#dayabhaga law

[seemabhatnagar]

The son and the daughter are equally entitled to inherit a share of the property by birth as coparceners.

Yagnaseni Patel v. The GM Mahanadi Coalfields Ltd. & others

WP No. 28534/2020 before Hon’ble Orissa High Court

U/A 226 & 227 of Constitution of India

Writ Petition Allowed on 22.06.2023

By Hon’ble Mr. Justice Dr. B R Sarangi J & Hon’ble Mr. Justice M S Raman J

Background

This is a case where daughters claim equal share in the property of their late father. After the death of the father petitioner’s 03 brothers got property mutated in their name in the Revenue Record. Petitioner and her 02 other sister filed Mutation Appeal before Sub Collector, Sundargarh. Sub-Collector directed Tehsildar to record the name of 03 sisters in the Record of Rights (RoR). Name was recorded in RoR along with their 03 brothers. Daughter’s than claimed equal share in the property before Claim Commission being daughter of the Coparcener are entitled to get equal share as that of her brothers irrespective of the date of death of her father. Brothers disputed on the basis of the Judgment of the Supreme Court namely Prakash and others v. Phulabati and others & Mangammal @ Thulasi and another v. T.B. Raju and others. In these cases, it was held by the SC that daughters are not entitled to get the benefit being not the co-sharer. Claim Commission decided the matter against the petitioner on 04.01.2020.

Contention of the Petitioner

Judgment, basing upon which the Claims Commission decided the matter, had been referred to the Larger Bench and the Larger Bench decided the same in the case of Vineeta Sharma v. Rakesh Sharma and others, 2020 (II) OLR (SC) 569, which was in favor of the petitioner.

Being daughter of the Late Kulamani Patel stand on the same footing as are the sons.

In view of the decision of the larger Bench in the case of Vineeta Sharma v. Rakesh Sharma and others, the decision of the Claim Commission is not sustainable and it be quashed.

Contention of the Respondent’s

Since the parties (Petitioner Daughter) approached the Claims Commission for adjudication of the matter and the same was decided on the basis of the law applicable at the relevant point of time. Wherefore, the present Writ Petition be dismissed.

 Writ Court exercising a limited supervisory jurisdiction constitutionally vested under Article 227 should abhor to undertake a deeper examination in such matters.

Hindu Law & Amendment in Hindu Law (2005)

In Hindu Law Succession of property in a Hindu Undivided Family is governed by two schools of law 1. Mitakshara 2. Dayabhaga. Mitakshara entitles a son to a right equal to his father in the joint family property by birth.

All the male descendants of a Hindu in the male line up to the fourth degree of generation are his sons. The adopted child also gets a right equal to the right of his adoptive father in the joint family property from the date of adoption. The daughter is not given a right by birth in the joint family property.

The Parliament, being inspired by the amendments in four States namely Andhra Pradesh, Tamil Nadu, Maharashtra & Karnataka, passed The Hindu Succession (Amendment) Act, 2005 for the whole of India.

The amendment is that even in a joint family governed by the Mitakshara law the daughter of a coparcener is made as good a coparcener as a son. She has the same rights in the coparcenary property as she would have had if she had been a son. She has a right to agitate in respect of her share in the joint family property.

Decision of Larger Bench of the Supreme Court in re Vineeta Sharma v. Rakesh Sharma and others.

 The finding of the apex Court (Prakash and others v. Phulabati and others & Mangammal @ Thulasi and another v. T.B. Raju) that daughters are not entitled to get the benefit of equal share being co-sharers in the ancestral property, no more remains res integra in view of the Larger Bench judgment of the apex Court in the case of Vineeta Sharma v. Rakesh Sharma and others.

In the case of Vineeta Sharma, Section 6(1) of the Hindu Succession (Amendment) Act, 2005 was under consideration and a question was framed “does the Hindu Succession (Amendment) Act, 2005, which gave equal right to daughters in ancestral property, have a retrospective effect”.

The Apex Court, answered the same in affirmative, held that daughter shall remain as coparcener (one who shares equally with others in inheritance of an undivided joint family property) throughout life, regardless of the question as to whether her father was alive when the law was amended in 2005 or not

Sons and daughters of a coparcener become coparceners by virtue of birth.

Observation of the Orissa High Court

In view of the decision dt. 11.08.2020 of the Apex Court in Vineeta Sharma v. Rakesh Sharma and others., Claims Commission has committed error apparent on the face of the record by passing the order impugned denying benefit to the daughter.

The earlier judgement of the Supreme Court namely Prakash and others v. Phulabati and others & Mangammal @ Thulasi and another v. T.B. Raju has no effect in view of the subsequent decision of the Larger Bench.

The daughter has a right to get the property of her father from the date the Amendment Act came into force.

Decision

The Writ Petition was allowed and the order dated 04.01.2020 passed by Claims is not sustainable in the eye of law and was quashed. However, the matter was remitted back to the Claims Commission for re-adjudication.

Seema Bhatnagar

[freelawbydjure]

Property Rights of Daughters under Hindu Succession Act, 1956

17 March, 2023

The inheritance of property to the legal heirs is performed according to testament or will but if a person dies intestate then the transfer of property to the beneficiaries is performed as per the provisions of the Hindu Succession Act, 1956. This article provides a brief discussion of the Hindu Succession Act, of 1956, and its 2005 Amendment highlighting various changes that provide uniform order of succession with respect to the property rights of Hindu daughters.

Hindu Succession Act, 1956

The Hindu Succession Act of 1956, is related to the inheritance and succession of property as well as deals with intestate or unwilled succession. This Act is applicable to all Hindus, Sikhs, Jains, or Buddhists other than those under the jurisdiction of the State of Jammu and Kashmir. This Act is not applicable to people governed by the Special Marriage Act, of 1954. Moreover, it is efficiently applicable to areas of Mitakshara and Dayabhaga schools. Herein, Mitakshara School and Dayabhaga School are two popular schools of the Hindu Joint Family System on which the rules of Hindu personal law depend. Devolution of succession and Devolution by survivorship are the two modes of property devolution, according to the Mitakshara School. The survivorship rule is applicable only to the ancestral property or coparcenary property whereas the succession rule is applicable to the self-acquired property of an individual. Dayabhaga School on the other hand mainly emphasizes the succession rule. 

As per Section 2 of this Act, all earlier customs, laws, and rules, applicable to Hindus were abrogated. Earlier, the female heirs were not recognized and survivorship rule in coparcenary property was applicable only to the male heirs. Coparcener is the one who shares legal rights for inheriting property, money, and title as well as denotes ‘Joint Heir’ in the Hindu Undivided Family. After the enactment of this Act, if a male dies intestate and only a female heir is left behind then the property would not devolve as per the survivorship rule and would devolve according to the provisions of the Hindu Succession Act. There are four different categories provided by the Act that illustrates the order of succession on the basis of nearness or closeness of blood including Class I heirs, Class II heirs, Agnates, and Cognates. Moreover, the HSA also provides rights to a child in womb under Section 20. It states that an unborn child in the womb at the time of the death of an intestate and is born alive will possess the same rights to inherit the property of the intestate as he or she would have if born before the death of the intestate. 

