Hindu Law

Sources and Schools of Hindu Law

How will you prove the existence of a custom?

Proving of a custom—The English rule that a “custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary” has not been strictly applied to Indian conditions. All that is necessary to prove is that the custom or usage has been acted upon in practice for such a long period and with such invariability and continuity as to show that it has by common consent been submitted to as the established governing rule in any local area, tribe, community, group of family. Certainty and reasonableness are indispensable elements of the rule.

Onus to prove a custom—All customs pleaded and of which the courts do not take judicial notice must be clearly established and proved to be existing. The onus of establishing it is on the party relying upon its existence. It is for the party, who asserts that he is ruled in regard to the particular matter by custom, that he is governed by it and not by personal law, and further to prove what the particular custom is. [See: Asha Ram vs Bhanwar Lal, 1997 (1) WLC 113; 1996 (2) WLN 393]

Custom must be proved to be ancient, certain and reasonable—In the case of Asha Rani vs Gulshan Kumar, 1995 (2) HLR 23, Hon’ble Supreme Court has laid down that a custom must be proved to be ancient, certain and reasonable, if it is to be recognized and acted upon by courts of law. The specific family custom pleaded in a particular case should be proved by the party pleading it. It must be proved that the custom has been acted upon in practice for such a long period and with such invariability, as to show that it has, by common consent, been submitted to as the established governing rule of the particular family. Custom no doubt, can be proved by oral evidence of witnesses acquainted with custom, instances and general pronouncements.

According to P Pramanatha Aiyar, a custom may be proved or disproved in any of the following ways—

By the opinion of persons likely to know of its existence or having special means of knowledge thereof.
By statements of persons whose attendance cannot be procured without unreasonable delay or expenses, provided they were made before any controversy as to such custom arose, and were made by persons who would have been or likely to have been aware of the existence of such custom, if it existed.
By any transaction by which the custom in question was claimed, modified, recognized, asserted, or denied or which was inconsistent with its existence.

By particular instances by which the custom was claimed, recognized, or exercised, or knowledge of its exercise was disputed, asserted or departed from.

Can a court take judicial notice of a custom?

Judicial notice of a custom—If the community to which the parties belong has modified by long established usage the ceremonies prescribed by the shastras and has adopted new forms and new conventions, they must be recognized by the courts. But the essential requisite for recognition of such a custom is that, it must be sufficiently ancient and definite, and the members of the caste or sub-caste or family must recognize it as obligatory. It should not be left to the will of the caste or sub-caste to alter it at their will and pleasure, for the essence of custom or usage is that it is an ancient one recognized and adopted by the caste and has certainty about it. [Hindu Law by Mulla]

Custom repeatedly brought to the notice of the courts—In Raja Rao vs Raja of Pittapur, AIR 1918 PC 81, their Lordships of the Privy Council have held that when a custom or usage is repeatedly brought to the notice of the courts of the country, the court may hold that customary usage has been introduced into the law without the necessity of proof in each individual case.

In Ujagar Singh vs Mst. Jee, AIR 1959 SC 1041, the Supreme Court has held that when a custom is repeatedly recognized by the court, it passes into the law of the land and the proof of it then becomes unnecessary under section 57 of the Evidence Act (see now section 52 of the Bharatiya Sakshya Adhiniyam, 2023).

In RBSS Munnalal vs SS Rajkumar, the Supreme Court was called upon to decide the question whether the custom recognized among Jains to adopt a son without the express authority of her husband is required to be proved or a judicial notice of that can be taken. The Supreme Court has noted that the custom as pleaded has been recognized by judicial decisions spread over a period longer than a century. A review of the cases decided by different courts clearly showed that the custom was generally applicable to Jains all over India except Jains domiciled in Madras and Punjab. The Supreme Court found that the cases in which the custom is proved to have been established, the courts have arrived at the conclusion after consideration of the evidence led by the parties wherein large numbers of witnesses were examined at different places. The court then reiterated that where the custom is repeatedly brought to the notice of the courts of a country, the court may hold that custom introduced in law without the necessity of any proof in each individual case.

The ratio laid down by the aforesaid decisions appears to be that the custom repeatedly brought to the notice of the court and found established by the courts will transform into law and can be taken judicial notice of without proof in each individual case.

What was the social structure of Hindus based on Varna Dharma?

