 2 or more
consanguine sisters take ⅔ share collectively in the presence of no
excluder. But if there are 2 or more surviving full sisters, then the
consanguine sister is not a Quranic heir.
8. Uterine sister-brother: Uterine sisters and brothers become Quranic
heirs only if there is no child, son’s child how low soever, father and
grandfather of the deceased. The share of one such sister or brother is
⅙ and if there are 2 or more, they collectively inherit ⅔ share and
divide it equally. 

Agnatic heirs
Agnate heirs or residuaries come into the picture only when after dividing the
heritable estate between the Quranic heirs, there is still some estate left. This
residue estate goes to the residuaries. All the residuaries are related to the
deceased through males only. The residuaries are further divided into the
following sub-categories:

Residuaries in their own rights

This class involves the agnatic male relations of the deceased. No female is
included in this line of relationship. Residuaries in their own rights is divided
into:

1. Offspring of the deceased, that is the son of the deceased or the male
lineal descendants. 
2. The root of the deceased, which is the father or the grandfather of the
deceased, how high so ever.
3. Offspring of the father, that is the full brothers, consanguine brothers
and their male lineage. 
4. Offspring of the true grandfather, how high so ever. 

Residuaries in another’s rights

Those females who become residuaries, only when they coexist along with
certain males fall under this category. This means that the females become
residuaries when there exist males on the same degree, or of a lower degree
who would receive such share. These are:

1. Daughters with sons

2. Son’s daughters with a son’s son or a male descendant 
3. Full sister with the full brother
4. Consanguine sister with her brother

Residuaries together with another

There are only two residuaries together with another:

1. Full sisters, with the daughters or son’s daughters

2. Consanguine sisters, with the daughters or son’s daughters
Uterine heirs

Only in the absence of sharers and residuaries, the heritable estate of the
deceased is inherited by the uterine heirs or the distant kindred. One
exceptional circumstance is that only when the wife or husband of the deceased
survives, leaving behind no other sharer or residuary, then the distant kindred
can inherit the rest of the estate remaining after the share of the wife or
husband. In this class of heirs, all those relations who do not fit in the above
classes are included. Meaning thereby, the female agnates and the cognates are
placed in this class. Uterine heirs can be divided into 4 categories:

Descendants of the deceased

1. Daughter’s children and their descendants

2. Children of son’s daughters how low so ever and their descendants

Ascendants of the deceased

1. False grandfathers, how high so ever.

2. False grandmothers, how high so ever.  

Descendants of parents

1. Full brother’s daughters and their descendants.

2. Consanguine brother’s daughters and their descendants.
3. Uterine brother’s children and their descendants. 
4. Daughters of full brother’s sons how low so ever.
5. Daughters of consanguine brother’s sons how low so ever.
6. Sister’s (full, consanguine or uterine) children and their descendants.  

Descendants of immediate grandparents

1. Full paternal uncle’s daughters and their descendants.

2. Consanguine paternal uncle’s daughters and their descendants.
3. Uterine paternal uncles and their children and their descendants. 
4. Daughters of full paternal uncle’s sons how low so ever.
 5. Daughters of consanguine paternal uncle’s sons how low so ever. 
6. Paternal aunts (full, consanguine or uterine) and their children.
7. Maternal uncles and aunts and their children.
8. Descendants of remote ancestors how high so ever (true or false). 

7. Discuss the jurisdiction of the family courts and the procedure

followed by it.

