Mitakshara t Hindu Family-guide 6u5r2z

1.Explain Mitakshara t Hindu family or Discuss Structure of Mitakshara JHF or Features of Mitakshara JHF

(During earlier ages, agriculture was the main source of income----------required many hands and legs to work together for the same.----------- resulted in t Hindu family--------------Mitakshara and Dayabhaga systems-------------- Mitakshara JHF is governed by rules contained in Mitakshara------------- Mitakshara is a running commentary on yajnavalkia Smrithi written by Vijnaneswara.------------- Mitakshara is applicable in all parts of India except the states of Assam and Bengal.----------------- Dayabhaga is JHF is governed by rules contained in ‘Dayabhaga’---------------- Dayabhaga is a digest of all smrithis viz. Manu smrithi, Narada smrithi, Yajnavalkia smrithi) (Mitakshara JHF consists of a male, his wife, his unmarried daughters and his male descendants upto any generation(i.e; Sons, grand Sons, great grand sons and so on.), their wives or widows and unmarried daughters.----------- t family status is the result of birth, marriage or adoption-------- JHF is a matter of law not by contract------------- t in food, worship and estate------------- each member entitled to be maintained----------- Possession of movable or immovable property is not an essential condition----------- illegitimate

son is a member------------ On marriage, daughter ceases to be a member of the father’s family and becomes a member of her husband’s family--------------------- Coparceners (4 male generations starting from the common ancestor ) only shall have the right over the ancestral property----------- A member of JHF can keep individually acquired property called separate property---------- managed by Kartha of the family----------- t family continues with other until partition--------------------------JHF system was abolished in Kerala by t Hindu Family System(Abolition) Act 1975.) During earlier ages, agriculture was the main source of income, which required many hands and legs to work together for the same. This resulted in evolvement of t Hindu family. The t Hindu families in India may be mainly classified into two heads. 1.Mitakshara t Hindu family 2. Dayabhaga t Hindu family. Mitakshara JHF is governed by rules contained in Mitakshara. Mitakshara is a running commentary on yajnavalkia Smrithi written by Vijnaneswara. Mitakshara law is applicable in all parts of India except the states of Assam and Bengal. Dayabhaga is JHF is governed by rules contained in ‘Dayabhaga’. Dayabhaga is a digest of all smrithis viz. Manu smrithi, Narada smrithi, Yajnavalkia smrithi. Mitakshara t Hindu family also known as Hindu Undivided Family is a peculiar institution recognized and followed by Hindu Society from ancient period. 1. Mitakshara JHF consists of a male, his wife, his unmarried daughters and his male descendants upto any generation(i.e; Sons, grand Sons, great grand sons and so on.), their wives or widows and unmarried daughters. The following diagram gives a clear picture of Mitakshara JHF M-(Common male ancestor) + his wife W and his unmarried daughters |

Sons of M + their wives or widows and unmarried daughters | Son’s Sons of M + their wives or widows and unmarried daughters | Son’s Son’s Sons of M+ their wives or widows and unmarried daughters | Son’s Son’s Son’s Sons of M + their wives or widows and unmarried daughters. and so on to any generation.

2. A t Hindu family consists of persons who live together. t family status is the result of birth, marriage or adoption. 3. hip of the JHF is a matter of law and cannot be a matter of agreement. 4.The of the t Hindu family are t in food, worship and estate and may own t family property or individual properties. 5.All are entitled to reside in the family house. 6.They are entitled to be maintained by the family. 7.Beneficial interests of surviving will be increased by death of a member and decreased by birth of a new member. 8.t family may or may not have properties. Possession of movable or immovable property is not an essential condition for existence of a t family. 9. Even illegitimate son is a member of the father’s t family. 10.On marriage, daughter ceases to be a member of the father’s family and becomes a member of her husband’s family. Even after her husband’s death, she continues to be a member of her deceased husband’s family. However, if she returns to her father’s family and claims the bounty of the family, she is entitled to the right of maintenance. 11. Coparceners (4 male generations starting from the common ancestor ) only shall have the right over the ancestral property

12.The Hindu undivided Family is recognized as an entity for the purpose of taxation including Income tax. 13. A member of JHF can keep individually acquired property called separate property.

14.The JHF property or the coparcenary property is managed by Kartha of the family. 15. Even after the death of M, the common male ancestor, the t family continues with other until partition. In Kerala, the system of t family was abolished by the Kerala t Hindu Family System(Abolition) Act 1975

2.Discuss Mitakshara Coparcenary

(Mitakshara Coparcenary is a smaller body in the Mitakshara JF system----------It is based on the birth right of the sons over the ancestral property----------- coparceners only shall have the right over the property--------------consists of 4 male generations starting from a common male ancestor ie. Father—Son—grandson--------great grandson-----------5th generations onwards are only, no coparceners----------but becomes coparcener on the death of the father----------- wife and children can reside in the family house and can claim maintanence------------By The Hindu Succession (Amendment) Act, 2005 the daughter of a coparcener is also a coparcener------------ common ownership and possession of property------------- new birth decreases the share and death of a coparcener increases the share------------ property in actual possession by ‘Kartha’ of the family, who manages the property----------can claim partition of coparcenary property----------- right to restrain unauthorized acts of other coparceners----- ask for the of management---------------coparcener can alienate his undivided share----------The Hindu Women’s Right to Property Act 1937, widow can enjoy the property during her life time and would go back to surviving coparceners after her death---------------Hindu Succession(Amendment) Act 2005

abolished the Doctrine of survivorship and enacted Doctrine of intestate succession rule.-------- comes to an end by partition.) 1.The Mitakshara Coparcenary is a narrower body in the Mitakshara t family system. 2.The Coparcenary concept is based on the birth right of the sons over the ancestral property held by father. 3.Coparceners only shall have the birth right over the ancestral property. 4. Coparcenary consists of only (1) the father, (2) sons, (3) Son’s Sons and (4) Son’s son’s Sons. Only 4 generations starting from the father.

Father | Sons | Sons’ Sons | Sons’ Sons’ Sons

5.The mother, wives or widows of sons, and unmarried daughters are not coparceners. 6.Sons belonging to the fifth generation onwards are not coparceners but only of the t family. They become coparceners on the death of the father who is holding the ancestral property. 7.A coparcener’s wife and children of are entitled to reside in the family house and can claim maintanence out of coparcenary funds. 8.The Hindu Succession (Amendment) Act, 2005 the daughter of a coparcener is also a coparcener and she has the same rights and liabilities in the coparcenary property as those of the son.