Apart from this, there are certain disqualifications too which restrict an individual from inheriting the property. Under Section 24 of the Act, certain widows who re-marry after the death of their spouse are disqualified to inherit the property as widows. They are mainly classified into three categories including brother’s widow, son’s widow, and son’s son’s widow. In addition to this, any person who commits murder or assists in the commission of the murder is disqualified from inheriting the property of the murdered person or any other person as mentioned in Section 25 of the HSA.  Moreover, Section 28 of the Act ensures that “No person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity, or save as provided in this Act, on any other ground whatsoever.” Under the provisions of the Hindu Succession Act (HSA), it was clear that only males were coparceners. Here, the question arises whether a daughter is a coparcener or not. This was answered after the 2005 amendment of the Hindu Succession Act, 1956. 

Also Read: Supreme Court Updates 

Hindu Succession (Amendment) Act, 2005

On September 9, 2005, the Hindu Succession Act was amended and provided daughters with equal rights to property as sons. Section 6 of the Hindu Succession Act then became a well-established section defining daughters as coparceners by birth, having equal and same rights as well as liabilities as sons. Both sons and daughters come under class I heirs. In addition, this Act also illustrates that a married daughter has the right to seek partition of the coparcenary property which is not restricted by any limitation. If a Hindu male or female dies after the commencement of the 2005 Amendment, the property will devolve by intestate or testamentary succession. 

Testamentary succession

A testamentary succession is where the property is governed by a testament or a will and is passed to the beneficiaries named in it. According to Hindu Law, a Hindu male or female has the right to make a will (valid and legally enforceable) of his/her property either giving an equal share or in favor of anyone. The distribution of property will be as per the provisions of the will, not through the inheritance laws. If the will is not valid then only the laws of inheritance can be implemented for property devolution.

Intestate 

An intestate succession is where a Hindu male or female dies without leaving behind any valid or legally enforceable testament or will, then the property is divided among the legal heirs as per the inheritance laws.

Along with this, Section 3 of the Hindu Succession Act, 1956 was also omitted after the 2005 Amendment, this means the right to seek partition within a house was granted to women. Apart from all these changes, the Hindu Succession (Amendment) Act, of 2005, could not provide a valuable answer to one question, whether a daughter has property rights after the death of her father or not. The following case laws answer the aforementioned question. 

Case Laws

Prakash vs. Phulvati (2016)

In this case, a suit was filed by the respondent in the Trial Court of Belgaum in 1992, seeking partition of her father’s property (ancestral and self-acquired) after the death of her father on February 18, 1988. In the legal suit, the respondent claimed a separate possession of 1/7th and 1/28th share in ancestral property and some other properties respectively. This was partly allowed by the Trial Court and a share was given to the respondent as per the provisions of the Hindu Succession (Amendment) Act (HSAA), 2005 (effective from September 9, 2005). The respondent approached the Karnataka High Court challenging the decision of the Trial Court. In an appeal before the High Court, she claimed that as per Section 6(1) of the Amendment Act, she had become a coparcener; therefore, entitled to have an equal share of her father’s property as sons. On the contrary, the appellant (respondent’s brother) stated that the provisions of the Amendment Act are not applicable in this case because their father died before the commencement of the Amendment Act. Here, the decision was in favor of the respondent; therefore, the appellant approached the Supreme Court and contested that the respondent could only get a share of the self-acquired property of the father. The main issue addressed in the top court was whether the provisions of the Amendment were applicable even after the death of the respondent’s father before its commencement.

The Supreme Court rejected the contention of the respondent that a daughter becomes a coparcener after her father’s death, irrespective of the fact that the date of his death is before the commencement of the 2005 Amendment Act. The respondent also contended that the Amendment Act was a social legislation; therefore, should be applied retrospectively which was not accepted by the bench (Justice Anil R. Dave and Justice Adarsh Kumar Goel ). The top Court said that the legislature has mentioned that the 2005 Act is applicable from September 9, 2005, thus it cannot be applied retrospectively. Through this judgment, it has been determined that “if both father and daughter were alive on September 9, 2005, then the provisions of the Amendment Act came into effect.”

Danamma @ Suman Surpur & Anr. vs. Amar & Ors. (2018) 

The case was filed by the appellants against the judgment and order passed by the Trial Court and High Court which refused to give coparcener rights to them because they were born before the enactment of the Hindu Succession Act. In this case, the appellants were the daughters of Mr. Gurulingappa Savadi and Sumitrai. In 2001, Mr. Gurulingappa Savadi died leaving behind his four children (two daughters and two sons) and widow. In 2002, the respondents (Arun Kumar and Vijay) filed a suit for separate possession of the joint family property. The respondents denied giving any share to the daughters (appellants) as they were born prior to the enactment of the Succession Act as well as dowry was given to them at the time of their marriages; therefore, no share of the property was provided to them. The Trial Court stated that the widow and two sons of the deceased are the coparceners; therefore, rejecting the claims of the appellants. The same was upheld by the High Court in the year 2012. Further, the appellants approached the Supreme Court and filed a Special Leave Petition challenging the decision of both the High Court and the Trial Court. 

The Supreme Court bench comprising Justices A.K. Sikri and Ashok Bhushan gave the judgment in this case. After hearing both the respondents and appellants, the bench opined that without any doubt, Section 6 of the 2005 Amendment ensures the same property rights and liabilities to daughters and sons of either living or dead parents. In this context, the Hon’ble Supreme Court said that after the death of the propositus (Mr. Gurulingappa Savadi) of the joint family, the property is equally divided among his widow and four children. The bench ordered that both appellants would be entitled to 1/5th share of the property each. Hence, the decision was in the favor of the appellants (daughters). While hearing the matter in the Supreme Court, various existing judgments and orders in the previous cases were addressed such as Prakash vs. Phulvati, Vaishali Satish Gonarkar vs. Satish Kehorao Gonarkar, and others.

Vineeta Sharma vs Rakesh Kumar (2020) 

It is a landmark judgment delivered by a three-judge bench of the Supreme Court stating that “Daughters possess equal property rights as coparceners as of sons under the HSA, irrespective of the enactment of the 2005 amendment.” It also stated that the daughters are coparceners by birth and possess all the rights and liabilities like sons. The primary question answered in this judgment was regarding the interpretation of Section 6 of the HSA, 1956, after the amendment of the HSA in 2005. In this case, the verdicts of Prakash vs. Phulvati and Danamma @ Suman Surpur & Anr. vs. Amar & Ors. were overruled. Conflicting verdicts were given in these cases by two-judge benches regarding the daughter’s right as a coparcener under the HSA and Amendment Act. In the Vineeta Sharma case, a three-judge bench of the Supreme Court was convened consisting of Justice M.R. Shah, Justice Arun Mishra, and Justice S. Abdul Nazeer. 

The case was filed by the appellant, Ms. Vineeta Sharma, against her two brothers (Mr. Satyendra Sharma and Rakesh Sharma) and their mother (respondents). The appellant’s father died in the year 1999 leaving behind his widow and three sons (one unmarried son died in 2001). 14th share of the father’s property was claimed by the appellant as daughter which was not accepted by the respondents. They stated that she (Vineeta Sharma) was no longer a part of the joint Hindu family after her marriage. The Hon’ble Delhi Court dismissed the appeal and said that provisions of the 2005 Amendment were not applicable here as their father died before the commencement of the HSAA, 2005. After hearing the contentions, the Supreme Court bench overruled the verdicts of Prakash vs. Phulvati and Danamma @ Suman Surpur & Anr. vs. Amar & Ors. The bench stated that HSAA gives a daughter the right to a father’s property from birth whether born after or before the commencement of the Amendment Act. Also, it highlighted that the daughter’s father doesn’t need to be alive at the time of commencement to entitle property rights. At last, it was determined that “Daughters are coparceners by birth and have equal liabilities as of sons in either case, born after or before the enactment of HSAA or father is alive or dead after or before the commencement of HSAA.”