Jurisdiction 
Section 7 of this act confers those power and jurisdiction on the family courts
which are exercised by the District Court or Subordinate Civil Courts in their
suits and proceedings. The Explanation of this section tells about the nature of
the suits and proceedings, which are as follows:

 A suit or proceeding for the decree of nullity of marriage, or restitution

of conjugal rights, or for the dissolution of the marriage between the
parties;
 A suit or proceeding for determining the validity of a marriage or
matrimonial status of a person;
 A suit or proceeding in the matter related to the properties between
the parties to a marriage;
 A suit or proceeding for an injunction or order arising out of a
marriage;
 A suit or proceeding for declaring the legitimacy of a person;
 A suit or proceeding for maintenance;
 A suit or proceeding for the guardianship of the person, or custody of
any minor.
Under Section 7(2), the family courts have also the power to exercise a
jurisdiction which is exercised by a Magistrate of the first class under Chapter IX
of the Code of Criminal Procedure, 1973 and such other jurisdiction as provided
by any other enactment.
How do family courts promote conciliation and speedy
settlement of family affairs
The main aim of the Family Courts Act, 1984 was to provide quick and less
expensive relief to the parties in a less formal way with least technicalities. The
object of the establishment of these courts was to promote reconciliation
between the parties and reach a stage of the agreement. It is the duty of the
Court to make reasonable efforts for the settlement. Therefore, the court works
with a conciliatory approach. There are some provisions of the act which
suggests that the family court follows a conciliatory approach to settle the
disputes between the party.  

Under Section 4 of the act, the judges appointed in the family courts should
have the aim to achieve the purpose of the act, which is to protect and preserve
the relations and by way of conciliation and counselling. The reasonable efforts
should be made to settle the disputes by way of an agreement. 

Duty of the court to make reasonable efforts for

reconciliation between the parties
Section 9 of this act prescribes the duty of the family court to make efforts to
promote reconciliation between the parties. As, per Section 9(1), in the first
instance, the family court, in every suit or proceeding, shall make efforts to
convince the parties to settle the dispute with an agreement and for this
purpose, the family court may follow the rules prescribed by the High Court or
follow such rules or procedure as the family court may deem fit.  

According to Section 9(2), if the family court finds that at any stage of the
proceeding there is a reasonable probability of settlement between the parties,
the court has the power to adjourn the proceedings until the settlement is
reached. And as per Section 9(3), the power prescribed under sub-section 2 is
an addition to the powers of the family court. 

Help from medical and welfare experts

As to promote reconciliation between the parties, Section 12 prescribes that the
family court can take assistance from medical and welfare experts. According to
this section, the family court is open with an option to secure the services of a
medical expert or any other person (preferably a woman), whether related to
the parties or not or any professional who will promote the welfare of the family
or any other person who can help the family court in discharging its functions. 

Association of social welfare agencies and counsellors 

According to Section 5 of the family courts act, the state government after
consulting with the High Court may make rules regarding the association of the
following persons or institutions with the  family court:

 Organisations or institutions related to social welfare;

 A professional person who will work for the welfare of the family court;
 Any person who is working in the field of social welfare;
 Any other person whose presence will ensure the effective working of
the family court.
Section 6 of this act provides that the state government after consulting with
the family court shall determine the number of counsellors, officers and other
employees who will help the family court in discharging its functions effectively
and shall ensure the presence of such counsellors, officers and other
employees.

The counsellors play an important role in the working of the family court. Most
of the cases of the family court can be solved by effective counselling. So, the
fair selection of counsellors for the family court must be ensured. 

SHORT NOTES:

1.  Coparcenary

The term ‘Coparcenary’ is used in matters related to Hindu Succession

law. It is a narrower part or institution within a Joint Hindu Family, It
deals with property related matters only i.e. the coparcenary property of
a Joint Hindu Family 

Composition 
Unlike the Joint Hindu Family, coparcenary consists of all male lineal
descendants up to three generations from the last holder of the property.
Senior-most member is called the ‘last holder’ and from him up to three
generations i.e. son, son’s son, and son’s son’s son constitute the
coparcenary. There can be any number of male members in a particular
generation.

Every member of the coparcenary is related to each other either by blood

or valid adoption. It is a laid rule that no person can become a coparcener
by marriage or any agreement to become a coparcener as coparcenary is
a creation of law as observed in Sudarshan v. Narasimhulu. As per the
Hindu Succession Act, 1956 no female member could be a coparcener but
it was later altered with 2005’s amendment to the Act. Now, Section
29A of the Hindu Succession Act provides that a female is entitled to
receive the same share in the coparcenary property as that of a son.