9.The coparceners are having unity of ownership over the coparcenary property. 10.Coparceners cannot predict the quantum of individual share, as new birth decreases the share and death of a coparcener increases the share. 11.The coparceners are having t possession over the coparcenary property. 12. Though ownership and possession vests with coparcener, it will be in actual possession by the seniormost coparcener called ‘Kartha’ of the family, who manages the property.

13. Each coparcener can claim partition of coparcenary property. 14. A coparcener have the right to restrain unauthorized acts of other coparceners in the coparcenary property like erection of building etc., if it interferes with his enjoyment of the property. 15. A coparcener can ask for the of management of the t property. 16. A coparcener can alienate his undivided share in the coparcenary property by gift, mortgage or Sale as per section 30 of Hindu Succession(Amendment) Act 2005. 17. On the death of a coparcener his interest in the coparcenary property will go to other surviving coparceners. Legal heirs are not entitled to the property. This is called doctrine of survivorship. Changes in doctrine of survivorship a.This doctrine of survivorship was modified by the enactment of ‘The Hindu Women’s Right to Property Act 1937, which provided that if a coparcener dies leaving his widow, she can enjoy the property during her life time and would go back to surviving coparceners after her death. The surviving coparceners are called reversioners. b. Hindu Succession(Amendment) Act 2005 abolished the Doctrine of survivorship and enacted Doctrine of intestate succession rule. (Section 6(3)) 18.Coparcenary comes to an end by partition or death of a coparcener.

3.Explain Coparcenary within a coparcenary

(On the death of a coparcener, -------who has acquired property in his own name,------the self acquired property will inherit to his heirs by succession -------and not to the surviving coparceners by survivorship.) Under Mitakshara Law it is possible that there may exist separate coparcenaries within a coparcenary. A coparcener is entitled to acquire property in his own name known as his separate property, when he is continuing as a coparcener. On the death of a coparcener, who has acquired property in his own name, the self acquired property will inherit to his heirs by succession and not to the surviving coparceners by survivorship.

A(Father)

B generations

C- Son D (Son’s son)

First E(Son’s son)

coparcenary(4 including father-

A,B,C,D,E.F)

New coparcenary starting F(Son’s Son’s son) From E (on the Self acquired property Of C as ancestral property) To E,F,G

G(Son’s Son’s son’s son)

The above figure illustrates coparcenary within a coparcenary.

4.Explain Apratibandha Daya and Sapratibandha Daya

(Daya’ means heritage--- - properties inherited by a male Hindu from his F, GF, GFF are called apratibandha daya----- cannot alienate) -- (properties inherited by a male Hindu from from any relation other than his father- Ex: mother, brother,uncle etc are called Sapratibandha daya----------can alienate--------On his death the sapratibandha daya will devolve by succession and not by survivorship) ‘Daya’ means heritage or property inherited by a person.

Under Mitakshara Law property inherited by a male Hindu is divided into two classes. They are 1. Apratibandha daya or Unobstructed heritage 2. Sapratibandha daya or obstructed heritage.

Apratibandha daya or Unobstructed heritage All properties inherited by a male Hindu from his father, father’s father and father’s father’s father are called unobstructed heritage or apratibandha daya. The holder of apratibandha daya cannot alienate the property. Sapratibandha daya or obstructed heritage All properties inherited by a male Hindu from any relation other than his father are called obstructed heritage or sapratibandha daya. Thus properties inherited by a male Hindu from his mother’s father, brother etc obstructed heritage. His sons do not have any right over this during his life time. The holder of sapratibandha daya can alienate the property. On his death the sapratibandha daya will devolve by succession and not by survivorship.

Explain different ways of acquiring properties in Mitakshara Law. Or Explain t Family property and Separate property Under Mitakshara law property is classified into two heads. 1. t family property or coparcenary property. 2. Separate property or self acquired property.

1.t family property

(Ancestral property-- apratibandha daya or unobstructed property-----------. Over this property, sons, grand sons and great grand sons will get birth right.--------------- Income from ancestral property will also constitute ancestral property ------------ t acquisitions---- properties acquired by t labour of the coparceners will be presumed to be t family property ---------- keep the tly acquired properties as their deparate property ---- Blended Property-- coparcener throws his separate property into the common stock) The t family property or Coparcenary property is that in which every coparcener is having t interest and t possession. It is the property in which the sons acquire an interest by birth. Doctrine of survivorship is applicable. The t family property may be classified into the following heads based on the sources from which it comes. a. Ancestral property

The property inherited by a male Hindu from his father, grand father or great grand father is known as ancestral property. This is also known as apratibandha daya or unobstructed property. Over this property, sons, grand sons and great grand sons will get birth right. Income from ancestral property will also constitute ancestral property. b. t acquisitions properties acquired by t labour of the coparceners will be presumed to be t family property. But if the coparceners intentionally keep the tly acquired properties as their deparate property, it will not become a coparcenary property. c. Blended Property- If a coparcener throws his separate property into the common stock after relinquishing the claims over it, it is called Blending and the property is called blended property.

2.Separate property or self acquired property No birth right over it, Doctrine of succession is applicable, Not so, only the owner has the right over it.

The following are Separate Property:-

(Separate Property ------ the property inherited by male from any relative other than father, GF or GGF ---------- No birth right over it------- Doctrine of succession applies------It is also called Saprathibanda Daya-------Gifted property------Recovered lost family property------Self acquisitions------Gains of learning--Government Grants---Income from Separate property---- Sole coparcenery) 1. Obstructed Heritage or Saprathibanda Daya- the property inherited by male from any relative other than father, father’s father , father’s father’s father. IT is said to be obstructed because no birth right can be claimed over it. 2. Gifted property- Gift from friends or relatives. 3. Recovered lost family property- If a coparcener without spending family funds recover lost t family immovable property, he can take 1/4th of it or in case of movable property. The whole as its separate property 4. Self acquisitions- By a person’s own labour without the aid of t Family Fund. 5. Gains of learning- Gains of learning means the acquisition of property made by means of education or training In Gokul Chand vs Hukum Chand a coparcener sent to England for special training at the expense of his family. The person when t the civil Service, the Privy Council held that his salary was t family property. But in 1930 the Hindu Gains

of Learning Act was ed and after this a gain of learning is a person’s separate property though t family funds are used for his education. 6. Government Grants- Given to a particular individual is his separate property. 7. Income from Separate property 8. Sole coparcenery- If the t Family property devolves on sole survivor coparcener it’s become his own separate property.

