MAINTENANCE
The right of maintenance arises from the concept of in undivided family. The head of such a family is bound to maintain its member. Their wives and their children. All members of a joint family whatever be their status and whatever be their age are entitled to maintenance.
It is a right to get the necessities which are reasonable. Section 3 of the Hindu adoptions and maintenance act 1956 defines maintenance. According to it maintenance includes-
(i) In all cases provision for food, clothing, residence, education and medical attendance and treatment.
(ii) In the cases of an unmarried daughter, also the reasonable expenses of and incident to her marriage.
Nature and extent of right of maintenance:
The right of maintenance is a personal right and can not be transferred nor can be attached. The right of maintenance can not be defeated by gift.
Under Hindu law the liability of a Hindu to maintain other arises in some cases from the mere relationship between the parties. Independently of the possession of any property. In other cases it depends altogether on the possession of property. The first liability called personal liability or absolute liability. And the second is limited liability.
Personal or absolute liability:
The obligation of a Hindu to maintain his relations is personal in character and arises from the very existence of the relation between the parties.
A Hindu was under a legal obligation to maintain his-
(i) Wife.
(ii) Minor sons.
(iii) Unmarried daughters, and
(iv) Aged person.
Thus the only persons who one under a personal obligation to maintain others are-
(1) The father, who is bound to maintain his minor sons and unmarried daughter.
(2) The husband who is bound to maintain his wife.
(3) The son who is bound to maintain his aged parents.
It is clear from what has been stated above that a Hindu is not-
(i) Adult sons.
(ii) Grand children.
(iii) His sister.
(iv) His sister in law.
The liability to maintain the above persons may arise from possession of property.
Limited liability: The liability consists of those persons whose claims rest upon property and passing of it on the death of the owner. Limited liability are-
(i) Liability of manager in a joint Hindu family liability dependent on possession of coparcenaries property.
(ii) Liability of heirs – liability, dependent on possession of inherited property.
(iii) Liability of government.
Who are the persons entitled to maintenance under Hindu law?
A Hindu is personally bound to maintain the following persons namely-
(i) His minor sons: Every Hindu is during his life time bound to maintain his minor sons whether legitimate. In Mitakshara family a father has personal obligation to maintain the minor sons. But he is under no such obligation to maintain his adult sons. In dayabhaga family he is not bound to maintain his sons either out of his separate or out of ancestral property.
(ii) His daughter: Every Hindu father is during his lifetime bound to maintain his minor daughter. An unmarried daughter is however entitled to be maintained by her father even after she has attained majority. So a father is bound to maintain his unmarried daughter and on the father death, the daughters are entitled to be maintained out of his estate. On the marriage she is entitled to be maintained by the husband. If a daughter is unable to obtain maintenance from her husband after his death from his family her father is under moral obligation to maintain her.
(iii) Wife: The wife right to maintenance belongs to the law relation to husband and wife. Thus a wife is entitled to be maintained by her husband, whether he passes property or not. The maintenance of a wife by her husband is a matter of personal obligation arising from the very existence of possession by the husband of any property ancestral or self acquired. It is always to be borne in mind that a Hindu wife who leaves her husbands house for purposes of unchastity can not claim to be maintained or to be taken back. But a wife living apart from her husband for no improper purpose may at any time claimed to be maintained.
(iv) Aged person: The liability to maintain ones parent is clear both from shastrie Hindu as also the decided cases. So a person is personally bound to maintain his aged father and mother.
(v) Concubine: No mistress of a Hindu has any right of maintenance unless she was continuously and faithfully mistress until his death.
Maintenance of disqualified heir:
Where a son or other heir is excluded from inheritance by reason of disability he is entitled to Maintenance himself and his family out of the property which he would have inherited but for his disability.
Windows right of Maintenance:
If the husband dies then she will be maintain out of the husband’s estate. But if the husband left no estate then her father-in-law as he is morally bound to maintain. On the death of father-in-law she acquired a legal right to be maintained out of estate.
Example:
(a) A Hindu governed by the Mitakshara law dies leaving a widow and male issue. He leaves self-acquired property. The male issue wills inherited the property subject to the obligation to maintain the widow out of that property.
(b) A and his father F one members of a joint family governed by the Mitakshara law. A dies leaving a widow and F. on A’s death his undivided interest in the coparcenaries property lapse so as to enlarge the interest of F in the property A’s widow is entitled to be maintained by her father law F out of the coparcenary property quoed the interest of A in the property.