Beginning 
Like a Joint Hindu Family, the presence of the senior-most male member
is compulsory to start a coparcenary. The presence of at least two male
members is necessary to constitute and even to continue a coparcenary.
Just like a Joint Hindu Family, in a coparcenary, upper links are being
removed subsequently, and lower links are added to the chain, provided
there are at least two male members(coparceners) maintaining the status
of a joint family. 

A male member within the three generations from the last holder of the
property(total four generations) becomes a coparcener right from his
birth i.e. it is a ‘right by birth’ in the family property.

End
Coparcenary comes to an end either by the partition or by the death of all
the male members of the family or the sole surviving coparcener.

2. Marumakkattayam and Aliyasantana systems of law

Marumakkattayam Tradition
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.

As per Wikipedia Encyclopedia, it was a system of matrilineal inheritance

prevalent in Malabar which is the northern part of the present Kerala State in
India. 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. The origin of this system is traceable
to polyandry prevalent in ancient Malabar is an agreed fact by historians.
The joint family under matrilineal system is known as Tarawad and it
formed the nucleus of the society in Malabar.

his customary law of inheritance was codified by the Madras

Marumakkathayam Act 1932. The definition of Marumakkathayam in
Madras Marumakkattayam Act 1932 is Marumakkattayam means the system
of inheritance in which descent is traced in the female line and
Marumakkattayee means a person governed by Marumakkathayam Law of
Inheritance. Tarawad means the group of person forming a joint family with
community of property governed by Marumakkathayam Law of Inheritance.
A Tavazhi used in relation to the female, is defined as the group of person
consisting of that female, her children and all her descendants in the female
line. And a tavazhi used in relation to a male, is defined as the tavazhi of the
mother of that female. This system of inheritance is now abolished by The
Joint Family System (Abolition) Act, 1975 by the Kerala State Legislature.
But still some Muslim families in Malabar and people of Lakshadweep are
governed by this customary law system of inheritance as the Abolition Act
applies only to Hindus. Muslims in Malabar happened to follow this system
as they were originally Hindu converts and Lakshadweep people are
believed to be persons migrated from Malabar.

Further as per Sec 3(h) of Hindu Succession Act, "Marumakkattayam law"

means the system of law applicable to persons.-

(a) who, if this Act had not been passed would have been governed by the
Madras Marumakkattayam Act, 1932, the Travancore Nayar Act, the
Travancore Ezhava Act, the Travancore Nanjinad Vellala Act, the Travacore
Kshatriya Act, the Travancore Krishnanavaka Marumakkathayee Act, the
Cochin Marumakkathayam Act, or the Cochin Nayar Act with respect to the
matters for which provision is made in this Act, or

(b) who belong to any community, the members of which are largely
domiciled in the State of Travancore-Cochin or Madras (as it existed
immediately before the 1st November, 1956) and who, if this Act had not
been passed, would have been governed with respect to the matters for
which provision is made in this Act by any system of inheritance in which
descent is traced through the female line.

Marumakkattayam is a matrilinear system of inheritance that is unique to

Nair Tharavadus or Nair communities in Kerala state. It is exceptional in the
sense that it was one of the few traditional systems that gave women liberty,
and right to property. Under this system, women enjoyed respect, prestige
and power. An exception is the community of Mannadiars of Palakkad,
because they follow patrilineal system. Some historians believe that the
Marumakkattayam system started after the Chera-Chola wars during the
second Chera empire, as Nairs lost most of their men during the war.
In the Marumakkattayam system, the family lived together in a tharavadu
which comprised of a mother, her brothers and younger sisters, and her
children. The oldest brother was known as the karanavar and was the head of
the household and managed the family estate. Lineage was traced through
the mother, and the children "belonged" to the mother's family. All family
property was jointly owned. In the event of a partition, the shares of the
children were clubbed with that of the mother.The karnavar's property was
inherited by his nephews and not his sons. Among the Marumakkathayees, it
was the custom that the wife and children of a male member of a joint family
used to reside in the joint family of which his wife is a member. During the
past ten decades, there had been an urge for a thorough change in the old
family customs.