Conclusion

In a nutshell, the Hindu Succession Act and its 2005 Amendment made Hindu women/daughters absolute owners of the property notwithstanding its source of acquisition. They provide equal rights and liabilities to Hindu daughters as that of sons with respect to the property of alive or dead parents. Not only this, but the Act also ensures the right of a child in the womb on the inherited property. Also, the provisions of the Act disqualified the rights of a murderer to inherit the property as well as discard all the grounds that exclude inheritance on the basis of deformity, disease, or physical defects.

Also Read: Family Courts Act, Provisions, Jurisdiction, and Amendment of 2022

[court-marriage-lawyers]

What Is Section 3 Of Hindu Marriage Act And What Does It Mean

The Hindu Marriage Act of 1955 primarily governs Hindu marriages in India. It lays down requirements that acknowledge, invalidate, dissolve, or reunite married couples. It also lists the legitimate courts that have jurisdiction over cases under the virtue of this act. It was created with the intention of protecting the rights to marriage for Hindu brides and grooms who are united by the sacred tie of marriage at any ceremony. 

The Hindu Marriage Act of 1955, enacted by the legislature, covers marriages among Hindus, restitution of conjugal rights, legal separation, dissolution of marriage, maintenance, and guardianship.

Section 3 of the Hindu Marriage Act of 1955

Section 3 of the Hindu Marriage Act provides the definition clause.

Section 3(a) - The term "Custom" and "Usage" refer to any rule that has become a rule among Hindus in any specific area, tribe, community, group, or family after being regularly and consistently followed for a significant period.

Provided that the regulation is clear, not irrational, and not against any public policy; furthermore, if a regulation exclusively applies to a family, it must not have been stopped by the family.

Section 3(b) – The term “District Court” refers to the city Civil Court in any location where there is one and the major civil court of the primary jurisdiction in any other area. It also encompasses any other Civil Court that the State Government may designate as having jurisdiction over the matters covered under the Hindu Marriage Act of 1955.

Section 3(c) – The term “full blood” and “half blood” refers to two persons who have a common ancestor with the same wife, they are said to be connected by full blood, and when they share the same ancestor with different wives, they are said to be related by half blood.

Section 3(d) – The term “uterine blood” refers to two persons who share a common ancestor but have different husbands and are said to be linked through uterine blood.

Section 3(e) – The term “prescribed” means in accordance with rules adopted according to the Hindu Marriage Act of 1955.

Section 3(f) (i) – The term “Sapinda Relationship” refers to the generational links within the extended family, such as father, grandfather, and so forth. The sapinda relationships have been defined in two different legal annotations. They are:

Dayabhaga- It refers to a person who is connected by the same pinda 

Mitakshara- It refers to a person who is connected by the same bodily particles (ball of rice or funeral cake offered at sraddha ceremony)

Section 3(f) (ii) – Two people are said to be "Sapindas" of each other when it indicates that they are descended from each other.

Section 3(g) – The term “degree of prohibited relationship” means when two people are deemed to be in a restrictive relationship.

If one is the lineal descendant of the other

If one was the spouse of a descendant or lineal ascendant of the other

if one person was the spouse of the other's brother, father, mother, grandfather, or grandmother, or if they were all related by blood

If the two are siblings, offspring of siblings, children of two brothers, children of two sisters, or uncle and niece

You will need a lawyer to make you understand the relevance of Section 3 of the Hindu Marriage Act of 1955 and register your marriage under the act. If you want to know more about Section 3 of the Hindu Marriage Act and then register your marriage under the said act in Gurgaon, then Court Marriage Lawyers in Gurgaon can be hired, and if you want to know more about Section 3 of the Hindu Marriage Act and then register your marriage under the said act in Ghaziabad, then Court Marriage Process in Ghaziabad can be hired. Likewise, Court Marriage Lawyers in Meerut can be hired if you want to know more about Section 3 of the Hindu Marriage Act and then register your marriage under the said act in Meerut.

You can talk to a lawyer from Lead India Law. At Lead India Law, you can get free legal advice online and ask questions to experts online for free.

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Court Marriage Lawyers in Meerut, Court Marriage Lawyers in Gurgaon, Court Marriage Process in Ghaziabad

[jagadeeshpenukonda-blog]

Disadvantages of joint hindu family business - Joint Hindu Family

Disadvantages of joint hindu family business – Joint Hindu Family

Disadvantages of joint hindu family business Disadvantages of Joint Hindu Family Business:

Limited resources: Joint Hindu Family business has generally limited financialand managerial resource. Therefore, it cannot undertake big and risky business.

 Lack of motivation: There is always a lack of motivation among the members towork hard. It is because the benefit of hard work does not go entirely…

[tlegal]

MINORS’ RIGHT TO OBJECT TO SALE OF THEIR SHARE IN JOINT FAMILY PROPERTY

1.1     This article examines the right of a minor to (a) object to sale of his/her share in the joint family property, and (b) get the sale made in favour of a third party purchaser declared void.                              

Relevant Provisions Of Law:

2.1     Given below is a brief summary of the relevant provisions of the Law which govern matters relating to (a) joint Hindu family, and (b) joint Hindu family property:

(a)     Schools of Law:

The laws governing the Hindus, and their right to property are as follows:

Mitakshara Law; and

Dayabhaga Law.

The Mitakshara Law applies to the whole of India, except Bengal and Assam, where the Dayabhaga Law applies[1].

(b)     Joint Hindu Family:

Pursuant to the amendments brought by the Hindu Succession (Amendment) Act, 2005, a joint Hindu family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters.

 Tatva Legal, Hyderabad has a specialized team of lawyers who, amongst other services, advise on real estate transactions covering various aspects of the transaction such as general real estate transation adviosry, cross border real estate transactions and title due diligence .

[bhiveworkspace]

Stridhan – Estate Of Women

All nations have attained greatness by paying proper respect to women. That country and that nation which do not respect women have never become great, nor will ever be in future 

The social, emotional and financial security of women is the basic foundations of a society. There are different laws in India relating to property, succession, and inheritance with an objective of providing financial security to women. Though various legislation exist to protect the financial freedom of women, yet most women have a lackadaisical attitude to money and other assets. They are quite happy to let the male relatives or acquaintances decide upon their financial security. Such attitude of women may not matter much during the period of good times but lead to a lot of quandaries in troubled times. Stridhan is a traditional practice that was primarily meant to provide women with some level of economic security in adverse situations like divorce, widowhood, etc.  The word ‘’Stridhan’ has been derived from the words ‘Stri’ meaning a woman and the word ‘dhana’ means ‘wealth’. Stridhan is defined as that portion of a woman’s wealth over which she alone has the power to sell, gift, mortgage, lease or exchange — whole or in parts. The old school of Hindu Law, existing for more than thousand years, such as Dayabhaga and Mitakshara recognizes the right of women to hold and dispose of property.

Address: 28/A 3rd, Main Road, AECS Layout, RMS Colony, Sanjaynagar, Bangalore-560094

Call Us: 080-47096394

E-mail: service@elderswealth.com

[amitsinhavidhi]

PROPERTY PARTITION IN INDIA - LAWS AND TRADITION

PROPERTY PARTITION IN INDIA- LAWS AND TRADITION

Partition of a property means bringing the joint status to an end. On Partition the joint family ceases to be joint, and nuclear families or different joint families come into existence.