(c) A and B are husband and wife respectively A converts to other religion and becomes Muslim. Now B shall have the right to claim Maintenance and separate residence.
(1) Sister: A Hindu is under no personal obligation to maintain his sister, but if he inherits his father’s estate, he is bound to maintain her out of the estate, she being a person whom his father was legally bound to maintain as his daughter, provided that she is unmarried.
(2) Step-mother: A step son is under no personal obligation to maintain his step-mother but if he inherits his father estate he is bound to maintain her of the estate. She is being a person whom his father was legally bound to maintain as his wife.
(3) Mother-in-law: A dies leaving a widow B and a mother C. B is under no personal obligation to maintain her mother-in-law C. but if she inherits property from A she is bound to maintain C, she (C) being a person whom A was legally bound to maintain as his mother.
GIFT/WILL
Gift: ‘gift’ is defined by Hindu lawyers to be the creation of another person proprietary right after the extinction of one’s own proprietary right in the subject matter of the gift. So ‘gift’ consists in relinquishment (without consideration) of one’s own right (in property) and the creation of the right of another and the creation of the right of another mans right is the gift but not otherwise.
So Hindu law divides gift into four classes-
(i) Proper.
(ii) Improper.
(iii) Valid.
(iv) Invalid.
A proper gift consists of the donation of the donors own property, which is not prohibited.
Improper gift one either what can not the donors own or exclusive property or what is forbidden to be given a way.
A valid gift is defined to be what has been made by a person of sound mind and is not liable to resumption.
An invalid gift is defined to be that which is liable to resumption.
** What property may be disposed of by gift?
The following property may be validly being disposed of by gift:
(i) Separate or self-acquired property of a Hindu whether governed by Mitakshara or Dayabhaga law.
(ii) Stridhana i.e. women’s absolute property.
(iii) Importable property, unless prohibited by custom or the term of the tenure.
(iv) Interest of a coparcener under the Dayabhaga law.
(v) The whole of the ancestral property by the father under the Dayabhaga law.
(vi) A small portion of the property inherited by a Hindu widow may be gifted by her daughter or her son-in-law at the time of marriage.
(vii) Movable property inherited by a widow governed by law.
**Gift when complete?
A gift under Hindu law is not complete unless it is accompanied by delivery of possession even though it is made by a registered instrument. A gift under the Hindu law need not be writing.
The rule of Hindu law that delivery of possession is essential to validate a gift is abrogated.
Revocation of gift:
A gift once completed can not be revoked unless it was obtained by fraud or under influence.
Will: a will is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. Katyana says “what a man has promised, in death or in sickness if for religious purpose, must be given, and if he dies without giving it, his son shall doubtless be compelled to deliver it. And again, “after delivering what is due as a friendly gift (promised by the father) let the remainder be divided among the heirs”.
** Person capable of making will:
Every person of sound mind, not being a minor may dispose of his property by will. Under the pure Hindu law a coparcener could not validly bequeath his undivided interest in the joint family property. A minor can not make a will. It is to be noted that according to Hindu law the age of majority is the completion of 15 years.
** What property may be disposed of by will?
A Hindu could dispose of by will, the following property:
According to Mitakshara-
(i) Separate or self-acquired property.
(ii) A sale surviving coparcener may dispose of his property by will.
(iii) Saudajika stridhana, stridhana other than Saudayika but subject to husbands consent.
(iv) All stridhana during widowhood, and
(v) Importable property, unless prohibited by custom or the terms of the gromf.
But no coparcener, not even a father could dispose of by will his undivided coparcenaries interest, even if other coparceners consent to the disposition.
According to Dayabhaga-
The same as under Mitakshara law, with the following addition:-
(i) A coparcener may dispose of his share in the coparceners by will.
(ii) A father may dispose of all his property ancestral or self-acquired.
**Revocation and alteration in will:
A will is liable to be revoked or altered by the maker of it any time when he is competent to dispose of his property by will. But marriage does not revoke a will or codicil of a Hindu nor does the birth of a son subsequent to the execution of the will revoke it when he predeceases the testator.
** Will when void?
A will or any part of a will, the making of which has caused by fraud or coercion or by such importunacy as taken away the free agency of the testator, is void.
** What constitutes a valid will?
Where certain formalities are required by the statute for making a declaration regarding the intention then where those formalities are not complied with the document can not constitute a valid will.