Difference between Mitakshara JF and Dayabhaga JF SL. No 1

SL. No

Mitakshara t Hindu family

Dayabhaga t Hindu Family

What is it?

running commentary digest of all of Yajnavalkia Smrithi smrithis

2

written by

Vijnaneshwara

Jeemootha Vahana

3

Location

Only in Bengal and Assam

4

t family

Throughout India except Bengal and Assam is patriarchal

5

Property right

A male child gets birth right over the ancestral property .

6

inheritance

7

Widow and daughter

Doctrine of survivorship is applicable – if a male dies the property is inherited by the surviving males entitled only to residence and maintenance

after the death of the father the son gets the right Doctrine of succession is applicable : legal heirs including wife , daughter etc succeeds. get right over the property of the deceased

Matriarchal

8

Consists of

Mitakshara coparcenary consists of males of 4 generation, F,Son, GS, GGS starting from common male ancestor F.

Female also be coparcenaries

9

Women

Women have only limited rights

Not so

10

Share of property

During the lifetime of the father itself the son can claim partition or the share of its property for right over the ancestral property birth of the person is the pre condition Kartha more powerful

Only after death of Father son gets right.

11

12

Kartha

death of the person’s father is the precondition Not so, he has to give full s as and when required by the

Doctrine of Survivorship: (applicable only in the case of Mitakshara coparceners--- ancestral property will not be vested in the heirs by succession-------But upon the other surviving coparceners-------Legislature diluted the doctrine-------- - Women’s Right to Property Act 1937 provided that the widow could possess and enjoy

the property as a limited estate-----------As per Hindu Succession Act, 1956- S (6), if the deceased coparcener has left behind a female or male relative mentioned as class1 heirs, his interest will be transferred as per provisions of the Act.) This doctrine is applicable only in the case of Mitakshara coparceners. The deceased coparcener’s ancestral property will not be vested in the heirs by succession. But upon the other surviving coparceners. Subsequently, legislature interferes and diluted this doctrine E.g. 1. Hindu’s Women’s Right to Property Act 1937 provided that the widow could possess and enjoy the property as a limited estate ( Property rights are not absolute). She cannot alienate the property and after the death her property goes to the surviving coparceners of her deceased husband’s family. Such persons to whom the property is vested are called Reversioners. 2. Hindu Succession Act, 1956- As per this Act, (S (6)), if the deceased coparcener has left behind a female or male relative mentioned as class1 heirs, his interest will not be devolved by survivorship but in accordance with the provisions of the Act.

DOCTRINE OF PIOUS OBLIGATION

(As per the ancient Hindu law ------------non-payment of a debt is a sin, which would follow the spirit of the debtor in the other world------------ law imposed an obligation upon the son, to discharge the liabilities- of F,GF, GGF--------- This is called Doctrine of Pious Obligation----------but liabilities don’t extent to the whole debts---------

only to Vyavaharika Debts like debts for t family business expenses+for the marriages of daughters etc----------------not liable for avyavaharika Debts like Debts incurred for liquor, for a concubine (keep), for gambling etc) As per the ancient Hindu law, a son has a pious obligation to pay-off the debts of his father.  It was regarded by the Hindu that non-payment of a debt is a sin and its consequence would follow the spirit of the debtor to the other world. Thus if a Hindu dies without discharging his liabilities his soul has to face evil consequences.  Hence law imposed an obligation upon the son, to discharge the liabilities of father, grandfather and great grandfather. This is called Doctrine of Pious Obligation.  But the liabilities of the son don’t extent to the whole debts contracted by the father. The son has to discharge only the Vyavaharika Debts and not liable to discharge Avyavaharika debts (debts contracted for a cause repugnant to good morals)  E.g. for Avyavaharika Debts: Debts incurred for liquor, for a concubine (keep), for gambling etc  Vyavaharika debts contracted for the purpose of t family business expenses, for the marriages of a person (daughter) etc.  Under the modern law liability of the son to discharge the liabilities of the father is limited to the extend of the assets received by him.

DOCTRINE OF ANTECEDENT DEBTS

(father can alienate t family property for Legal necessity and benefit of the estate----------- not for any other purpose---------------This already existing

debts are antecedent debts-------------The sons cannot challenge or impeach the alienation made by the father for discharging antecedent debt) As per the ancient Hindu law, As a general rule, father can alienate t family property only on the following two grounds:1.

Legal necessity

2

For the benefit of the estate

This alienation cannot be challenged by the sons and it becomes binding upon them. But if the property is alienated for any other purpose the sons are not bound.( e.g. father mortgaging the property and using the money for his personal purpose) When father alienates t Family Property to discharge a debt which already exists the debt which is discharged is called Antecedent debt i.e. the debt is really prior debt in point of fact and time. The sons cannot challenge or impeach the alienation made by the father for discharging antecedent debt and the sons become bound by such alienation.

KARTHA – FUNCTIONS AND POWERS (Possession and management of family property----------Right to Representation-----------to contract debts------------to manage family business------------to compromise------------------------- to refer a dispute to arbitration------------to acknowledge debts except time-barred

debt----------------to alienate t Family Property for Legal Necessity& Benefit of the estate) The manager of a t Hindu Family is called KARTHA. In a t family system if the father is alive father is the kartha. After his death, the senior most male member becomes the Kartha. In the Commissioner of Income Tax vs Seth Govind Ram, the Supreme Court held that only males can become Kartha. In a t Family, the Kartha represents the family in all matters, can sue and be sued on behalf of the family, can enter into contracts on behalf of the family and can mange the family business.