Under the Dayabhaga school, when coparceners Partition, it means the division of property is done in accordance with the specific shares of the coparceners since the Dayabhaga coparceners have ascertained and specified shares.

Whereas under the Mitakshara school, Partition of property does not necessarily mean division of property into specific shares, it also means division of status or severance of status or interest. It is because the interests of the Mitakshara coparceners is unspecified. Thus, under the Mitakshara school, partition means two things:

1. Severance of status or interest

2. Actual division of property in accordance with the shares so specified. It is also known as partition by metes and bounds.

DIFFERENT SCHOOLS OF LAW OF PROPERTY AND PARTITION.

“Dayabhaga” is a term derived from a text written by Jimutavahana. On the other hand, “Mitakshara” is a term derived from the name of a commentary written by Vijnaneswara, on the Yajnavalkya Smriti. These two Schools govern the Law of Succession of the Hindu Undivided Family [HUF] under Indian Law. The Dayabhaga School of law is observed only in Bengal and Assam. Whereas Mitakshara School of Law is observed in all the other parts of India. The Mitakshara School of Law is further divided into the following :

1. Benares,

2. Mithila,

3. Maharashtra and

4. Dravida

The differences between the Dayabhaga and the Mitakshara Schools of Law may be categorized under the following: -

JOINT FAMILY – According to the Mitakshara Law School a joint family refers only to the male member of a family and extends to include the following :

1. Son,

2. Grandson and

3. Great-grandson.

They collectively have co-ownership/Coparcenary in the Joint Family. Thus, a son by birth acquires an interest in the ancestral property of the joint family. Under the Dayabhaga School of Law the son has no automatic ownership right by birth but he acquires the same after the demise of his father.

In the Mitakshara School the father’s power over the property is qualified by the equal rights by birth enjoyed by the following:

1. A son,

2. A grandson and

3. A great grand-son

An adult son has the right to demand his partition during his father’s lifetime or during the lifetime of his three immediate ancestors. He has a say in the disposition of the family property and can oppose any unauthorized disposition of ancestral or family property. This is not possible under the Dayabhaga School of Law as the father has centralized and full power over the family property till his death.

COPARCENARY/CO-OWNERSHIP:- Under the Mitakshara School of Law, all the members of such Joint family enjoy coparcenary rights during the lifetime of the father. Under Dayabhaga School of Law when the father is alive the sons do not have any coparcenary rights but acquire it on the death of the father. In the former School of Law, the Coparcener’s share is not defined and cannot be disposed. In the latter the share of each Coparcener is defined and can be disposed.

SUBJECT MATTER OF PARTITION

As a general rule, the entire joint family property is and the separate property of the coparceners is not, subject to partition. A plaintiff seeking partition must prove the existence of a joint family. In the case where existence of a joint family is not disputed, every coparcener is entitled to equal share. However, there may be certain species of joint family property which are by their very nature is not capable of division, then such properties cannot be divided.

In respect of those properties, three methods of adjustments are available:

1. Some of these properties may be enjoyed by coparceners jointly or in turns.

2. Some of these properties may be allotted to the share of coparcener and its value adjusted with the other property allotted to other coparceners.

3. Some of these properties may be sold and the sale proceeds distributed among the coparceners.

However, before the division of property can take place, the Shastrakars have ordained that out of the joint family properties, provisions should be made for certain liabilities of the family. These liabilities fall under the following heads:

1. DEBTS - A provision for the payment of outstanding debts binding on the joint family should be made. No provision is to be made for the individual debts of the

coparceners.

2. MAINTENANCE - There are certain members of the joint family who do not take a share but have a right to be maintained out of the joint family funds. A provision

is to be made for their maintenance.

3. MARRIAGE EXPENSES OF THE DAUGHTERS -  When the coparcenary consists of father and sons, a provision should be made for the marriage expenses of

the daughters of the father.

4. PERFORMCE OF CERTAIN CEREMONIES AND RITES - If the Partition takes place among the brothers, a provision has to be made for the funeral expenses of

their mother.

PERSONS WHO ARE ENTITLED TO A SHARE ON PARTITION.

After the amendment act of 2005, a daughter since would be a coparcener, shall have a right to ask for Partition. As a general rule, both under Mitakshara and the Dayabhaga schools, every coparcener has a right to Partition and every coparcener is entitled to a share on Partition. Apart from the coparceners, no one else has a right to Partition. No female except the daughter has a right to Partition but if Partition takes place, there are certain females who are entitled to a share. These females are: father’s wife, mother and grandmother.

FATHER- The father has not merely a right to partition between himself and his sons but he also has the right to effect partition among the sons inter se. This seems

to be the last survival of father’s absolute powers. The Mitakshara expressly confers this power on the father in respect of not only father’s separate property but also

in respect of joint family property.

SON, GRAND SON AND THE GREAT GRAND SON - Under the Dayabhaga School, there is no coparcenary consisting of the father and his lineal male descendants

and therefore sons, grandsons or great grandsons have got no right to Partition. On the other hand, under the Mitakshara School, son, son’s son, son’s son’s son has

a right to Partition.

MINOR COPARCENERS - Hindu Law makes no distinction between a major coparcener and a minor coparcener in respect of their rights in the joint family property.

As in other matters so in Partition the rights of the minor coparceners are precisely the same as those of the major coparceners. The minor coparceners have also a

right of Partition. A suit for Partition on behalf of the minor by his next friend or guardian.

MODES OF PARTITION  

A Partition can be made by a definite, unambiguous declaration of intention by any coparcener to separate himself from the family. If this is done, it would amount to division of the status of the property, whatever mode be used.

GIVEN BELOW ARE THE VARIOUS MODES USED IN CASE OF THE PARTITION OF A PROPERTY.

PARTITION BY SUIT - A Partition suit (or partition and contribution suit) is a lawsuit that a person files in order to force the division of real property. It also enables that

person to get contribution from the other owners for expenses of the property if others are not paying their fair share.

In a suit for Partition, the initial burden is on the plaintiff to show that the entire property is a joint family property.

PARTITION BY AGREEMENT - A Partition may be affected between the parties by an agreement. An agreement between the coparceners to hold and enjoy property

in defined shares as separate owners operate as a Partition although actual division of properties might not have taken place. In such a case, the interest of each

coparcener is served though the property remains physically undivided. If such Partition is made through a written agreement, registration is necessary.

ORAL PARTITION - There is a long line of cases holding the view that oral Partition can be validly made. Since partition is not conveyance of property, the transfer of

property act doesn’t apply and there is no other law requiring a partition to be evidenced in writing. It is in the nature of mutual renunciation of rights and thus can be

made orally.

UNILATERAL DECLARATION - The communication of intention is necessary, whatever mode of Partition one may use. If a coparcener separates itself by making a

declaration to the other coparceners, this declaration remains valid.

PARTITION BY ARBITRATION - A Partition may be affected by arbitration. If members of joint family enter into an agreement under which they appoint arbitrators for

dividing the joint family property among themselves, the severance of status takes place from the date of the agreement.

PARTITION BY CONDUCT - The severance of status may also take place by conduct. The conduct like a declaration of intention, may be unequivocal, explicit and

definite. From what conduct severance of status may be deduced will vary from case to case. There can be numerous instances of conduct from which inference of

severance can be drawn.