From the definition formulated in section 2(ii) of the succession act, that a will is a declaration which possesses the following essential elements:
(i) It must be legal.
(ii) It must relate to disposition of property.
(iii) It must relate to the testators property or to the property over which he had the disposing power.
(iv) It must dispose of it so as to taken effect from the testators death, and
(v) It must be revocable at the testator’s pleasure.
So the essential characteristics of a will are-
(1) A will takes effect after the death of the test or. So it must be intended to come into effect after the death of the testator.
(2) It must relate to disposition of property. So the essential characteristic of a will is that the disposition contained in if after to take effect after death of the testator.
Will distinguish from gift:
It is to be noted that an early will were really deed of gift or settlement made by Hindu before their death. Although the notion of will is evolved out of gift.
A gift is a transfer of property that is voluntary gratuitous and absolute conferring immediate rights. So a gift is a present interest, relating to existing property and takes effect immediately which a will confers deferred interest and does not take effect until the death of the testator.
So in the case of will distributing the property of the testator to take effect on his death. On the other hand, in the case of a gift the provisions become operative immediately and a transfer in present is intended and comes into effect.
A will is revocable become no interest is intended to pass during the life time of the owner of the property. On the other hand a gift once completed can not be revoked. So in ascertaining whether a document is revocable or not.
So from above discussion it is clear that an instrument can not take effect as a will unless it has reference to the death of the person executing it.
Rights of women in Hindu laws & Stridhan
Personal rights of women in Hindu laws
Hinduism is considered as one of the most ancient religions in the world and that is why it is also called “Sanatan Dhormo”. Like all other religions it embraces all segments of human life including the rights, duties, liabilities of a woman. Though it is hard to find in particular the position of women in the ancient Hindu social system but it is clear from the old writings that with the end of the matriarchal system and introduction of patriarchy, women have become dependent on their male counterparts to a large extent. Since then Hindu women have been deprived of the right to property of their father and/or husband for survival. They remain dependent on parents during their childhood, on husband in youth and on children in old age. Therefore, for the betterment of the condition of Hindu women it is felt that Hindu family laws need to be reformed. Initiatives to such reforms always face opposition from a segment of Hindu community who are rigid in upholding “Sanatan Ain” (traditional customary law) because they are convinced that the laws originating in supposedly divine source cannot undergo a change. But it is noteworthy that our neighboring country India, where the Hindu law actually originated, has already introduced a lot of modifications and alterations in the family law system in order to make it compatible with the changing society.
Situation in Bangladesh
Hindu community is the second largest religious community in Bangladesh. According to 1991 census 11.5 per cent of the population of our country belong to the Hindu Community. Their social and family affairs all are very intensely controlled and influenced by their religious doctrine. In Bangladesh, Dayabhaga school is followed in Hindu Family Law.
Unfortunately the religious element in Hindu Family Law has been greatly exaggerated in our country. Very little has been done towards reformation of Hindu personal law as it is same to Muslim Personal Law in India. Therefore, Hindu women have no right in Bangladesh. They are deprived of their parent's\husband's property as well as right to divorce and right to adoption etc. The government has not yet considered amending the personal laws though it ensured equality of the citizens in the eye of the law by the constitution. The reason behind perhaps is that thinking any self-initiatives of amendment may give rise to communal tension in the country.
Comparative review
Inheritance: According to Bangladesh Law Hindu women only get a limited share. They inherit life interest in the property. There are five female Sapindas according to the Dayabagha law, namely the widow, the daughter, the mother, the father's mother and the mother of father's father. No other female relation is recognised as heir by the said school. Moreover a daughter cannot receive any property, even she cannot get life interest in the presence of son, grand son and great grand son. Although in neighbouring India laws in this regard have been updated since independence in 1947, in Bangladesh the pre-1947 laws are still prevailing. In India laws have been framed and amended that have established women's rights on the property of father and husband.
A wife's right to her husband's property is elaborately mentioned in Article 8 of Indian Succession Act. It is stated that if a Hindu man fails to distribute his property through a deed or testament, the inheritance will be determined based on Article 8 of the Hindu Inheritance Law and according to the list described in that law. In this way, a Hindu widow can demand the property of her husband under this law. Article 25 of Hindu Marriage Law states that a Hindu divorcee woman will receive subsistence allowance from her former husband. It is also stated that if the divorcee woman does not marry again, does not engage herself in adultery, and does not earn enough, she is entitled to receive subsistence allowance for the rest of her life from her former husband. Woman's limited estate has been abolished and whatever property has been or shall be inherited by a Hindu female will be or shall be her absolute property.