The powers of Kartha can be summarized as follows: 1. Possession and management of family propertyThough all coparceners are entitled in t ownership and possession, Kartha is having the actual possession of the property, management and the power to collect income from the property.  Right to Representation- To represent the family in all legal social, religious matters.  Power to contract debts- For the genuine purposes of the family he can contract vyavaharika debts.  Power to manage family business- If there is no t family business, Kartha can start a new business only with the consent of the others.  5.Power to compromise – He can enter into a compromise of disputes relating to property, debts and litigations.  6.Power to refer a dispute to arbitration- For the purpose of settling disputes, Kartha can refer it for arbitration.  7.Power to acknowledge debts except time -barred debt.  8.Power to alienate t Family Property- This power is not unlimited. In ordinary cases the consent of the other must be sort out. But under the following two circunstances, Kartha can alienate (by sale, mortgage etc) without the consent of others. ( Hanuman Prasad’s case the Privy Council held)

1.Legal Necessity : Payment of Govt. revenue, Marriage expenses of daughter, Funeral expenses, Litigation expenses, Construction of residential building for the family.

2.Benefit of the estate : Sale of unproductive and inconveniently situated land for the purpose of purchasing fertile land, Sale of a house in dangerous condition

Kartha - Duties

(Duty to keep proper --------,recover debts---------, spend the funds in a reasonable manner---------, not to make secret profit) Kartha is in fiduciary position. Hence he has a: 1. Duty to 2. Duty to recover debts 3. Duty to spend the funds in a reasonable manner and save for the family 4. Duty not to make secret profit

PARTITION (separation of the t status---------, property is divided into specific shares--------, status of coparcener and member of t family ceases--------- modes of partition are --------By actual division ( by metes and bounds)---------By executing a partition deed.) What is Partition –  It is the separation of the t status by the of a t family.

 The t family property is divided into specific shares which are allotted to the

.  The status of coparcener and member of t family ceases.  The major modes of partition are -By actual division ( by metes and bounds)-By

executing a partition deed.

Subject matter of partition The general rule is that the entire But provisions

t family property is liable to partition.

for the following are given from the entire t family property.

(Entire t family property except----- Separate

=> temples and idols,----- well, animals,

property--

wearing apparels----, outstanding debts--- Maintenance of ---- ‘Marriage expenses)  Separate property of a coparcener  Family temples and idols  Properties indivisible by nature e.g. well, animals, wearing apparels etc.  Payment of outstanding debts  Maintenance of who do not take a share on partition  ‘Marriage expenses of daughters.

The remaining property is subjected to partition

Persons having right to partition (Coparceners--------,Minors--------, adopted sons---------,female not entitled to demand but can claim) 1.Coparceners 2. Minors 3. Adopted son. 4. Female though not entitled to demand partition, they can claim shares on partition.

Partition can be affected by anyone of the following ways:

(By agreement----------, By actual division-----------, By Arbitration-----------,By giving notice------------,by suit for partition)  By agreement between the parties

(if intention is clear in the agreement, it amounts to partition even in the absence of physical division.)  2.By actual division -By metes and bounds.  3.By Arbitration--- Partition can be made through an award (arbitrator’s judgement)of

the arbritator.  4.By giving notice--- to the other ; specifying the intention to separate  5.By suit for partition

 6.In the case of apostasy (religious conversion ) a member’s t status is terminated.

RE-OPENING OF PARTITION (Once a partition , always a partition. Comment )

(Once a partition , always a partition---------,partition once made cannot be re-opened----------- except in cases of Son begotten at the time of partition, -------unborn child-------------, unsound coparcener----------, missing coparcener------, minor claiming unjust partition) The general rule is that the partition once made cannot be re-opened ie once a partition always a partition. There are certain exceptions to this rule. For Eg law it permits reunion. Similarly partition once made can be re- opened in the following cases. 1. A son begotten at the time of partition, though, not born before partition can re-open it if a share is not reserved for him. 2. A son begotten and born after partition can demand re- opening if his father though entitled to take a share has not reserved a share for himself. 3. A disqualified coparcener, on the removal of disqualifications, can claim reopening. E.g.-unsound. 4. An absent or missing coparcener can on his return re-open if share has not been reserved him.

5. Can be re-opened by minor on attaining majority if the partition made during the minority was unjust and prejudicial to his interest. 6. If Partition was effected by an agreement and the consent was obtained by fraud coercion, misrepresentation, undue influence etc. It can be re-opened at the option of the coparcener whose consent is so obtained.

HINDU RELIGIOUS AND CHARITABLE ENDOWNMENTS

(Endowments-----Property dedicated for a religious or charitable purpose ------ religious (dedicated to temples, monasteries deities)------Charitable (hospitals, schools, asylums etc)-------- male or female can make-------- must be a major with a sound mind----------- irrevocable)  When a Hindu dedicates his property for a religious or charitable purpose it is called endowments An endowment may be  Religious endowment (property dedicated to temples, monasteries deities (God) )  Charitable endowment (dedicated for constructing hospitals, schools, asylums etc.  A Hindu male or female can make endowments.  The dedicated must be a major with a sound mind .  It is irrevocable.  If any objects for which the endowment is created , cannot be carried into effect, doctrine of Cypres(pronounced as Seeprey) is

applicable and hence the income from the property can be used for any other objectives as nearly as possible as the intention of the dedicator. DEVASTHANAM PROPERTY

(property is dedicated in favour of a deity is called DEVASTHANAM PROPERTY----- managed by a trustee----- can alienate the property only for legal necessity and benefit of the estate-----May appoint a poojari) If property is dedicated in favour of a deity the property is called DEVASTHANAM PROPERTY it is managed by a trustee called Shebiot (in Bengal) or Dharmakartha (In Tamil Nadu) or Urallen( in Malabar). He can alienate the property only for legal necessity and benefit of the estate. The founder of a temple may appoint himself or other person as Shebiat is different from Poojari.

MUTT

(Mutt---------Centre of religious instruction and philosophy-------------- It is a religious endowment------------- It is managed by Mahant or Madathipathi-------------- If he is found to be fraudulent, dishonest, etc. court can remove him-- Eg Kanchi Sankarachariya Madathipathi’s case.)

Centre of religious instruction and philosophy. It is a religious endowment. It is managed by Mahant or Madathilpathi. If he is found to be fraudulent, dishonest, etc. court can remove him. Eg Kanchi Sankarachariya Madathipathi’s case.