Social structure of Hindus based on Varna Dharma—The Aryan social order was divided into four watertight compartments, which were popularly known as chaturvarna—

(1) Brahmins—The Brahmins were engaged in imparting knowledge and worshiping Gods and deities and attend to the religious ceremonies as priests. Acquiring education and utilizing the same for their benefit was their exclusive domain and they came to be engaged as clerks, account keepers under the kingdoms. The Brahmins were revered as an incarnation of knowledge itself, endowed with the precepts and sermons to be discharged to all Varnas of society.

(2) Kshatriyas—Kshatriyas were known for their roles in warfare. They constituted the warrior class, comprising kings and soldiers. Thus, they had to protect the people and maintain order in the society. All Kshatriyas would be sent to a Brahmin’s ashram from an early age until they became wholly equipped with requisite knowledge. Besides austerities like the Brahmins, they would gain additional knowledge of administration. Their fundamental duty was to protect their territory, defend against attacks, deliver justice, govern virtuously, and extend peace and happiness to all their subjects.

(3) Vaishyas—Vaishyas basically formed the trading or business classes. Cattle rearing was one of the most esteemed occupations of the Vaishyas, as the possession and quality of a kingdom’s cows, elephants, horses, and their upkeep affected the quality of life and the associated prosperity of the citizens. Vaishyas would work in close coordination with the administrators of the kingdom to discuss, implement, and constantly upgrade the living standards by providing profitable economic prospects.

(4) Shudras—Shudras were the lowest of the social order and treated to be untouchables. For their livelihood, they were assigned occupations/duties which were also of the same status like disposal of dead animals, etc. In short, all lowly, menial and unsavoury occupations were assigned to them. They had no alternative but to follow these occupations, not only for generation after generation, but for century after century. They were made to believe that it was their karma which assigned them such jobs and social status. The other three varnas had a specific occupational order.

What was the social structure of Hindus based on Ashrama Dharma?

Social structure of Hindus based on Ashrama Dharma—Ashrama Dharma is one of the pillars of Hindu socio-religious tradition. More than a strict common practice, it is an ideal pattern for a fulfilled life. It divides life in four phases. The phases do not only give guidance to a person who wants to attain various goals in life, but it is also a practical way to sustain society. The experience of one phase is important to grow into the next phase.

Through the four ashramas, or phases of life, a person also seeks to fulfill the four essential goals of Dharma (natural law or moral conduct), Artha (worldly gain), Kama (sensual pleasures), and Moksha (liberation from rebirth). These goals show different perspectives on life; through Dharma, one focuses on doing what is right and avoiding what is wrong in relation to the people and the world around us; while the Artha perspective focuses on doing what is profitable and avoiding loss; the Kama perspective allows us to do what is pleasurable to our nature and to avoid pain; and Moksha emphasizes the importance of our spiritual development. [Mirella Kersten]

The ideal life span of the individual is divided into four stages – student (brahmacharya), householder (grihasta), retiree (vanaprastha) and a renunciate (sanyasi).

(1) The Brahmacharya—The first stage, that being of Brahmacharya, is the age of study and restraint. In this stage, the student should not indulge in any enjoyment, stay in the house of his guru and indulge in the study of Vedas and the other sciences. The teachers in ancient India usually lived in hermitages situated in forest. These hermitages were the gurukulas where the children of the rich and the poor lived together. The students used to honour their teacher as spiritual father and served him with faith, devotion and admiration.

The life of a student should revolve round studying of scriptures, eating simple food, doing plenty of exercise, and sleeping on a hard mat. The student should be modest and obedient, revere his elders and be pure in his thoughts, words and deeds. The student is also expected to abstain from wine, meat, perfumes, garlands, tasty and savory dishes, acids, spices, women, injury to any living creature, lust, anger, greed, dancing, singing and playing on musical instruments; from dice playing, gossip, slander and untruth.

After his life as a student is over, he should offer present to his teacher according to his ability and return home to enter the household life. The teacher, at this moment, gives the final teaching and sends the student home. Delivering the convocation address to the students at the conclusion of their studentship, the teacher says as following—

“Speak the truth. Do your duty. Never swerve from the study of the Veda. Do not cut off the line of progeny. Give the preceptor the fees he desires. Never swerve away from truth. Never swerve from duty. Never neglect your welfare. Never neglect your prosperity. Never neglect the study and the teaching of the Vedas.”