Marriage: According to Hindu social customs, Hindu marriages are solemnised through religious rituals. There is no marriage registration system for Hindus in Bangladesh. There is also no Hindu marriage law or Hindu marriage registrar in the country. So, if any Hindu woman suffers in the hands of her in-laws, she does not get legal help.
As per a 1946 law, Hindu women can file cases with courts to only regain the rights to conjugal life. Besides, the Hindu women can file cases under Family Court Ordinance 1985, Dowry Act 1980 and Women and Children Repression Act 2003. But these laws are too inadequate to protect the Hindu women's rights. But the situation is very different in neighboring India. There are laws in that country to protect the rights of Hindu women such as Widow Marriage Act 1856, Racial Inability Remission Act 1850, Child Marriage Prevention Act 1929 (Amended 1938), Earned Property Affairs Act 1930, Inheritance Act 1925 and Hindu Women's Rights to Lands Act 1937. Besides, new laws have been made in India after independence in 1947. These include Hindu Marriage Act 1955, Immature Children's Property Act 1956, Hindu Adoption and Maintenance Act 1956, Hindu Inheritance Act 1956 and Special Marriage Act 1960. It would be pertinent to mention the remarkable changes in ancient Hindu Law in India through the Hindu Marriage Act-1955:
1. Inter marriage between persons of different castes is not prohibited.
2. Monogamy which is essentially the voluntary union for life of one man with one woman to the exclusion of all others is now enforced by legislation.
3.Bigamy has been made punishable as an offence.
4.The conditions and requirements of a valid marriage have been considerably simplified.
5. Several matrimonial reliefs e.g., restitution of conjugal rights, judicial separation, nullity of marriage and divorce have been provided in this Act.
It is a matter of great regret that the Hindu women of our country fail to avail this kind of opportunity due to the lack of proper legislation.
Divorce: The concept of divorce is not recognised under the orthodox Hindu Law. Manu believed that the duty of a wife continues even after death. She can never have a second husband. The reason is that a marriage from the Hindu point of view creates an indissoluble tie between husband and wife. Unless divorce is allowed by the custom neither party to a marriage can divorce the other party. However, through the passing of Hindu Marriage Act 1955 in India some revolutionary changes have been introduced regarding marriage and divorce. After the passing of the Act the idea of marriage as an indissoluble union has been abolished and it is almost converted to a civil contract just like Muslim Law. The option of Divorce is the most significant part of this Act. Section 13(1) declares the right of divorce to both the parties. The grounds are as follows:
Adultery; treated the other party with cruelty; deserted the other party for a continuous period of not less two years immediately preceding the presentation of the petitioner; conversion to other religion; if one party becomes incurably of unsound mind or has been suffering continuously or intermittently from medical disorder of such a kind and extent that other party cannot reasonably be expected to live with the respondent.
Four grounds are available only to wife: Bigamy; Rape, sodomy; Non payment of maintenance decreed to the wife; Wife was under 15 when she was married and has repudiated the marriage before she is 18.
Unfortunately in Bangladesh any legislative enactment is yet to be introduced allowing a Hindu to divorce his/her spouse. Hindu women in Bangladesh are the worst sufferer due to this lack of provision of divorce. Very often they have to undergo physical and mental torture for dowry from their husband but can't divorce him since there is no such option in our country.
Adoption: Adoption is the transplantation of a son from the family in which he is born to another family where he is given by the natural parents by way of gift. The power of a Hindu female to adopt a son is very much restricted in Bangladesh. She can't adopt by herself but only with the consent of her husband. She has no right herself, she is deemed to act merely as an agent, or representative of her husband. A wife can but no other female can adopt. However, in India a woman enjoys a lot of rights conferred by the Hindu Adoption & Maintenance Act 1956. The Act has made the following changes in the law relating to adoption:
• A female may also be adopted(Sec:7&8)
• A virgin, divorcee, or widow is entitled to adopt and wife can also adopt in certain circumstances.(Sec:8)
• A male can adopt only with the consent of wife or wives, if any. (Sec:7)
• The father without the consent of mother can't give a child in adoption except in certain circumstances.(Sec:9)
• The ceremony of “Datta Homam” is not essential. (Sec:11)
From the above discussion it can be said that the Hindu women in Bangladesh are deprived of equal rights due to existence of the non-amended personal law which doesn't allow equal rights of women in different aspects of life even though constitutionally women are bestowed with equal right in social and political arena of Bangladesh. With the realisation of the concept that "man is not for law but law is for man", the world's civilizations has always brought about necessary changes in their respective laws and customs to adjust to the changing scenario. But in Ban-gladesh the scope of freedom of Hindu women is clogged by the crude provisions of Dayabhaga School that stands like a wall in the way of advancement and empowerment of Hindu women. This situation needs to be changed at any cost and there-fore following recommendations are suggested to bring a constructive change in the Hindu Family Law and thereby upheld the dignity of Hindu women:
• Polygamy should be prohibited through law.