STHANAM AND STHANAM PROPERTY

(“Sthanam” ---------“a position of dignity” ---------------.In rich t families---------Marumakathayam law, ----------------some properties set apart for the kaaranavar to keep up his dignity and social position.-------------The income for maintaining his dignity.----------------On his death, the property is given to the successor in office-------------------- Sthanam property was regarded as impartiable estate which cannot be divided and partitioned. ---------------------But after the commencement of Hindu Succession Act 1956 the impartible nature has been abolished and as per Section 7 when a Sthani dies the property will be divided and distributed among the heirs.)

“Sthanam” literally means “a position of dignity” .In rich t families governed by Marumakathayam law,some properties were set apart for the kaaranavar to keep up the social position. The income from such property can be utilized by the sthani or sthanamdar for maintaining his dignity.On his death, the property is given to the successor in office . Sthanam property was regarded as impartiable estate which cannot be divided and partitioned. But after the commencement of Hindu Succession Act 1956 the impartible nature has been abolished. And as per Section 7 when a Sthani dies the property will be divided and distributed among the heirs.

The special features of impartiable estate under the ancient law  Junior have no birthright over it.  It can be alienated only by the holder and that too only for legal necessity and benefit of the estate.  Property is not liable to partition.  Income from the property will be the absolute property of the holder. The concept of impartiable estate has been abolished by the Hindu succession Act 1956.

Tharavad, Karanavan, Thavazhi (Marumakkathayam

System prevailed among Hindu Nairs------system was matriarchal--------- t family is called Tharavad----It consists of a mother, her male and female children, the children of the female children etc.---------- The children of male children did not belong to the Tharavad of his father but to the tharavad of his mother.------------- The senior most male member is called kaaranavan and senior most female member is called kaaranavathi-----------In the absence of kaaranavan ,kaaranavathi

can manage the family----------The powers and functions are similar to that of kartha)  In Kerala, Marumakkathayam System prevailed among Hindu Nairs.  The system was matriarchal.  The t family is called Tharavad.  It consists of a mother, her male and female children, the children of the female children etc. The issues (children) of male children did not belong to the Tharavad of his father but to the tharavad of his mother.  The senior most male member is called kaaranavan and senior most female member is called kaaranavathi.  In the absence of kaaranavan ,kaaranavathi can manage the family.  The powers and functions are similar to that of kartha.

The powers of kaaranavan can be summarized as follows:

(Possession and management of family property----------Right to Representation-----------to contract debts------------to manage family business------------to compromise------------- to refer a dispute

to arbitration------------- to acknowledge debts except time-barred debt----------------to alienate t Family Property for anything except sale&mortgage 1.Possession and management of family property- Though all are entailed to t ownership and possession ,kaaranavan is having the actual possession of the property management and the power to collect income from the property. 2. Right to Representation----To represent the family in all legal social and religious matters. 3. Power to contract debts— For the genuine purpose of the family for contracting vyavaharika debts. 4 .Power to manage family business— If there is no t family business, karanavan can start a new business only with the consent of the others. 5.Power to compromise—He can enter into a compromise of disputes relating to property debts, litigations etc. 6. Power to refer a dispute to arbitration—For the purpose of setting disputes ,kaarnavan can refer it for arbritation. 7. Power to acknowdge debts except time barred debts. 8. Power to alienate t family property -----This poweris not unlimited .In ordinary cases the consent of the other must be sort. But under the following 2 circumstances , karanavan can alienate (by sale mortgage etc.)with out the consent of others.

Duties of karaanavan

(Duty to keep proper --------,recover debts---------, spend the funds in a reasonable manner---------, not to make secret profit) Karanavan is a in a fiduciary position. Hence he has a 1. Duty to 2. Duty to recover debts 3. Duty to spent the funds in a reasonable manner and save for the family. 4. Duty not to make secret profit.

‘thavazhi’ (A ‘thavazhi’ ----------branch of Tharavad .-------------consists of a group of descendants in female line of a female common ancestress who is a member of a tharavad----------------. Thus it is a unit of tharavad -------------having its own separate property distinct from Tharavad properties.) A ‘thavazhi’ is a branch of Tharavad .It consists of a group of descendants in female line of a female common ancestress who is a member of a tharavad. Thus it is a unit of tharavad having its own separate property distinct from Tharavad properties. The Kerala t Family System (Abolition) Act, 1975 abolished t family system in Kerala

HINDU SUCESSION ACT, 1956

It deals with intestate succession of properties (movable as well as immovable) of a Hindu male or female. The Act contains elaborate provisions regarding the devolution of interest in coparcenary property .A deceased coparcener of a t family may have interest in the coparcener property as well as over self acquired property. Section 6 deals with the devolution of undivided interest of a male member of Mitakshi coparcenery. (Doctrine of survivorship). Section 8 to 13 deals with succession over self acquired properties of a male Hindu whether he is a coparcener or not. By virtue of a proviso to Section 6 ,if a Mitakshara coparcener dies inestate, leaving behind a female relative or a male relative enumerated in class-1 of the schedule, his interest will not devolved by survivorship but by succession as if it is his self – acquired property. The presence of any of the relatives prevents his interest devolving by survivorship to the other coparceners.

Doctrine of Notional Partition It is a theoretical calculation of the share of a deceased person just before his death. In order to find out the interest of a deceased coparcener---------------------- in the family property at the time of his death----, a deemed or notional partition is affected---------------- i.e. it is not a real partition.-------Only a theoretical calculation----------- This interest is calculated by answering the following question.--------------If there was a partition, just before his death, what would have been allotted to him as his share”?----------------The interest so calculated by notional partition shall be devolved by succession to his legal heirs as per Succession Act.