(2) The Grihastha—The second stage is that of the grihastha or householder. This household stage is entered at marriage, after the student has completed his education and is prepared to take up the responsibilities of household life. Of all the ashramas, this is the most significant, since it supports all the others.

Marriage is a sacrament for a Hindu, and the wife is his partner in life. She is his ardhangini (partner in life). He cannot accomplish any religious ritual without her. She stands by his left side when he performs any religious routine. A householder should make money by truthful means and allocate it in the proper manner. He should spend one-tenth of his income in charity. He should enjoy sensual pleasures within the limits of the moral law, and is allowed to enjoy marital happiness on one night in a month.

When the householder finds that his sons are proficient to bear the burden of his duties, when his grandsons are around him, he should identify that the time has come for him and his wife to retire from the world and spend their time in spirituality and meditation.

(3) The Vanaprastha—The next stage is that of the vanaprastha. As brahmacharya is a preparation for the life of the householder, vanaprastha is a preparation for the final stage of sanyasa. After performing all the duties of a householder, he should retreat to the forest and begin to meditate in isolation on higher spiritual affairs. He is now free from social bonds and the responsibilities of life. He has plenty of time for study of scriptures. His wife may go with him or stay with her sons.

(4) The Sanyasin—The next stage is that of a sanyasin. When a man becomes a sanyasin, he surrenders all possessions and all attachments of any kind. He lives a secluded life and spends his time in meditation. He lives on alms. When he attains the transcendent state of deep meditation, he rejoices in his own self. He is rather unresponsive to sensual pleasures, free from likes and dislikes, desires, egoism, lust, anger, greed, and arrogance, having equal vision and balanced mind. He loves all, roaming about happily and propagating Brahma-Jnana or Knowledge of the Self. He is alike in honour and dishonour, praise and condemnation, success and failure. He is now ativarnasrami, i.e., above varna or ashrama. He is quite a free man, not bound by any social customs and principles.

One should pass through the different ashramas—Life is very methodically and logically arranged and due occupations and training are assigned to each period of life. Life is a great school in which the powers, aptitudes and faculties of man are to be evolved steadily. Every man should pass through the different ashramas, and not enter any stage of life prematurely. He can enter the next stage, only when the earlier stage has been completed. It should be remembered that in nature, the evolution is gradual, and never revolutionary.

Manu says in his Smriti—“Having studied the Vedas or two Vedas or even one Veda in due order without breaking celibacy, let him dwell in the householder order. When the householder sees wrinkles in his skin and whiteness in his hair and the son of his son, then let him retire to the forest. Having passed the third portion of life in the forests, let him, having abandoned attachments, wander as an ascetic in the fourth portion of life.”

Ashrama dharma under modern conditions—At the present moment, the ashramas cannot be lived exactly according to what has been enshrined in our holy scriptures, for the simple reason that the conditions have undergone important changes; but they may be revived in their spirit. In these stages, no one should do the duty of another. The student or brahmachari should not do the duties of a householder, a recluse or a sanyasin. The householder must not perform the duties of a brahmachari, vanaprastha or a sanyasin. A sanyasin should not indulge in the joys of the householder. Peace and order will exist in society, only if all the people engage in their respective duties competently.

The students are expected to lead a life of purity and simplicity. The householder should lead the life of an ideal grihastha, practicing self-restraint, compassion, forbearance, non-injury, truthfulness and restraint in every affair of life. Those finding it hard to lead the life of the third and the fourth ashramas (vanaprastha and sanyasa) should, remaining in either of the other two ashramas, steadily depart themselves from worldly life and become rooted in selfless service, study, and meditation.

Concept of Hindu Marriage

Can we, even after the passing of the Hindu Marriage Act, 1955 say that the Hindu marriage is a sacrament?

Changes taking place in the institution of marriage—The enactment of the Hindu Marriage Act, in 1955, has considerably modified the institution of marriage as recognized by Hindu Law. This Act has brought about certain essential changes, as following—

(a) The Act has declared that marriages amongst Hindus, Jains, Sikhs and Buddhists, are valid Hindu marriages in the eyes of the law.

(b) The Act has abolished the divergence between the Mitakshara and the Dayabhaga Schools in connection with the prohibited degrees of relationship for the purposes of a Hindu marriage.

(c) The Act has also introduced the concept of monogamy, providing punishment for bigamous marriages within the meaning of the Bharatiya Nyaya Sanhita, 2023.