AUTOMATIC SEVERANCE OF STATUS - Conversion of a coparcener to a Non-Hindu religion (i.e. Islam or Christian etc.) operates as an automatic severance of

status of that member from others but it does not amount to severance of status among the other members inter se. From the date of conversion, he ceases to be a

coparcener and therefore loses his right of survivor ship. He is entitled to receive a share in the joint family property as it stood at the date of conversion. Exactly, the

same result follows if a coparcener marries a Non-Hindu under the Special Marriage act, 1954.

REGISTRATION OF PARTITION DEED

It is a well-established proposition of Hindu law and when Partition is affected by a deed of immovable property worth Rs 100 or more, registration is compulsory.  Content Reference from Legal Blog

[juudgeblog]

Partition under Hindu law

This article is written by Saloni Sharma, here she discusses the partition under Hindu Law.

Introduction

Before the Hindu law was codified with the Hindu Succession Act of 1956, the ancient Schools of Hindu laws are believed to be of two types-

The Mitakshara School- derived from the name of a commentary written by Vijnaneswara, on the Yajnavalkya Smriti.

The Dayabhaga School- derived from a similarly named text written by Jimutavahana.

The Dayabhaga School of law is observed in Bengal and Assam. In all other parts of India, the Mitakshara School of law is observed. The Dayabhaga and The Mitakshara are the two schools of law that govern the law of succession of the Hindu Undivided Family under Indian Law.

Under the mitakshara school, partition means- Severance of status or interest and actual division of property in accordance with the shares by metes and bounds.

click above

Under Dayabhaga law, partition means- only division of property by metes and bounds.

The subject matter of Partition

The joint family property is the subject to partition. The individual properties of coparceners in not subject to partition. If a joint family is in possession of a property held by it as the permanent lease, such property is also subject to partition among the coparceners. There are certain properties which are not available for partition like the staircase, cooked food, utensils, garden etc. because of their indivisible nature. Whereas, certain things which are divisible by nature or subject to adjustments among the coparceners, 3 methods of adjustments among the coparceners are available-

Property can be enjoyed by coparceners jointly or in turns.

One of the coparceners may keep the property and the value of it may be divided among other coparceners as compensation.

Or the property may be sold and the proceeds from the same may be distributed among the coparceners.

Section 2 of the Partition Act, 1893 if in case of a suit for the partition where the division of property cannot be conveniently made, the court may direct that such a property may be sold and proceeds to be divided among the coparceners if it benefits all.

Liabilities attached to the property

Before the division of a joint family property at the time of partition, provisions should be made for the following liabilities attached to the property:

Debts- provisions for outstanding debts of father or the karta taken on behalf, or for the purpose of the joint family should be made.

Maintenance- there are some members of the hindu joint family who are not coparceners but entitled to be maintained out of the joint family property, they can be-

Disqualified coparceners and their immediate dependents

Mother, step-mother, grandmother and other females entitled to be maintained by the joint family property

Unmarried sisters

Widowed daughter of a deceased coparcener

Marriage expenses of daughters- in case of the family which consists of father and sons as coparceners, provisions should be made for their unmarried daughter’s marriage. In case of a family consisting of brothers as coparcenary, provisions should be made for the marriage of their unmarried sisters before partition.

Performance of certain ceremonies and rites- provisions should be made for the essential ceremonial expenses.

Persons who have a right to partition and share

Both under mitakshara and dayabhaga school, every coparcener has a right to partition and is entitled to share.

A minor coparcener can also ask for partition.

Every coparcener has a right to partition except in case of

Unqualified coparcener

Under Bombay school, sons cannot ask for partition against their father if the later is attached with his own father or collateral.

The following people can claim partition and are entitled to share in the partition-

Father- under mitakshara school, the father not only has a right to partition but also has the power to effect partition among the sons. The father can also impose partial partition among the sons but he must act bona fide and not unfair to anyone. A suit to re-open, the partition can take place in case of partiality or mala fide partition by the father.

Son, grandson, great-grandson -under mitakshara school, son, grandson and great grandson have a right to seek partition  

Son born after partition- According to Vishnu and Yajnavalkya the partition should be reopened to give the share to the son born after partition. However, Gautama, Manu, Nerada held a different view about the same.

Before the amendment of 2005, females couldn’t be the coparceners but some females like the mother, father’s wife and grandmother had the right to share at the time of partition.

Position of the minor coparcener

There is no distinction between a minor and a major coparcener under Hindu law with respect to their right in the joint family property. A suit for partition can be filed on behalf of the minor, by his/her guardian or next friend.

An unfair partition can be reopened by the minor on attaining majority.

Alienee

A purchaser of coparcener’s interest in a court sale or private sale where coparcener has the power to give his interest in the property as consideration. Such a purchaser has a right to demand partition as he steps into the shoes of the coparcener.

Absent coparcener

If a coparcener is absent at the time of partition, it is implied that his share is to be kept separately. In case no share has been kept aside for him, he is entitled to get the partition reopened.

Partial partition

A partition may be called partial

As to property- in case when the joint Hindu family owns more than one property in different places, and one of the properties is to be sold or divided, such partition is partial partition as to property.

As to persons- in case where only one of the members of the joint hindu family wants to separate from the rest, such partition is partial partition as to persons.

Modes of Partition  

Partition i.e. severance of joint status of a family can be established in the following ways-

expression of intention- one member of the joint family can express his intention to partition, even though no actual partition takes place.

by Notice

by Will

by agreement- such severance of status takes place from the date of signing of the agreement.

by arbitration- if the members of the joint hindu family come into an agreement where they appoint arbitrators for themselves to divide the property, the partition comes into existence from the day the agreement was signed.

by father- the karta of the family if expresses his wish to seek partition, such partition comes into existence.

by suit- when a coparcener files a suit for partition, it amounts to an unequivocal intimation of an intention to sever and consequently, severance of status comes into existence from the date the suit was instituted.

Conversion to another Religion- this leads to automatic severance of status, and it exists from the day of such conversion. However, he is entitled to receive a share from the property.

Marriage under special marriage act- if a coparcener marries according to the provisions of special marriage act, 1954 severance of status occurs automatically from the date of marriage and the coparcener is entitled to receive his/her share from the property.

Reopening of partition

In a coparcenary, the coparceners hold the property as one common unit, partition means the fixing of the shares of each coparcener.the partition can be classified into two types-

De jure Partition

This partition brings merely 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. However actual partition does not take place.

De facto Partition

This is a partition by metes and bounds. 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. Here the actual division of shares takes place.

When can partition be reopened

Generally, partition once made is irrevocable, however, the same can be reopened in case of following circumstances –

Mistake- a suit can be filed, if any of the joint family properties have been left out of partition by mistake they can be subjected to partition later.

Fraud-The partition can be reopened if any of the coparceners had done any fraudulent or mala fide act. For example, if any of the property has not been made subject to partition fraudulently.

Disqualified Coparcener-Due to some reasons, the disqualified coparcener might be underprivileged from his share of the property at the time of partition. In such a situation, he could get the partition removed after the disqualification is removed.

Son in Womb-If a son is in the Womb at the time of partition, and no share was allotted to him, at the time of partition then later it can be reopened.

Adopted Son-The adopted son is permitted to re-open the partition in case if the widow of a coparcener adopted a son after the partition. Such adoption under the Hindu Adoptions and Maintenance Act 1956 related back to the date of death of deceased husband & such adopted son can reopen partition.

Absent Coparcener-Coparcener who is not present at the time of partition has a right to reopen the partition if he is absent at the time of partition and no share is allotted to him.

Minor Coparcener-If a minor coparcener can claim for reopening the partition if he is not alloted his share at the time of partition, after attaining majority. If at the time of partition his interests are not be properly safeguarded then he can reopen the partition.