• Marriage registration should be made compulsory along with the traditional ritual of marriage ceremony.
• Right to divorce of both man and woman should be ensured under equal condition.
• Maintenance should be given to the wife and children as per Guardianship and Ward Act,1898.
• Guardianship right should be entitled to both the parents.
• Adoption right should also be given to women.
• Finally, women should get equal share from the property of both father and husband.
Stridhan
The word Stridhan is derived from stre; woman and dhana property. It means literally women’s property.
According to Yajnavalakya-
‘What was given by her father, the mother , the husband , or received by her before the nuptial fire, or presented to her on her husband marriage to another wife and the rest (adya) is denominated Stridhan so that which is given by kindered as will as her marriage fee (Sulka) and anything bestowed after marriage’.
According to Gour-
The general quality of women’s property is limited character her restricted power of anealation and on her death it’s rebut ion to the time of the ast male owner.
It is necessary to know what kinds of properties were recognized as stridhan in the smrities that is to say by the rishis or sages of antiquity.
(i)Gifts made before the nuptial fire.
(ii)Gifts made at the bridal procession.
(iii)Gifts made in token of love.
(iv)Gift made by father.
(v)Gift made by the mother.
(vi)Gift made by the brother.
Distinction between Daya Bagha and Mitakshars Stridhan
Stridhan according to the mitakshara:
Stridhan as given by vijnaneswara in the mitakshara-that which was given by the father by the mother, by the husband or by a brother and that which was presented by the maternal uncles and the rest at the time of wedding before the nuptial fire, and a gift on a second marriage or gratuity on account of super session and as indicated by the ward adya property obtain by.
(i)Inheritance
(ii)Purchase
(iii)Partition
(iv)Seizure e.g. adverse possession
(v)Finding.
Stirdhan according to bangle school-
Jimutibahana believes that alone is stridhan with she has power to gift sale or used independently of her husbands control. So under the D.S. stridhans women’s property appears otherwise those by inheritance or partition over which she has full control and which after her death devolbs upon her own heirs. According to D.S. we can define in a positive sense and a negative sense in stridhan property.
(1)Positive sense: That all gifts from relation constitute stridhan except a gift of immoveable property made by the husband and that gifts from strangers also constitute stridhan if made before the nuptial fire or at the bridal procession.
(2)Negatively: That the following properties are not stridhan
(i) Property inherited by a woman.
(ii)Property obtained by her a partition
(iii)Gift from strangers except those made before the nuptial fire or at the bridal procession
(iv)Property acquired by her mechanical arts.
Difference: In Sheo Shankar vs. Devi Sabai in this case Stridhan said the Bengal school of lawyers has always limited the use of the term narrowly applying it exclusory or nearly exclusively to the kinds of woman’s property enumerated in the primitive seared tests.
The author of the Mitakshara and some other authors seems to apply the term broadly to every kind of property which a woman can possess from whatever source it may be derived.
Nature of Stridhan: Stridhan of every description belonging to woman posses upon her death the stridhan property will go her own heir. A woman has absolute control over her shridhan. She can dispossed of such property of her pleasure if not in all case during covertures in all cases during widowhood.
Woman is limited owner property which is not stridhan nor can she despots at her pleasure even during widowhood she is merely qualified owner.
Constituted stridhan
Several riches derived what is stridhan they are Manu, katyana, bishnu, yasbalka.
According to smites- the first is adhyagni gift made nupsel fire, explained by katyayana to mean gift made at the time of marriage before the fere which is the witness of the nuptial.
(2) Gifts made at the bridal procession that is says katyayana while the bride is being led from the residence at her parent to that of her husband (adhyagni).
(3) Gift made in token of at love that is says katyayana those made though affection by her father in law (pritedatta) and those made at the time of her making obeisance at the fest of elders (padavandanika).