(d) The idea of women remaining pativrata has lost its significance as we see the Act allowing for divorce and even marriages by widow. Now, there is no distinction between the marriage of a maiden and that of a widow.

(e) The Act also prescribes the minimum age for marriage, being 21 in the case of a boy, and 18 in the case of a girl. Ancient Hindu law did not prescribe any such age for marriage.

(f) The Act does not prescribe any particular ceremony for a valid Hindu marriage. It only provides that such a marriage can be solemnized in accordance with the customary rites and ceremonies of any one of the parties to the marriage.

(g) The Act also provides for restitution of conjugal rights of the parties to a marriage.

Changes are taking place in the Hindu marriage, but they have not disturbed its universality and damaged its sanctity.

Kapadia writes, “Marriage continues to be a sacrament; only it is raised to an ethical plane. We rather go back to our Vedic ideal embodied in the saptapadi formula—“I take thee to be my companion in life.”

Mutual fidelity, still considered valuable—Mutual fidelity and devotion to the partner are still considered an essence of marriage. So long as marriage is not performed for sex gratification alone, but for living together and begetting children, marriage will continue to be a sacrament for Hindus. Freedom in marriage [mate selection, etc.] does not destroy, but rather confirms the stability of marriage and purifies its practice.

In the old days, the marriage was considered as sacrament. We have given a go-bye to that ancient principle that the marriage is a sacrament and that it continues throughout the life of the partners and even beyond their lives. That principle is no longer relevant or applicable in the context of changed social values of our modern lives. Therefore, once the principle of divorce and the principle of judicial separation have been incorporated in Hindu Marriage Act, 1955, and by amendment of 1976, some provisions have been liberalized, not to allow the agonies of the unhappy couple to prolong the litigation for years together, but to take them out from the unfortunate circumstances in which they are placed. There are thousands of marriages which are dissolved and which are terminated by the customary law of the parties. Those customary laws are still operative in Hindu society. [S Rashmi Pradeep Kumar Jain vs Pradeep Kumar, 1996 (1) Bom CR 502; II (1994) DMC 25]

The Hindu Marriage Act, 1955

Who is a Hindu? Who are the persons whom the Hindu Law applies?

Hindus under the Hindu Marriage Act, 1955 [S 2]—According to section 2 of the Hindu Marriage Act, 1955, the Act applies to the following persons—

(a) to any person who is Hindu by religion in any of its forms or development, including a Virashaiva, a Lingayat or a follower of the Brahmo Samaj, Prarthana Samaj or Arya Samaj;

(b) to any person who is a Buddhist, Jaina or Sikh by religion; and

(c) to any other person domiciled in the territories to which this Act extends, who is not a Muslim, Christian, Parsi or Jew by religion.

Act does not apply to members of the Scheduled Tribe—Under section 2 (2) of the Hindu Marriage Act, it has been clearly stipulated that the Act would not apply to members of the Scheduled Tribe unless there is a notification by the Central Government in the Official Gazette making the Act applicable to the Scheduled Tribes.

Thus, sub-section (2) of section 2 of the Act has the effect of laying down that persons belonging to the scheduled tribe will, in matters of marriage, continue to be governed by the personal law which was hitherto applied to them and not by any of the provisions of the Act, unless the Central Government by notification directs that any such provisions should be applicable to them. [Durga Charan Hansdah vs State of Delhi, 86 (2000) DLT 795; 2000 (56) DRJ 383]

Dr Paras Diwan on Hindu Law states that it does not mean that scheduled tribes which were prior to the codified Hindu Law, governed by Hindu Law will not now be governed by the Hindu Law. If before codification, any scheduled tribe was governed by Hindu Law, it will continue to be governed by it. However, it will be un-codified Hindu Law that will apply to them. It is pointed out that, if a tribe is sufficiently Hinduized, Hindu Law applies to it. But, whether a tribe is sufficiently Hinduized or not is a question of fact. [Indira vs State of Kerala, AIR 2006 Ker 1; 2006 (2) JCR 276]

Can the court instead of granting a decree of divorce pass a decree of judicial separation? Or What are the powers of the court to grant alternate relief in divorce proceedings?