The Marumakkattayam system is not very common in Kerala these days for
many reasons. Kerala society has become much more cosmopolitan and
modern. Nair men seek jobs away from their hometown and take their wives
and children along with them. In this scenario, a joint-family system is not
viable. However, there are still a few tharavads that pay homage to this
system. In some Nair families, the children carry the last name of their
mother instead of the father, and are considered part of the mother's family,
and not the father's. Nairs connect to and trace their lineage to a tharavadu
and not to a member of the family. Tharavadu names are quite an important
element of social reckoning, though decreasing in importance these days.
The Kerala rulers also followed the 'Marumakkattayam' system.

As a result of intense social pressure, legislative enactments sanctioned the

claim to partition from the joint family and adopt Makkattayam system i.e.
inheritance through male line. Due advantage has been taken of these
legislation by the majority of the communities and the gradual but the steady
breakup of the joint family system resulting in individual members leaving
their joint family and setting up homes of their own has been a salient
feature in the recent past. But legislation has not extirpated the
Marumakkattayam customs and traditions. The divided members still cling
to their old family names and titles. In the observance of the customary
ceremonies and pollutions the affinity of the Marumakkattayam system is
still evident.
Aliyasanthana Tradition

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.

As per sec 3(b) of Hindu Succession Act, "Aliyasantana law" means the
system of law applicable to persons who, if this Act had not been passed,
would have been governed by the Madras Aliyasantana Act, 1949, or by the
customary Aliyasantana law with respect to the matter for which provision is
made in this Act.

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.

In this system the eldest member is known as ejaman and the eldest female
member is known as ejamanthi. The senior-most member whether male or
female, is entitled to carry on the family managements.\No member of the
tarwad had a right to claim partition or separate possession of his share
without the concurrence of other members. But the law was changed by the
Marumakkattayam Act and Aliyasantana Act. A member was given a right
to separate himself or herself from the joint family and claim partition. The
ascertainment of the share at the partition is per capita and not per stripes.
 In Marumakkattayam and Aliyasantana systems, the question of inheritance
could arise only in the respect of individual property or in respect of the
family of the extinct tarwad. The self acquired property of a male member of
the tarwad, which has not been disposed off of by him during his lifetime,
passed to the tarwad and formed part and parcel of its property.

3. Doctrine of blending

This doctrine has been explained in one of the case laws

“Mallesappa Bandeppa Desai and another vs. Desai Mallappa
and Others”

It was held in this case that the property when once blended with
the joint family property can never be claimed back when the joint
family property is severed. And this is known as the doctrine of
blending.

There exist well-known principles of Hindu family that all the Hindu
families are together in sharing food, worship idols and estate
acquire in the absence of any proof that the property is divided and
this presumption continues to exist and will continue in the future as
well. The burden to prove that there exist self-acquired properties in
the current ancestral property lies on the person who acquired that
property and never claimed a right over that property.

According to the judgement made by Bombay high court, a property

which is acquired by joint labour of member without using any of
joint family funds will also be counted as joint family property if no
reverse intention is shown.

4. Gender Justice

It is said that “justice” is primarily a problem of

discovering the right course of action. Since ancient
times, political thinkers have been trying to formulate the
concept of justice. With the rise and growth of modern
world and modern consciousness, especially under the
effective influence of the principles of democracy and
socialism, this very concept has been thoroughly
transformed.

“Gender justice” is often used with reference to

emancipator projects that advance women’s rights
through legal change, or promote women’s interests in
social and economic policy. However, the term is rarely
given a precise definition and is often used
interchangeably with notions of gender equality, gender
equity, women’s empowerment, and women’s rights.
Gender justice in the spirit of social justice is about more
than simply questioning the relationship between men
and women. It involves crafting strategies for corrective
action toward transforming society as a whole to make it
more just and equal and it means “a place in which
women and men can be treated as fully human”.