The property of a male Hindu dying intestate shall devolve Firstly up on the relative specified under CLASS-1(Class-1 heirs)

There are 12 heirs.They are No

Class—1 heirs

Son

2

Daughter

----------------------------------

3

Widow

----------------------------------- W

4

Mother

--------------------------------------- M

5

Son of pre-deceased son

6

Daughter of pre-deceased son ----------------------------------D-PS

7

Son of pre-deceased daughter ----------------------------------S-PD

8

Daughter of pre –deceased daughter ---------------------------D-PD

9

Widow of a pre- deceased son

10

-----------------------------------

S

1

D

--------------------------------- S-PS

---------------------------------W-PS

Son of pre-deceased son of a pre-deceased son ---------- S PS PS

11 12

Daughter of a pre-deceased son of a pre-deceased son ----- PS PS

Secondly if there is no CLASS---1HEIR,there upon the relatives specified in class-2 heirs. There are 9 entries. They are : Entr

No

Class- 2 heirs

Short Form

y I

1

Father

F

II

2

Son’s Daughter’s Son

S-D-S

3

Son’s Daughter Daughter

S-D-D

4

Brother

B

5

Sister

S

1

Daughter’s son’s son

D-S-S

2

Daughter’s Son’s Daughter

D-S-D

3

Daughter’s Daughter’s Son

D-D-S

4

Daughter’s Daughter’s Daughter

D-D-D

1

Brother’s son

B-S

2

Sister’s son

S-S

3

Brothers Daughter

B-D

4

Sisters Daughter

S-D

1

Father’s father

F-F

2

Father’s mother

F-M

1

Father’s widow

F-W

2

Brother’s Widow

B-W

1

Father’s brother

F-B

2

Father’s sister

F-S

1

Mother’s Father

M-F

2

Mother’s mother

M-M

1

Mother’s brother

M-B

2

Mother’s sister

M-S

III

IV

V

VI

VII

VIII

IX

The presence of heir in ENTRY I will exclude all others .In the absence of ENTRY I heirs ENTRY II heirs will get the property. This process will continue and the ENTRY IX heirs will get the property only when there is no heir in other entries. All heirs in the same Entry succeeds simultaneously and they divide the property equally.

Thirdly if there is no Class-I or Class-II heirs ,upon the AGNATES(a person is agnate of another if the two are related by blood or adoption through males) Lastly upon COGNATES(a person is a cognate of another if the two are related by blood or adoption but not wholly through males) If there is no heirs mentioned above ,property shall devolved upon the Government by ESCHEAT(Bona Vacantia-Ownerless property).

INTESTATE SUCCESSION TO THE PROPERTY OF A FEMALE HINDU (S. 15- 16) Rule—1 Devolves firstly upon the sons and daughters (including the children of any pre deceased son or daughter) and the husband. In the absence of a son or daughter property inherited by her from the father or mother shall not devolve upon the husband but upon the heirs of her father and in the absence of heirs of father upon the heirs of mother. In the absence of any son or daughter property inherited from her husband or father-in-law, shall devolve upon the heirs of husband. If there is any property acquired by her own toil and moil, it will go to her husband. Rule—II In the absence of any son, daughter, or husband, property will devolve upon the heirs of husband. Rule--- III In the absence of any son, daughter, husband or heirs of husband, it shall devolve upon her mother and father. Rule -- Iv In the absence of any son, daughter, husband , heirs of husband or her mother and father, it shall devolve upon the heirs of father and if there is no heir of father, then to heir of mother. If there is no heir, there is provision for Escheat. DISQUALIFICATIONS (S 24—28) Murderer—A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered. Re-marriage – The remarriage of widows – son’s widow, son’s son’s widow and brother’s widow, before succession opens, disentitle them from inheriting. Convert’s descendants - If a Hindu converts to another religion, children born to him or her after such her conversion and such conversion and their descendants will be disqualified. It is to be noted that apostasy will not disqualify that disqualify that person – only his/her children and descendants are disqualified.

Sthridhan

The term means women’s property Under Hindu Law it is used in a technical sense to denote the property held by a female over which she is having absolute ownership and hence absolute right of alienation. E.g. Gifts and bequest (from a (from a testament), self acquired property, property obtained in lieu of (instead of) maintenance and any property purchased with the Sthridhan In the case of a married woman, certain restrictions were recognized under the Hindu Law. On the basis of such restrictions on her power of disposal, Sthridhan was sub- divided into 2. 1. Saudhayika-(she had full right of disposal even during the existence of marriage. E.g. property gifted or bequeathto her, by her relatives)- consent of husband not necessary. 2. Non-Saudahyika- (She had no right of alienation without the consent of her husband. E.g. all types of Sthridan except that which has been gifted or bequeath by her relatives.

MUSLIM LAW

(Law---The gift of immovable property in India is governed by The Transfer of Property Act----------. However the provisions are not applicable to Muslims. What is hiba? ----Hiba is the immediate and unqualified transfer of the property without any return.--Donor----- Donor-> Person with a sound mind and a major. Donee – Any person (Hindu, Muslim, Christian, minor etc).-----------Donnee must be in-existence at the time of making the gift.---------------- A gift to unborn is void.----------------- In the case of gift to minor or lunatic, the possession of the property must be handed over to the legal guardian.-------Consent-----Free Consent – Without coercion, undue influence, fraud, misrepresentation, mistake etc. Subject matter------Can be made of immovable or movable, corporeal or incorporeal except spes successions (a mere chance of an heir apparent to succeed). How is made---Can be made orally or in writing------ clear declaration of gift by the donor showing the intention-------- Gift should be accepted by the donee or any other person on his behalf---------- A valid gift can be made of Musha(undivided share)---- owner and donee together can possess and enjoy the property tly-----Conditions--conditional gift is void----- donor can make a valid gift of a property to two or more donees at the same time------ a gift is revocable at the mere will of the donor , at any time before the actual delivery of possession.Types hiba-bil-iwas -Gift with exchange (hiba-bil-iwas)-Gift can be given for a consideration(iwas)----- After delivery of iwas(consideration) the gift cannot be revoked------Areeat -----When a Muslim grants license to another person to take the usufructs without consideration, the transactition is called ‘Areeat’.----

Sadaqah ---when gift is given with the object of acquiring religious or spiritual benefit , it is called Sadaqah,This is irrevocable.)

II.VASIYAT(WILL) (Will is the declaration of the intention of the testator to be carried into effect after his death -------------. Persons ------The person who executes the will is called MUSI(testator)--------------the person to whom the property is given is called Musilliah(legatee) ----------------- the subject matter is called Musieveh(legacy). Who can make will-------Under Muslim law, both males and females can execute will.------------- A testator must be a major with a sound mind.---------------------- The age of majority is 18 years as per the Indian Majority Act 1875 How can be made?--------------- It can be either made orally or in writing .------------------No particular format is prescribed. What can be made?------ Movables or corporeal or incorporeal property transferred.------------

immovable, can be

Conditions-----1.The subject matter must be in existence at the time of death of the testator.—2.cannot dispose by will more than one – third of what remains after payment of funeral expenses and debt-------- 3.If the will is executed in favour of one of the heirs, consent of other heirs necessary to make the will valid------------4.A will made to a person who is not in existence at the time of testator’s death is void. and the legacy will lapse and it will form part of the estate of the testator.