Alternate Relief in Divorce Proceedings [S 13-A]—Section 13-A of the Hindu Marriage Act empowers the court that instead of granting a decree of divorce, it may pass a decree of judicial separation. However, no such discretion can be exercised where the petition for a divorce is based on the following ground that one of the spouses—

has ceased to be a Hindu by conversion to another religion. [S 13 (ii)]
has renounced the world by entering any religious order. [S 13 (vi)]
has not been heard of as being alive for a period of seven years. [S 13 (vii)]

Thus, the above three situations prevent the court to exercise the power under section 13-A of the Act.

Can there be the presentation of petition seeking divorce within one year of marriage?

No petition for divorce within one year of marriage [S 14]—According to the provision of section 14 of the Hindu Marriage Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage. [S 14 (1)]

Case of exceptional hardship—The section further provides that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented, before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent.

However, if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage. [Proviso to S 14 (1)]

The court may also dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed. [Proviso to S 14 (1)]

In disposing of any application under section 14 for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year. [S 14 (2)]

Provision, whether mandatory or directory—The principal issue is whether the said section 14 is mandatory or directory, particularly where a petition is presented prior to expiry of a period of one year since the date of marriage. Such question has been considered by a Division Bench in the case of Rabindranath Mukherjee vs Iti Mukherjee, 95 CWN 1085. In the said case, a petition for dissolution of marriage was presented a few days before the expiry of one year from the date of the marriage. The said provision was held to be directory and not mandatory. Their Lordships after referring to section 14 of the Hindu Marriage Act and considering the other similar pari materia legislations held that the said provision is directory. Justice Bhattacharyya was of the view that the proviso of section 14 (1) prohibiting to entertain a petition for divorce before the expiry of one year from the date of marriage is not that mandatory to require compliance with mathematical precision and to warrant rejection for any and every non-compliance.

The above judgment was subsequently followed in Indumathi vs Krishnamurthy, (1998) III MLJ 435.

When can a divorced person marry again?

When divorced persons may marry again [S 15]—In case, a marriage has been dissolved and a decree for divorce has been granted, the divorced person may marry again when—

either there is no right of appeal against the decree; or
if there is such a right of appeal, the time for appealing has expired without an appeal having been presented; or
an appeal has been presented but has been dismissed.

Party should wait to see if appeal has been preferred—Options Dock A successful party in the High Court must wait for a reasonable time and make sure whether an application for special leave has been filed in the Supreme Court. The Supreme Court has further held that where a decree for dissolution is passed and an appeal against it is dismissed by the High Court and the husband remarries after one month of the High Court’s order, he cannot be allowed to raise a plea that since he has remarried, special petition filed by the wife becomes infructuous. It was incumbent on him to have apprised himself as to whether the appeal in the High Court is still pending and, if not, whether the period for filing special leave petition to the Supreme Court has expired. [Tejinder Kaur vs Gurmit Singh, AIR 1988 SC 839; I (1988) DMC 355 (SC)]

What is the status of children born out of void and voidable marriages?

Legitimacy of children of void and voidable marriages [S 16]—Section 16 of the Hindu Marriage Act clearly lays down that notwithstanding that a marriage is null and void under section 11 and where a decree of nullity has been granted in respect of a voidable marriage under section 12, children who are born, who would otherwise have been legitimate, if the marriage had been valid, shall be deemed to be their legitimate children.

One thing must be made clear that the benefit given under section 16 is available only in cases where there is a marriage, but such marriage is void or voidable. A child born of void or voidable marriage is conferred with the status of legitimacy.

Legitimacy is a matter of status—Legitimacy is a status; it is the condition of belonging to a class in society the members of which are regarded as having been begotten in lawful matrimony by the men whom the law regards as their fathers. The status of legitimacy gives the child certain rights, both against the man whom the law regards as his father and generally in society. [Lord Simon of Glaisdale in Ampthill Peerage Case (1976) 2 All ER 411]

Illegitimate children, on the contrary, are children as are not born either in lawful wedlock, or within a competent time after its determination. It is on account of marriage, valid or void, that children are classified as legitimate or illegitimate. That is to say, the social status of children is determined by the act of their parents. If they have entered into a valid marriage, the children are legitimate; but if the parents commit a folly, as a result of which a child is conceived, such child who comes into existence as an innocent human baby is labeled as illegitimate. Realizing this situation, our Parliament, and we must appreciate the wisdom of the legislators then adorning the seats in the august hall, made a law which protected the legitimacy of such innocent children. This was a bold, courageous and dynamic legislation which was adopted by other advanced countries.