(4) Gift made by father.
(5) Gift made by mother.
(6) Gift made by brother
Right of a woman over her stridhan:
(1) Right over stridhan during maidenhood there is no limitation to the power of her stridhan during maidenhood, whatever is the character of the stridhan, qualification attaching except the disqualification to her by reason of minority.
Hindu maiden is minor she can not alienate her property except thought her guardian nor can she dispose of it by will.
(2) Right over stridhan during covertures the power of a woman to disposses of her stridhan during covertures depends on the character of the stridhana for this purpose stridhana is divided into two classes.
(1) Saudayika or gift (2) other kinds of stridhan.
(3) Right over stridhana during widowhood.
A Hindu female has during widowhood absolute power of disposal over every kinds of stridhan, whether acquired, before or after her husband death.
Succession to stridhana
According to Dhyabagha school every female whether she is widow mother, sister, who succeeds as heirs to the property of a male takes only a limited state in the property inherited by her of upon her death the property passes to the next heirs of the diseased person from whom who got the property not to the own heir of the woman.
Inheritance & Partition under Hindu Law
Who are excluded from inheritance under Hindu Law?
The smritis declares that person labouringly under certain disabilities are excluded from inheritance. It has been stated that the exclusion from inheritance was based or upon the incapacity to perform sacrifices and religious ceremonies.
Manu states the following grounds of disqualifications “an important person an outcast, person born blind or deaf, insane, idiot, and the dumb as well as those deficient in any organ receive no share.
1. Physical and mantel defects: (i) Under the texts of Manu and Tajnavalka as interpreted by the carts the following defects, deformities and deceases exclude an her from inheritance:
(a) Blindness, deafness and dumbness, provided the defect is both congenital and incurable.
(b) Want of any limb or organ if congenital this includes the case of a person who is lamb or has no nose or langue. It also includes the case of congenital importance.
(c) Lunacy this need not be congenital or incurable to exist the heir from inheritance. It is enough if it exists at the time when the succession opens. Mare want of sound of mind or war ordinal, intelligence is not sufficient. It is sufficient if the person is and has been from his birth of such an unsound mind and imbecile mind as to be incapable of instruction or of discriminating between right and wrong.
(d) Idiocy provided it is complete and absolute idiocy is of course, congenital.
(e) Leprosy, when it is of such a type that it is incurable and render him unfit for social intercourse. It need not be congenital.
(f) Other incurable disease.
(ii) Under the Hindu inheritance removal of disabilities act 1928. No person other than a Person who is and his been from birth a hepatic or idiot, or share in joint family property by reason only of any disease, deformity, or physical or mental defect.
The act does not apply to any person governed by the dayabhaga school of Hindu law.
(2) Unchastely : A Hindu who is unchaste at the her husband’s death is not entitled to inherit to him, but once the husband estate has vested in her – which could only be if she was chaste at the time of her husband’s death it cannot be divested by her subsequent unchastely moniram vs. kerqs kolitani(1880). Similarly where the widow of a joint owner is given a widow’s estate on her husband’s death under a family arrangement, such an estate is not divested by her subsequent unchastely in the absence of any provision to that effect. (Name)
Under the mitakhara law the only female liable to exclusion from inheritance by reason of unchastely is the widow. (Tara vs. Krishna 1901)
But under the dayabhaga law the condition of chastity applies not only to the widow, but also to other female heirs, such as daughter and mother. (Ramnath vs. Durga 1879).
Unchastely excludes a female from inheriting toa male, but not to a female. It is therefore not a bar to inheriting stridhana, even according to the dayabhaga law. (Nogevidra vs. benoy1903)
(3) Change of religion and loss of caste: Change of religion and loss of caste which at one time were grounds of forfeiture of property and of exclusion from inheritance ceased to be so after the passing of the caste disabilities removal act 1850.
(4) Adoption of religious order: In a disqualification, were a person enters into religious order renouncing all worldly affairs his action is tantamount to civil death and it excludes him from inheritance.
(5) Murder: A murder even if not disqualified under Hindu law from succeeding to the estate of the person murdered is so disqualified upon the principle of justice, equity and good conscience. Further, no title to the estate of the person murdered can be claimed through the murdered. The result is that not only is the murdered excluded from inheritance but also his son or his sister or any other person claiming headship through him. He should be treated as non –existent when the succession opens on the death of his victim; he cannot be regarded as a fresh stock of descent.