A partition can be reopened at the request of minor coparcener even if there is no fraud, misrepresen­tation or any undue influence.

Conclusion

Partition is a concept under Hindu law and is regulated by mainly two schools of thought, i.e. Mitakshara and Dayabhaga. Partition amongst a joint Hindu family means severance of status of jointness and unity of possession among the members of the family. The partition can take place by various methods like via agreement, arbitration, notice, will etc. Under Mitakshara school, the partition may take place by stripes or by branch, however under Dayabhaga school, partition takes place only after the death of the karta, the dayabhaga school follows no concept like coparcenary.

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[indiantiquest]

#Repost @womenfromhistory • • • • • ~ The Indian custom, the Suttee ~ Suttee, (Sanskrit : sati “good woman” or “chaste wife”), was the Indian custom of a wife immolating herself on the funeral pyre of her dead husband. Although never widely practiced, suttee was the ideal of womanly devotion held by certain Brahman and royal castes. It is linked to the myth of the Hindu goddess Sati, who burned herself to death in a fire that she created through her Yogic powers after her father insulted her husband, Shiva. The first explicit reference to the practice in Sanskrit appears in the great epic Mahabharata. It is also mentioned by Diodorus Siculus, 1st century BCE, in his account of the Punjab in the 4th century BCE. Numerous suttee stones are found all over India, the earliest dated 510 CE. Women sometimes suffered immolation before their husbands’ expected death in battle, in which case the burning was called jauhar. In the Muslim period (12th–16th century), the Rajputs practiced jauhar, most notably at Chitorgarh, to save women from rape, at the hands of conquering enemies. The hardships encountered by widows in traditional Hindu society may have contributed to the spread of suttee. The larger incidence of suttee among the Brahmans of Bengal was indirectly due to the Dayabhaga system of law (c. 1100), which prevailed in Bengal and which gave inheritance to widows; such women were encouraged to committ suttee in order to make their inheritance available. In the 16th century, steps to prohibit suttee were taken by the Mughal ruler Humayun. Suttee became a central issue under the British Raj, which first tolerated it, then inadvertently legalized and in 1829, outlawed it—using the condemnation as one of its justifications for continuing British rule of India. Suttee was sometimes committed voluntarily, but cases of escape and rescue are known. #suttee #sati #india #sacrifice #history #art #artlovers #arthistory #historyofart #painting #engraving #woodcut #strongwomen #womenfromhistory https://www.instagram.com/indiantiquest/p/Bu8Oyf_nZt7/?utm_source=ig_tumblr_share&igshid=81mof38fn95j

[we-legodesk-lawfirm-things]

Intestate Succession and Inheritance Under Hindu Law

 Introduction

 The Hindu Succession Act, 1956 is an act enacted by the parliament, keeping in view the resolution of disputes relating to the succession of the property after the death of a Hindu. Its preamble draws emphasis on dispute resolution for succession both with and without a will or testament. There are two concepts to this act. One being that of Intestate or non-testamentary succession which means inheritance of the property of a deceased without a will, and testamentary succession meaning in the presence of a will. This Act applies to any person who is a Hindu by religion including those who are a Virashaiva, Lingayat, or a follower of Brahmo, Prarthna or Arya Samaj. The act also extends to the Sikhs and Buddhists not having applicability to any Muslim, Christian, Parsi or Jew as per Chapter 1 Section 2 of the Act.  The word 'Inheritance’ is synonymous to ‘succession’ as inheritance is a loosely used term which is legally recognized and defined as ‘succession.’ The other term relevant to this Act is ‘survivorship’ which reflects another type of interest towards the property. We shall look at the contrast between inheritance through intestate succession and inheritance by way of survivorship.  Read Also: Succession Rights of Daughter

The contrast 

Inheritance by way of survivorship (before amendment):  The Hindu Succession Act, 1956, dealt with three types of inheritance. These are:  The separate or own property of a male Hindu from the Mitakshara family The separate or coparcener property of male Hindu from Dayabhaga family The undivided interest of a Mitakshara Coparcener in a Joint Hindu family The Mitakshara School recognized two types of devolution of property. These are:  Devolution by way of Succession  Devolution by way of Survivorship  The criterion followed in the Mitakshara system, before the commencement of the Hindu Succession (Amendment) Act, 2005 to determine the mode of devolution of the property was to check two things : Whether the male Hindu had an undivided interest in the coparcenary property and; Whether he was a member of the coparcenary.  If he had undivided ownership of the coparcenary property, it would be devolved to other coparcener members by way of ‘survivorship.’ Coparcenary property is nothing but the ancestral property as according to Section 6 of the 1956 Act. The exception to this section is that if a mitakshara coparcener dies leaving a female relative as per Class 1 of the Schedule or a male relative in the same class claiming the property from the female relative, the interest of the mitakshara coparcenary property shall devolve by testamentary or intestate succession and not by survivorship. The concept can be understood more by referring to the case Shyama Devi v. Manju Shukla 1994 The Act also consisted of the separate property of the coparceners, and Property acquired jointly by the members of the family and, property acquired by the members of the joint family by the way if the inheritance of ‘ancestral property.’ Note that:  The coparcenary property was devolved by survivorship and not succession  It is a property in which the male coparcener’s relatives of up to three degrees acquired interest by birth.   Illustrations: Illustration 1: Suppose that A had a property inherited from his father. He has two sons and one daughter: B, C, and D, respectively. In the mitakshara system, B and C along with A would get 1/3rd of the property by way of partition.  Illustration 2: There are two brother X and Y. X dies, leaving behind his two daughters and a widow. The rule of survivorship in Mitakshara system will devolve the undivided coparcenary property to Y. Nothing will be obtained by X’s family.    The rule of succession as per the Mitakshara system for the self-acquired property of a Hindu male can be illustrated as :  Any self-acquired property in a Mitakshara system is inherited through succession and not survivorship, i.e. entitlement by birth.  In case if the deceased is a sole surviving member of the coparcenary, the whole of his property is devolved on his heirs through succession.    Inheritance by way of Intestate succession (After amendment):  It can be concluded that before the amendment, the property was inherited by a Hindu female through intestate succession when the coparcener member died leaving behind a coparcenary property (with an assumption that the partition was made prior to his death). Otherwise, it was devolved onto the male heirs by survivorship; indicating no absolute ownership over the property by a female heir.  The Hindu Succession (Amendment) Act came into force in the year 2005 amending Section 4, 6, 23, 24 and 30 of the 1956 Act. The primary objective of this amendment was to bring laws that give daughters and wives equal rights with the male coparceners, including subjecting them to the same liabilities and limitations. This was not the scenario in the past where although full ownership of property by the female members was sought after, the only property the woman was really entitled to be the 'stridhan.'  The two major amendments made were: Where it was proposed to remove gender discrimination under section 6. Section 23 (omitted) as it disentitled female members to ask for partition in a dwelling house, wholly owned by the joint Hindu family unless the male inheritors agreed to do so. Furthermore: Section 6: Gave equal rights to the female member of the family in the same way as was given to the male members in the joint Hindu family. Such right is now also recognized from the time of the female's birth. It recognizes the daughter of the Hindu coparcener as a legal heir with respect to the deceased Hindu coparcener. Hence, giving her the title of a female coparcener. The concept of survivorship was abolished. Section 24: Omitted as it disentitled widows from obtaining their share in the coparcenary property. Section 30: Female heir's rights and obligations specified as per the new amendment for testamentary succession. Read Also: Know About Family Law In India

Conclusion :

The amendment in 2005 shows how the fundamental rights of every citizen in the country were upheld. It was necessary to not discriminate on the basis of sex and provide equal representation to the female members of the family. This leads us to believe the progressive attitude of the legislature and instills faith in the judicial mechanisms of the country. In addition, awareness through education needs to be spread amongst people in order to abolish the disparity in the least developed cities/districts of the country. Read the full article

[postolo]

Bom HC | Sister’s right in ancestral property upheld by virtue of Hindu Women’s Right to Property Act and Hindu Succession Act

Bombay High Court: Sandeep K. Shinde, J., upheld the order of the first Appellate Court whereby it reversed the trial court’s decision and held that the sister (respondent herein) was entitled to a right in the ancestral property along with her brother (appellant herein).