Illegitimate children are entitled to property of their parents—According to section 16 (3), any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, is not conferred any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.

Section 16 (3) of the Hindu Marriage Act by law confers a right upon such illegitimate children in the property of their parents. The property to which such a child can claim inheritance must be the exclusive property of the parents and such a child cannot claim any right in the coparcenary property in which his father has a share. Since no child whether legitimate or otherwise acquires right by birth in the separate property of its father or mother, a child of a void marriage can only succeed to the property of its parents in accordance with the provision of section 8 or section 15 of the Hindu Succession Act. [Chikkamma vs N Suresh, II (2000) DMC 461; 2000 (4) Kar LJ 468]

“Proceedings under Hindu Marriage Act are to be held in camera and may not be printed or published.” Are there any exceptions to this? Comment.

Proceedings to be In-camera [S 22]—Section 22 of the Hindu Marriage Act, 1955, recognizes the ‘right to privacy’ between the parties in a proceeding conducted under the Hindu Marriage Act. It has been clearly mentioned in section 22 of the said Act that the proceedings under the Act should be conducted in-camera. It shall not be lawful for any person to print or publish any matter relating to such proceedings. If any person contravenes such bar, he is liable for punishment with a fine which may extend to one thousand rupees. [R Sukanya vs R Sridhar, AIR 2008 Mad 244]

Recognition of the right of privacy—‘Privacy’ has been defined as “the rightful claim of an individual to determine to which he wishes to share himself with others and control over the time, place and circumstances to communicate with others.” It means the individual’s right to control dissemination of information about himself. It is his own personal possession. It is well accepted that one person’s right to know and be informed may violate another’s right of privacy. In other words, disclosure of certain facts, events, actions, photographs, and videotapes, in any form of media, print or celluloid, internet would cause embarrassment, agony and emotional stress to a person of reasonable sensitiveness.

Right of privacy, in other words, can be said ‘to be let alone’. What is information to others according to a journalist could be personal and sensitive information to an individual in a litigation relating to matrimonial dispute. The boundary between freedom of press and privacy of individual is the Lakshman Rekha. If the media crosses the line of boundary, the invasion starts. Striking a balance between these two competing interests is difficult. Right of privacy vis-a-vis right of information to be furnished to the general public, in other words, the right of the media, should be with reference to the kind of information which the law permits. We all know that Constitution does not guarantee absolute freedom or absolute protection to the media. Provisions of certain enactments would amply demonstrate the inherent restrictions on freedom of speech and expression, like the one prescribed under Article 19 (1) (g) of the Constitution of India.

Restriction on the freedom of the media and press—Visualizing the adverse effect on the women and children and exploitation of the vulnerable section of the society, the legislators have imposed reasonable restriction on the freedom of the media and press. Reading of these provisions makes it clear that the intention of the legislation is to maintain secrecy in respect of certain proceedings or inquiry and protect women and children from invasion of their right of privacy. These statutory restrictions are to protect their basic human right to lead life without hindrance from anyone in such of those enumerated matters. The media should not impinge upon the right of privacy. In other words, they should be allowed ‘to be let alone’. Right of privacy is now recognized as a right which flows from right to life and liberty under Article 21 of the Constitution of India.

The right of privacy created by the statute has to be preserved. Right of privacy in matrimonial matters between the parties in litigation under Marriage Act is personal to the litigating parties. Thus, it is manifestly clear that the legislature has intended to guard the right of privacy in relation to matrimonial matters.

Publication of the proceedings meant to be in-camera will affect the constitutional liberty guaranteed to the individual and it would be an invasion of his right of privacy. When section 22 (1) of the Act prohibits printing or publishing any matter in relation to any such proceeding arising under the Act, the Family Court or any other competent court dealing with matrimonial matter under the Hindu Marriage Act has inherent jurisdiction to issue an order of injunction or any such direction to give full effect to the statutory provision. [See: R Sukanya vs R Sridhar, AIR 2008 Mad 244]

Explain the concept of joint custody of children.

Concept of joint custody—The 257^th report of the Law Commission of India is on guardianship and custody laws in India. Chapter III of this report is on the concept of joint custody.