(6) Disability as excluding females: The disabilities which exclude a male from inheritance also exclude a female from inheritance.
Effects of disability: Where an heir is disqualified, the next heir of the deceased succeeds as if the disqualified person were dead. The disqualified persons. Transmits no his heir.
A
(a)
S (insane) D
(b) A
B (bro) C (bro) (insane)
D
Here d is the nephew of the deceased and a nephew cannot inherit a brother is in existence.
Disqualification only personal: The disability is purely personal and does not extend to the legitimate issue of the disqualified heir. Nor does it extend, in cases governed by the Bombay school of Hindu law to his wife or widow but adopted sons of disqualified heir are not entitled to this heritable right
(a) A (not that the grandson succeed as the heir of his grandfather
A. he succeeds by own merits).
S (insane)
SSC
(b) A
B (insane) Daughter
Adopted son
Disability arising after succession: Property which has once vested in a person by inheritance is not divested by a subsequently supervening disability. (Deo kishan vs. Budh Prakash 1883).
Removal of disability after succession has opened: Where the disability is removed subsequently to the opening of the inheritance. The right to inheritance revives but not so as to divest the estate already vested in another person.
(a) A (the insanity is cured. S will succeed after widow
Death and not the brother).
S (insane) W B
(b) A (X is cured if B lefts no heir than X will succeed
As B’s heir and not other because B is a full
Owner).
X (insane) B
After born son of disqualified heir: Where after the succession has opened, a son is born to inherit so as to divest the estate already vested in another.
A (it’s the widow after her
Death nephew hire C will not
B (insane son) W Nephew be entitled).
Last full owner of the property or fresh stock of decent: Lest full owner of a property who hold the property. A dies living a widow, a mother, a brother or an uncle. When a dies his property can get his widow for a limited period, he can not sell this property she only can use this property for life time. After his death the property get A’s mother by blood relationship. Mother is a female heir so she can use this property for life time. So we can say that mother and widow is not a fresh stock of decent. But after death mother this property entitled brother. And if brother has any son so that brother is called last and full owner or fresh stock of descent.
Spes succession: The right of a person to succeed as heir on the death of a Hindu is a mere spes succession that is a bare chance of succession. A has a brother and uncle. Brother has a wife. It is true that if A died brother gets property nearest heir, if he was alive but in the life time of A brother can not take any property. All that he is entitled a bare chance of succession. But if the brother died before A’s death his wife can not get property. That property is entitled uncle but during A’s life time he can not get property. But he has a chance to get property after A’s death by heir. And this bare chance is called spes succession.
Partition
The word partition may be employed to mean either a division of or a division of passion or both. In short the term partition involves the severance of undivided interests in common property. So the rules relating to joint family or partition really form a part of the some branch of law.
Partition according to Mitakshara law, consists in ascertaining and defining the shares of the coparceners, in other words, it consists in a numerical division of the property by which the proportion of each coparcener in the property is fixed.
Partition according to Dayabhaga law, consists in splitting up of joint possession i.e. separating the share of the coparceners assigning to the coparceners specific partition of the property.
Partition how effected: Partition can be effected in the following ways-
(i) Partition by notice: A severance of joint status may be effected by serving a notice by a coparcener on the other coparceners including his intention to separate and enjoy the property in severalty or demanding partition of the property.
(ii) Partition by will: Partition may be effected by a coparcener by making a will containing a clear and unequivocal intimation to his coparceners of his desire to sever himself from the joint family or containing an ascertaining of his right to separate.
(iii) Marriage under special marriage act 1954: Marriage of a Hindu under the special marriage act eauses severance between him and the other members of the family.
(iv) Partition by agreement: The true test of partition being the intention of the member of the joint family to become separate owners, it follows that an agreement between the member of a joint family to hold and enjoy the property in certain defined shares as separate owner operates as partition.
(v) Partition by arbitration: An agreement between the members of a joint family where by they appoint an arbitrator to arbitrate and divide the property operates as a partition from the date thereof, the mere fact that no award has been made is no evidence of a renunciation of the intention to separate.
(vi) Partition by father: The father may also cause the severance of the sons without their consent. It is remnant of the ancient doctrine paternal power. The topic will be dealt with in detail under separate heading. Supreme Court, Hindu father under Mitakshara law can demand for partition along with his of the family. And thus can be bind the sons by partition.
(vii) Partition by suits: the institution of a suit for partition ipso fact effect severance of the joint family status and as such the mere intuition of such a suit effect immediate severance of joint status.