One Waman Bala died in 1944 leaving behind the parties herein and their mother. The character of the suit property was ancestral. After Waman’s death, the name of the brother was alone entered into the records of rights of the suit property. Their mother left the house in 1972 in a state of insanity and her whereabouts were not known. The sister, apprehending alienation of the property by the brother, filed a suit claiming her rights in the same. The suit was defended by the brother and the trial court dismissed the suit. The sister challenged the said decision and the first Appellate Court reversed the trial court’s decision. Aggrieved thereby, the brother filed the present appeal.

While discussing the law in the subject, the High Court referred to Section 3 (devolution of property) of the Hindu Women’s Right of Property Act, 1937. As per Section 3(2) and (3), if a Hindu governed by any school of law other than Dayabhaga dies, his right in Hindu Joint family property devolves on his wife with limited interest which is known as the Hindu Woman’s Estate. Also as per sub-section (1) of Section 14 (property of a female Hindu to be her absolute property) of the Hindu Succession Act, 1956 a Hindu female is a full owner of any property possessed by her, and this includes all modes of acquisition including inheritance or device [Explanation to Section 14(1)].

Thus, observed the Court: “the limited interest or Hindu Woman’s Estate [acquired under Section 3 of the Hindu Women’s Right Property Act] shall be held by the widow as full owner in terms of provisions of Section 14(1) of Hindu Succession Act, 1956″.

In the case at hand, the Court stated: “it is not in dispute that mother of the plaintiff and the defendant had died after 1956 and, therefore, her interest in the property would devolve as per the scheme in terms of Section 15 of the Hindu Succession Act, 1956. Thus, her property will devolve upon her sons, daughters and husband.”

On the holistic view of the matter, the Court found no error with the order of the first Appellate Court. Therefore, the present appeal was dismissed. [Jagannath Waman Undre v. Yamunabai Sitaram Kadam, Second Appeal No. 126 of 2018, decided on 01-04-2019]

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[jagadeeshpenukonda-blog]

LIMITATIONS OF JOINT HINDU FAMILY BUSINESS - Joint Hindu Family

LIMITATIONS OF JOINT HINDU FAMILY BUSINESS – Joint Hindu Family

LIMITATIONS OF JOINT HINDU FAMILY BUSINESS

Unlimited liability : The Karta is personally liable for all business For payment of business debts, his personal property can be sold if the business assets are insufficient.

 Limited access to capital : The Karta has limited scope for raising Her/his own funds may be insufficient for expansion. This reduces the scope for business growth.

  Karta too…

[jagadeeshpenukonda-blog]

MERIT OF JOINT HINDU FAMILY BUSINESS - Joint Hindu Family

MERIT OF JOINT HINDU FAMILY BUSINESS – Joint Hindu Family

MERIT OF JOINT HINDU FAMILY BUSINESS

Economic security and status to the members : The Joint Hindu Family business provides members a sense of security and belonging because of the financial stake they possess in it. It also gives them status in society while dealing with others.

  Continuity of business : The business has a continuity. It is not affected by death or lunacy of members, including…

[jagadeeshpenukonda-blog]

FEATURES OF THE JOINT HINDU FAMILY BUSINESS - Joint Hindu Family

FEATURES OF THE JOINT HINDU FAMILY BUSINESS – Joint Hindu Family

FEATURES OF THE JOINT HINDU FAMILY BUSINESS

Membership by birth : Membership of a Joint Hindu family business is automatic by birth of a male child. It is not created by an agreement among family members.

 Management : The management vests in the Karta, the eldest member of the family. However, the Karta may associate other members of the HUF to assist him.

Liability : The Kartahas unlimited…

[jagadeeshpenukonda-blog]

MEANING OF JOINT HINDU FAMILY BUSINESS

MEANING OF JOINT HINDU FAMILY BUSINESS

MEANING OF JOINT HINDU FAMILY BUSINESS

The Joint Hindu family business refers to a business which is owned by the members of a joint Hindu family.

  It is also known as Hindu Undivided Family Business.

  This form of organisation exists under Hindu law and is governed by the law of succession.

  The joint Hindu family form is a form of business organisation in which the family possesses some…

[loyallogic]

The concept of notional partition

This article is written by Harshit Bhimrajka, from the Rajiv Gandhi National University of Law, Patiala. This is an exhaustive article which talks about the concept of notional partition, the amendment in the Hindu Succession Act, 1956, and the landmark judgments regarding Section 6 of the Act (notional partition).

Introduction

The concept of a Hindu joint family is unique to Hindus and it is legally recognized. There are two schools of law that govern the law of succession of the Hindu Undivided Family under Indian law- Dayabhaga and Mitakshara. To understand the concept of notional partition, primarily, one has to understand the concept of both the schools of law. 

Mitakshara law school only refers to the male member of the joint family and is extended to son, grandson, and great-grandson of the family. A son by birth acquires an interest in the ownership of the ancestral property of the joint family. All male members of the joint family collectively have coparcenary (co-ownership) in the ancestral property. After the 2005 Amendment of the Hindu Succession Act, a female can legally be a coparcener and is entitled to the partition. In this system, the property cannot be shared physically but the share can be ascertained in numerical terms. This system is more conservative. This exists throughout India except in the State of Bengal and Assam. 

Dayabagha law school is not specific to any gender. After the demise of the father, the right of property prevails to the children but not automatically after birth like in the Mitakshara system. The father has full and uncontrolled power over the ancestral property until his death. This system is majorly observed in Bengal and Assam. In this system, the property is physically separated into specific portions and is assigned to each coparcener. This system is more liberal than Mitakshara. In this world of economic compulsion and growth of the individualism, the Dayabhaga system is more likely to last than the Mitakshara system.

Notional Partition

Meaning

Before the amendment in the Hindu Succession Act, 1956, female heirs were not given a share in the ancestral property. There was a need for radical reforms in this Mitakshara Law so that everyone gets equal share who has an interest in the property if the coparcener died intestate(without any will). This concept refers to that when one of the coparceners died, in respect of his undivided interest in the coparcenary property, there should be an equal distribution of that share between his male heirs and female heirs, particularly between his daughter and son. 

For example, A had a family property and he had only one son B, who died intestate. B had one daughter and one son. The family property was undivided when B died. Now B’s children will get an equal share from the share of B i.e. half in the family property. But before the 2005 amendment in the Hindu Succession Act, female heirs had no right to the share in the family property.