The term ‘joint custody’ can refer to several different things – joint legal custody; joint physical custody; or a combination of both. The definition given by the State of Virginia is as following—

Joint custody means—

joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent;
joint physical custody where both parents share physical and custodial care of the child; or
any combination of joint legal and joint physical custody which the court deems to be in the best interest of the child.

Encouragement to joint custody—Joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion. As a court-ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos. [Braiman vs Braiman, 44 N.Y. 2d 584 (1978)]

In the instant case, the court ruled that both parents are entitled to get custody “for the sustainable growth of the minor child.” Joint custody was affected in the following manner—

The minor child was directed to be with the father from 1 January to 30 June and with the mother from 1 July to 31 December of every year.
The parents were directed to share equally the education and other expenditures of the child.
Each parent was given visitation rights on Saturdays and Sundays when the child was living with the other parent.
The child was to be allowed to use telephone or video conferencing with each parent while living with the other. [KM Vinaya vs B Srinivas, MFA No. 1729/ 2011, Karnataka High Court Judgment dated 13 September, 2013]

Reasons for Adopting Joint Custody in India

[The 257^th report of the Law Commission of India]

(1) First, with rapid social and economic change, conjugal and familial relationships are becoming more complex and so are the conditions of their dissolution. As these social changes that affect family life escalate, we need to update the laws governing the family relationships, during and after the marriage. At present, our legal framework for custody is based on the assumption that custody can be vested with either one of the contesting parties and suitability is determined in a comparative manner. [Swati Deshpande, Divorced Dads Unite for Custody Rights, Times of India: September 9, 2009]

But, just as the basis for dissolving marriage has shifted over time, from fault-based divorce to mutual consent divorce, we need to think about custody differently and provide for a broader framework within which divorcing parents and children can decide what custodial arrangement works best for them.

(2) Second, the judicial attitude towards custody matters has evolved considerably. As legal scholar and activist, Flavia Agnes notes—

“In modern day custody battles, neither the father, as the traditional natural guardian, nor the mother, as the biologically equipped parent to care for the child of tender age, are routinely awarded custody. The principle, best interest of the child takes into consideration the existing living arrangements and home environment of the child. … Each case will be decided on its own merit, taking into account the overall social, educational and emotional needs, of the child. [Flavia Agnes, Family Law II: Marriage, Divorce and Matrimonial Litigation (2011), Oxford University Press]

(3) A number of institutions, including the judiciary, have already started engaging with the idea of shared custody. There are several components to the idea of shared custody, such as clear determinants of the best interest of the child standard, the role of judges and mediators, parenting plans and so on. These must be laid down in the law, in order for shared custody to be a viable option that facilitates divorcing parents to mutually agree on the preferred custodial arrangement, without compromising on the welfare of the child. [Extracted from Law Commission of India Report No. 257]

Joint custody is an option—Shared and equal guardianship is recommended by the Law Commission. However, joint custody is provided as an option. Therefore, the Judges, who are working on the family laws and the issue of custody, should not hold a view that once the Law Commission has given the suggestion of a Parenting Plan, it is binding in all the cases to adopt the same. The parties are not to be compelled to give such plan which amounts to illegality. Parenting Plan is an option for both the parties.

Mediation in Child Custody Cases

Mediation refers to a method of non-binding dispute resolution with the assistance of a neutral third party who tries to help the disputing parties to arrive at a negotiated settlement. [Afcons Infra. Ltd. vs Cherian Varkey, (2010) 8 SCC 24]

In the context of child custody, the focus of mediation is not to determine who is right or wrong, but rather to establish a solution that meets a family’s needs and is in the best interest of the child. [Terri Garner: Child Custody Mediation: A Proposed Alternative to Litigation]

The benefits of mediating a child custody dispute are as under—

both parents have input in determining custody and access arrangements for their children;
the children feel more secure knowing that their parents are willing to continue working together to resolve family problems;
parents are in the best position to decide what their children need;
it helps parents develop some trust in each other, which allows for future negotiation on issues that arise;
it is easier to work with a plan that parents have formulated themselves, rather than one that is imposed by the court; and
it can help avoid a long and costly court battle. [Family Conciliation Services–Manitoba Family Services]

The Hindu Adoptions and Maintenance Act, 1956

Can there be the adoption of a Hindu converted to Christianity?