Effect of partition:
On partition of joint family, the joint status comes to an end and also the coparcenary is put to an end. The share of every branch of coparceners is also determined.
(a) Where the partition is general the undivided family as a unit comes to an end, where it is partial the member of the family who severed themselves from the unit loses the joint status which they had previously enjoyed as members of that particular group.
(b) Where partition takes place by marriage severance is effected between the persons marrying on the one hand and the rest of the family on the other.
(c) Partition automatically alters the character of the property pf the family. The coparcenaries of the family, the particular joint tenancy known to Hindu law- gives place to tenancy in common of the dividing member.
(d) But partition does not annul the family or other relation and does not disturb the rights incidental to such relation, such as the right to inherit.
What constitutes partition according to the Mitakshara and Dayabhaga school of Hindu law?
According to the true notion of a Mitakshara joint family, individual member of joint family, while it remains undivided, can predicate of the joint property that he that particular member has a certain definite share. So partition according to that law consists in ascertaining and defining the shares of the coparceners, in other word it consist in a numerical division of the property by which the property of each coparcener in the property by which the proportion of each coparcener in the property fixed.
According to dayabhaga law, on the other hand each coparcener even which the family remains undivided, a certain definite share in the joint property , of which he is the absolute owner the property is held by defined share though the possession is the joint possession of the while family. So partition according to Dayabhaga law, coparceners and assigning to the coparceners specific portion of the property.
According to the Mitakshara all that is necessary to constitute partition is a definite and unequivocal indication of intention by a member of the joint family to separate himself from the family and enjoy his share in severalty.
So partition according to Dayabhaga law constitutes – thus must be some thing mare than such an agreement. There must be a separation of the share and assignments to each coparcener of specific partition of the joint property.
So from the above discussion a partition according to Hindu law consists in separation the shares of the coparceners and assigning to the coparcener specific portion of the property.
Property available for partition:
What property is available for partition is to be determined by making provision-
(i) For paying joint family debts out of the joint family property.
(ii) For paying personal debts of the father not tainted with immorality.
(iii) For giving maintenance of dependent female member and disqualified heirs.
(iv) For funeral ceremonies of the widow and mother or the last male holder.
After giving all these an account must be taken or the joint family property in the hands of the manager and other member of the family according to the following rules-
(a) Since the institution of a suit for partition by a member of the joint family effect severance of the joint status of the family. A male member of the family who is then unmarried is not entitled to have a provision made on partition for his marriage expenses, although his marriage before the decree in the suit is made.
(b) In the case of unmarried daughter her right to maintenance and marriage expenses out of the joint family property is in lieu of a share on partition, provision should accordingly be made for her marriage expense in the decree.
(c) The rule in the case of an unmarried daughter that her marriage expenses come out of her own fathers share, applies to the expense of betrothal ceremonies of daughter.
(d) As regards the expenses of thread ceremonies of or the members of the family, has been held that the provision should be made for then on partition.
(e) For the legitimate marriage expenses of male member of the family and also of the daughter of male member of the family, the joint family property is liable as long as the family is joint. The father is always under obligation to get his daughter married. If the father neglects the mother may perform it and recover the expenses from the father.
Who are entitled to a share on partition?
(1) Every coparcener is entitled to a share upon partition.
(2) Every adult coparcener such as son, grand son and great-grand son is entitled to demand and sue for partition of the coparcener’s property.
(3) A suit on behalf of a minor coparcener can be brought for partition but the court should not pass a decree unless it is for the benefit of the minor.
(4) A son begotten at the time of partition and born after partition is entitled to have the partition re-opened if no share is reserved for him.
(5) The rights of a son begotten and born after partition are different according as the father has or has not reserved a share no himself.
(6) An adopted son in a partition suit between him and after born natural sons of his adopted father shares, equally as he would have done if have were a natural son, but he takes in Bengal one-third of the adoptive fathers estate.
(7) An illegitimate son of a Sudra does not acquire by birth any interest in his father’s estate. He can not therefore enforce a partition against his father in his life time.
(8) The position of absent coparcener is the same as the of minor. His right to receive a share extends to his descendants.
(9) A purchaser of the undivided interest of a coparcener of a sale in execution of a decree can demand partition.
(10) A wife can not herself demand a partition. If partition takes place between her husband and his sons, she is entitled to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband.
(11) Persons who are disqualified by physical infirmity from inheriting one dis-entitled to a share on partition.