Hiba – Marz-Ul – Mau(Death bed gift) (Death bed gift ----------- A Muslim can make a valid gift of his movable or immovable property when he is in death bed ----------1.Donor suffering from a disease and apprehends his death.-------2. Donor must make an clear declaration stating his intention.-----------3. Possession must be delivered and must be accepted by the donee.---------------4. Cannot make gift in excess of the one third.--------5. If given on behalf of one of the heirs, consent of others necessary to make the transfer valid.) Difference between : No

1

Donatia Mortis Causa (Death-bed gift) Law

Hiba-Marz-ULMaut

Governed by the provisions of Governed by Indian Succession Act principles.

Khuranic

1925 2

What?

Only movables can be given

3

conditions

One –third rule, subsequent One – third rule and consent of heirs etc not consent rule is applicable applicable

4

Both movables and immovables can be given

If the donor recovers the gift Gift is valid even if the fails donor subsequently recovers from illness.

Wakf & Mutawalli () (Wakf?----------------Muslim -----major --------of sound mind --------------permanently dedicates any property for religious or charitable, the transaction is called Wakf-------- Property vested in God perpetually and irrevocably. ------It can be made orally or in writing.--------The deed is called Wakf-nama------------------ and the person who dedicates is called Wakif.------------------Bequeathable third rule is applicable if the Wakf is created through a will------- Doctrine of Cypres(as near as possible) is applicable------------ and hence if the object fails property can be used for some purpose as near as possible to the object so failed---- Public Wakf----------- intended for the benefit of public------ Private Wakf ---------Wakf-alal-aulad- intended for the benefit for the of the family of the descendant’s of the Wakf . )

Mutawalli Liabilities

–

Duties

Powers

and

(The manager of the wakf property is called the mutawalli. ---------- the Kerala Wakf Rules, 1996 were made.----------- Mutawalli – Duties Powers and Liabilities---- appointed by the Wakif – either orally or in writing---- males and females can hold the office---- Non Muslim can also be appointed----- religious activity cannot be performed by a female or a non Muslim. not the owner of the property but only a manager------- not the owner------- only a manager------------ If Wakif fails to appoint, Wakf board appoints------- functions, powers and duties are usually specified in the Wakf-nama (Wakf Deed)---------------- Apply for

registration------Change of the management must be made known to the board by the incoming Mutawalli.--------Budget to be prepared and submitted before the Wakf Board.----------Shall keep regular s. Of income and expenditure--------------Furnish s to the Board--------Carryout the directions of the Board.------------Supply information required by the Board.--------Allow inspection of properties, records etc.----------------Discharge public dues.-----------------Transfer Wakf property only with the prior consent of the board.----------------Purchase immovable property on behalf of the Wakf only with the prior sanction of the Board.------------Shall not execute a lease exceeding 3 years.-------Shall not lend or borrow money for the Wakf without the concent of board.-----------Shall not spend money out of Wakf funds for meeting any cost of cost of or expenses incurred by him ---------------------Shall pay the specified percentage of annual income as contribution to the board---------The Act prescribes punishment for any failure --------First class Judicial magistrate can try the offence.)

Mutawalli--- Removal - grounds (Convicted more than once for failure to apply for registration, furnish statements allow inspections, carryout directions,------------------Convicted for criminal breach of trust.-------------------------Mental/physical defect or infirmity.-------------Insolvency.----------------Drug addiction or liquor addiction----------------------Employed as a paid legal practitioner on behalf of the Wakf.----------------Mis appropriation of funds.---------Failure to maintain regular s for 2 consecutive years.-----------------Disobeying orders made by Central or State govt. or Board. ----------An appeal lies to the Wakf Tribunal constituted under this Act. )

Authorities under the Wakf Act. (1.Wakf Board—In each State.----------------2.Wakf Tribunal—In each State.-----------3.Central Wakf

Council—Constituted Govt.-------------)

by

the

Central

(1.Wakf Board-----In every state, State govt shall establish Wakf Board.-------- It is a body corporate having perpetual sucession and common seal.----------- It can acquire, hold and transfer property in its own name. ---------------It can sue and be sued in its own name.------------------ The are appointed by the govt. and there shall be a chairman.---------------- The disqualifications of the include the following:-------------Not a Muslim--------------Less than 21 years of age------------------Unsound mind----------------Insolvency----------------Convicted for corruption---------------The include Muslim M.L.A’s, Mutawallis, M.P’s . Muslim of Bar Council , Scholars in Islamic Theology etc.)

Functions Board

and

powers

of

the

Wakf

(General superintendence of all Wakf in the state.------Ensure that the income from the Wakf is property utilized.-------------Maintain a record regarding the income and beneficiaries of every Wakf.---------------Give directions for the proper istration of Wakf.-------------Settle schemes of management for a Wakf.--------------Direct the proper utilization of surplus funds of a

Wakf.--------------Scrutinize and approve budgets.--------------Appoint and remove mutawallis---------------Takes steps to recover lost properties of the Wakf.---------------Institute and defend suits relating to Wakf.----------------Authorise the transfer of Wakf property.--------Inspect Wakf property, s, records etc.------------Call for returns , s and other information---------------Can borrow money and repay money with consent of State Govt.) 2.

Wakf Tribunal

Constituted by the State govt.------------- for the determination of any dispute, questions or matters relating to a Wakf or Wakf property. -------------------It consists of one person having the rank not below that of District Judge.------------ It is having the powers of a civil court under C.P.C. 3.