Recent developments

Section 6 of the Hindu Succession Act, 1956 provided the devolution of interest in a coparcenary or co-ownership property of a person who died intestate. It means that when the person dies intestate and if he has any coparcenary property then it will devolve accordingly to his male sons, grandsons and great-grandson (not more than three degrees of generation). This is defined as survivorship when the undivided interest in the coparcenary property is divided equally among the male heirs of the deceased person in terms of survivorship. No right was given to females in this Act. Even the wife was not also given any entitlement in the coparcenary property as she was not considered as a direct bloodline of the deceased person. In simple terms, male heirs were regarded as coparceners but female heirs (including daughter and wife) were not.

In 2005, the Indian legislature made some amendments to the Hindu Succession Act, 1985. We will specifically talk about Section 6 of the Hindu Succession (Amendment) Act, 2005. It iterated that the devolution of the property will be according to the survivorship if there are only male heirs in the family and no female heirs. If the family has both male and female heirs, then the concept of survivorship will not apply, the devolution will occur to the heirs prescribed by the law.

Some of the major changes introduced by the amendment in the Act are as follows:

All the heirs will have equal rights irrespective of gender and they will be considered coparceners by birth.

The daughter of a deceased person has the same entitlement on coparcenary property as the right of a son.

There is no difference when it comes to the liabilities, just as rights are equal, so also, the liabilities. In Mitakshara if there is any coparcenary’s liability then it will be applicable to both son and daughter equally.

Similarly, female’s three-generation such as daughters, granddaughters, and great-granddaughters are also entitled as in the case of male heirs.

The responsibility of debt repayment by the male heirs and female heirs for their fathers, grandfathers, and great-grandfathers. Debt repayment does not transfer to the descendants and it ends when the debtor dies. 

These Amendments are only applicable to a Hindu whose property interest lies to a joint Hindu family under Mitakshara law and who dies either testamentary or intestate after the commencement of the Amendment Act.

The female heirs who are eligible to inherit are classified as follows:

The daughter(s),

The daughter’s-daughter’s son(s),

The daughter’s-daughter’s daughter(s),

The daughter’s son’s daughter(s), and

The son’s daughter’s son(s) (the predeceased great-granddaughter which is only applicable if the male heir or the grand is predeceased).

Landmark judgments

Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo & Ors. (1981) 

In this case, Lalu Pratap, the plaintiff, filed a complaint that the estate of the deceased person be governed by the rule of lineal primogeniture, whereby the estate of the deceased held jointly is divided among the male members even though there are female members in the family. The plaintiff believed that the rule of survivorship or the rule of lineal primogeniture is the applicable law, not the Succession Act as the Act came into force after the death of the deceased.

The Honourable Court held that the rule of survivorship or the rule of lineal primogeniture is not applicable since the Act was already in force. It was also observed that the old Act is retrospective in nature.

Yogendra & Ors v. Leelamma N. & Ors. (2009)

In this case, Yogendra’s first marriage was carried out legally in the court and the marriage was registered under Section 5 of the Hindu Marriage Act, 1955. One of the provisions in the said Act is that a spouse cannot marry another spouse if the first one is still alive or the divorce happened. In other words, it prohibits bigamy or polygamy. Yogendra had three daughters- Leelamma, Kamalamma, and Parvathamma with his first wife. Subsequently, Yogendra got married to another woman while the first one was still alive. The second marriage was illegal according to the Hindu Marriage Act, 1955. Thereafter, the second wife bore him a daughter namely Dinesh.

The bone of contention was whether the daughter of the second wife Dinesh was entitled to the property of Yogendra as a coparcener under Section 6 of the Hindu Succession Act or under Section 8 of the Amended Act.

The Court held that the Hindu Marriage Act, 1955 declared the second marriage as illegal and also null and void. It was also held that Dinesh will not be considered as a coparcener but as an illegitimate child of Yogendra. She cannot inherit any property as coparcener under Hindu Succession Act but can inherit the property as an illegitimate child under the Amended Act.

Prakash v. Phulavati (2015)

This is a landmark case in which the interpretation of the law was done by the judges of the Supreme Court. The deceased person died before the amended Act i.e before 2005 but after some years, his daughter filed a complaint to get an equal share in the property of the father as a coparcener under the Act. The court interpreted the legislation and held that the Act was meant to be prospective in nature, not retrospective, therefore, the person who died before 9th September 2005 will not be covered under this amended Act and it will only apply to the person who died after the Act came into force. Thus, the rule of survivorship will apply in this case and the daughter will not have any share in the estate of the father.

Danamma v. Amar (2018)

In this landmark case, the Supreme Court took a different opinion as it took in the case of Prakash v. Phulavati (2015). The father (propositus), male coparcener, died in the year 2001 and subsequently next year, his sons filed suit for partition. The daughters contested the suit and the sons claimed that the daughters of the deceased father are not entitled to any share in the estate as the father died before the commencement of the amended Act. The claim of the daughters was rejected by the trial court as well as by the high court on the ground that they were born before the commencement of the Hindu Succession Act, 1956. On appeal, the Supreme Court held in favour of the daughters that they have entitled to the share in the estate. It was held that the preliminary decree is a pertinent factor in the devolution and partition of the estate. The Supreme Court relied on the judgment in Ganduri Koteshwaramma & Anr v. Chakiri Yanadi & Anr. (2011) case in which the principle that partition is not complete with the passing of preliminary decree until the final decree is passed was laid.

The legal scholars found both the judgments in the Prakash & Ors. V. Phulavati & Ors. and the Danamma Suman Surpur & Anr. v. Amar & other cases are debatable and opposite. According to the law interpreted in the case of Phulavati, the daughters in the case of Danamma were not entitled to any share in the property, but the Supreme Court took a different position by implying that the commencement date is no longer applicable to birth or conception but relied on the principle of preliminary and final decree laid in the wholly different case i.e. Ganduri Koteshwaramma & Anr. v. Chakri Yanadi & Anr. because of which the whole judgment favoured the daughters and they did get entitlement in the share of the father. It is now difficult to interpret such cases as the judgments created confusion for all the lower courts.

But the decision in the Prakash & Ors. v. Phulavati & Ors case should be the dictum on which one can rely and not on the decision given in the Danamma Suman Surpur & Anr. v. Amar & others. The reason is that the decision in the latter case makes no practical sense as it only makes mention of conception, birth and death. But in the former case, it was the pure interpretation of the legislation made by the legislators when drafting the Act and they didn’t envisage any passage of decree principle in the law.

Conclusion

Society has gradually started removing the element of patriarchy. But prior to the development of the equality rights in the world, the society was completely patriarchal. The male heir was given the preference and was accorded with everything: the title, succession of his parent’s wealth and estate, devolution, etc. Now in recent times, women are also accorded with the same rights as that of men. 

The Constitution of various countries gives this right of equality to the people irrespective of gender. If we talk about the Hindu Succession Act, 1956, no rights were given to the female heirs but the Amended Act of 2005 speaks volumes of gender equality and inheritance. The main goal of this Act is to ensure that both, male and female heirs, are entitled to the title of the coparceners in the family’s estate. 

Though the Supreme Court decisions have created confusion in the interpretation, the basic aim and goal of equality in inheritance can be achieved by this Act and the correction of the said confusion will soon be done. The step taken by this amended Act of eliminating gender inequality is much appreciable, but the social perception in Indian society on gender equality is still lacking and that is to be achieved.

“Gender equality is a human fight, not a female fight.” 

 -Frieda Pinto

References

https://www.livemint.com/Money/b6jqj4AbIIG72OLa7dg8lK/Notional-partition-applies-to-share-in-joint-Hindu-property.html

https://indiankanoon.org/search/?formInput=notional%20partition

https://www.lawweb.in/2017/02/how-concept-of-notional-partition.html 

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