Central Wakf Council

Constituted by the Central govt. for advising on matters concerning the working of Wakf Board and istration of Wakf.----------It consists of the Union Ministers in charge of Wakf as ex. Officio chairman ----------------------------3 persons to represent Muslim organization, having all Indian character , -----------3 Muslim M.P.s -----------3 Wakf board chairmen, by rotation , ----------------2 Muslim Supreme court/High court judges ------------.1 Muslim advocate,------------------ one person to represent Mutawallis. -----------3 Muslim scholars

Note: 1st organ – Executive Power – State Wakf Board ---------- 2nd organ – Judicial Power – State Wakf Tribunal -------------3rd organ – Advisory Power – central Wakf council

Muslim Religious institutions (Mosque –> a place where all Muslims are entitled to go and perform their devotions --------------------It can be a public mosque (any sect can offer prayers) or private mosque( for offering prayers by the owners and of his family).----------2. Quaibristan (graveyard) –> a Muslim dedicate his property in Wakf for a graveyard. ---------- public one (open for the burial of any Muslim) or private one (for the burial of family .) 3. Dargah—A shrine of a Muslim saint---------place of religious prayers ------------.It is managed by Mujawar ------------- read fatwa to the devotees. 4. Takia, khangah& Sajjadanashin—>The word ‘Takia’ means the resting place of a Muslim saint near a graveyard. ----------is place where the

saint imparts to the

religious instructions devotees.------------------ When more persons are attracted the humble Takia grows into a khangah. ------------It is a Muslim monastery and the religion head is called Sajjadanashin who is not only a manager but also a spiritual head.

5. Imambara—A separate place in a private house ----------------religious prayers and ceremonies are performed by the of house.----------- It is generally maintained by Shia Muslims.)

RIGHT OF PRE-EMPTION (Shufaa) (Muslim law recognizes a right of pre-emption.---------- It is a preferential right of the owner of immovable property to become the purchaser of another immovable property which is sold to another person. The Sunni law recognizes such rights in the case of the following 3 categories of persons:------------1.Co-sharer of immovable property(Shafi-Sharik)----------2.Servient owner and dominant owner (easement) provided both are Muslims (shafi-i-khalit).-----3.Owners of ading immovable property when both are Muslims (shafi-i-jar). Shia law recognizes only co-owners right. E.G ‘A’ and ‘B’ sells to ‘C’. are Sunni Muslims and are co-owners of certain immovable property ‘A’ instead of selling his share to ‘B’,sells. After the completion of sale, B can compel ‘C’ to sell the property to him.This right of ‘B’ is called Right of Pre-emption. Procedure to be followed 1. After the completion of sale, the pre-emptor has to make his first demand without any delay; delay defeats the right. 2. The formal demand is to be made in the presence of at least 2 witnesses and the preemptor must be ready and willing to pay the price. 3. If the buyer does not voluntarily agrees to transfer the property even after the demands, the pre-emptor has to file a suit to enforce his rights- within 1 year from the date of taking possession by the purchaser. The principle of demand (talab), must be strictly followed while exercising the right of pre-emption i.e., the first and formal demand must be made)

Law of inheritance When a male/female Muslim dies intestate, before distributing the estate among the heirs, the estate is to be first applied in the payment of funeral expenses, death-bed charges, expenses for obtaining succession certificate, wages due to the domestic servants,debts of the deceased etc… The residue is to be distributed among the heirs – if Sunni, in accordance with the Sunni law of inheritance (khanafi law)(Indian Muslims are presumed to be Sunnis) .For the purpose of succession the Sunni law classifies heirs into 3 categories 1. Khuranic heirs or sharers—12 Khuranic heirs—

each sharer is entitled to a specific share. 2. Residuaries 3. Distant kindred or distant relatives. However certain categories are disqualified from inheritance. (a)

A murderer is disqualified – a person who has caused the death intentionally or by mistake, negligence or accident is disqualified under Sunni Law. But under Shia Law, disqualified only if the death was caused intentionally.

(b)Under Sunni Law, illegitimate child is disqualified from inheriting father’s property but can inherit from the property of mother and the relatives of the mother. (c) Marriage under Special Marriage Act 1954. If a Muslim marries under the Special Marriage Act, he ceases to be a Muslim for the purpose of inheritance. The provisions of Indian Succession Act, 1925 applies in such cases. (d) A child in the womb of his mother is competent to inherit, provided it is born alive. But if it is not born alive the share already vested gets divested.

Khuranic heir Father- If the deceased leaves behind a child or child of a son, the father of the deceased gets 1/6 of what remains after the payment of the funeral expenses, debts etc. if no such a child, the father remains as a residuary. 2. Father’s father- (True Grandfather) - his share is 1/6 , he gets only if there is a child r or a child of a son of the deceased and no father when there is no child or son’s child and father, the true and father inherits as a residuary (the presence of father excludes father’s father 3. Husband- if a female dies, husband is entitled to ¼ if there is a child or child of a son of the deceased if no such a child , he gets ½. 4.Wife-gets 1/8 When there is child or child of the son of the deceased .If more than one wife they equally share it .If there is no child or son’s child wife’s share become ¼ and if more than one wife they share it equally. 5. Mother-If there is child or son’s child or two or more brother’s or sisters or one brother and one sister (Uterine or consanguine) of the deceased, mother entitle to 1/6. If there is no person listed above the share will increase to 1/3. 6. True Grandmother—1/6 and if more than one grandmother they equally inherit. 7. Daughter –When there is no son, daughter gets1/2, if there is son, she becomes a residuary. If there is more than one daughter, they collectively inherit 2/3. 8. Son’s daughter—1/2.The following relatives completely excludes the son’s daughter son or two or more daughters or sons or 2 or more higher son’s daughter. 9. Uterine brother—1/6 if there is no child, child of son, father, or true grand father. When there is more than one uterine brother, they collectively inherit 1/3. 10. Uterine sister—1/6 If there is no child, child of son, father, or true grand father. When there are more than one uterine brother, they collectively inherit 1/3. 11. Full sister—1/2 when there is no child, child of son, father, or true grand father or full brother. If more than one full sister they collectively inherit 2/3.The presence of full brother makes her a residuary and take ½ of what that brother takes.

12. Consanguine sister—1/2 when there is no child, child of son, father, or true grand father or full brother If more than one consanguine sister they collectively inherit 2/3. Doctrine of Increase (Doctrine of Aul) The doctrine can be illustrated as follows A Muslim lady dies living behind father, husband and 2 daughters. She had a bank balance of Rs 60, 000 1.

Father

1/6 of

60000

10,000

2.

Husband 1/6 of

60000

15,000

3.

Daughter 1/6 of

60000

40,000

The total amount comes to 65,000 i.e. Rs 5000 is excess of the amount. In such cases the share of each sharer is to be proportionately reduced. The name of the doctrine is a misnomer. Because in fact the share is not increased but decreased.