Adoption by a Hindu converted to Christianity—A person who ceases to be a Hindu in religion and becomes a Christian cannot elect to be bound by the Hindu Law in the matter of succession after the passing of 17 the Indian Succession Act and a Hindu convert to Christianity is governed solely by the said Act. Thus, adoption by Indian Christian of Hindu origin who was destitute of son would not be governed by the custom prevailing in the family, namely, the principles of Hindu Law on adoption where an adopted son inherits the property of his adoptive father. Where a son was adopted by Indian Christians of Hindu origin, the adopted son cannot claim as a matter of right to inherit the property of his adoptive parents in absence of any statutory provision.

In the matters of adoption and such other matters with which Christianity has no concern, Indian Christians shall, in view of the court in the instant case, be governed by the law of the land and not by any rule of English Law. Adoption by a Hindu converted to Christianity, as a matter of fact, is not opposed to the philosophy and ethics of Christianity, the essence of which lies in the principles of non-violence, love, compassion, sacrifice, service to suffering humanity, truth, goodness and beauty which have endured the Christianity as a religion for long.

In case the convert has chosen to abide by the customary law of adoption, then the validity of adoption would be tested on the anvil of requisites of adoption as prescribed by the custom. In case, there exists no such custom, a childless Hindu converted to Christianity may, in exercise of his fundamental right to life, adopt a child. In such a case, the only formality, in order to constitute valid adoption would be a physical act of giving and taking – a ceremony imperative in all adoptions. This requisite is satisfied in its essence only by actual delivery and acceptance of boy. Since an adopted child seeks to displace the natural succession of property by alleging adoption, he must discharge the burden that lies upon him by proof of the factum of adoption and its validity. The evidence in proof of the adoption should be free from all suspicion of fraud and as consistent and probable as to give no occasion as to doubting the truth. The court was of the view that customary law applicable to Indian Christians before their conversion to Christianity, will continue to govern them in matters not specifically covered by any principle or tenet of Christianity being professed by the individual concerned provided that such customs and usages remained in vogue even after conversion. [Ajit Datt vs Mrs Ethel Walters (Dead) through LRs. 2000 (4) AWC 3270]

Explain the doctrine of relation back referring adoption.

Doctrine of relation back—Under the Shastric Hindu Law, adoption had the effect of transferring the adopted boy from his natural family into the adoptive family. It severes all his ties with the family in which he was born, and invests him with the same rights and privileges, in the family of the adopter as the legitimate son, subject to certain specific exceptions. Adoption of a son by a widow related back to the date on which the adoptive father died. The adopted son by a fiction of law is deemed to have been in existence, as the son of the adoptive father at the time of the latter’s death. [Raj Kumar Mohan Singh vs Raj Kumar Pasupatinath Saran, 1969 AIR 135; 1969 SCR (1) 1]

According to the doctrine of relation back, a son adopted by the widow under the authority of her husband is deemed to have come into existence in the adoptive family on the day the husband died. Thus, the adopted son is put in the position of posthumous son and all his relations in the adoptive family relates back to the date of the death of his adoptive father by legal fiction.

Doctrine of relation back makes son-ship retroactive—Under the Hindu Law an adopted son continues the line of the adoptive father for secular and spiritual purposes and when a widow adopts a son to her husband, the doctrine of relation back makes son-ship retroactive from the moment of the death of the late husband. The adopted son is deemed to have been born on the date of the death of the adoptive father. [Shripad Gajanan Suthankar vs Dattaram Kashinath Suthankar, (1974) 3 SCR 474]

Exceptions to the doctrine—There are certain exceptions to the doctrine of relation back, as under—

if there has been any lawful alienation effected by a female heir since the death of the adoptive father and before the date of adoption, the same will be binding on the adopted son.
doctrine of relation back cannot be applied when the claim made by the adopted son relates, not to the estate of his adoptive father, but to that of collateral.
doctrine also does not divest a person who has taken the property, not by intestate succession, but by transfer inter vivos or by will of the father or other preferential heir, who had taken the estate in the meanwhile.

Alienations made prior to the date of adoption are binding on adopted son—The doctrine of relation back under which a son adopted by a Hindu widow is deemed to have been in existence in the adoptive family at the death of the adoptive father cannot be accepted in its entirety. It is a doctrine with certain definite limitations and exceptions. One of the important limitations and exceptions is that the adopted son is bound by all the lawful alienations made by his adoptive father, if he was the sole surviving coparcener of a joint family. In this behalf, there is no difference in principle between an alienation inter vivos and a disposition made by a will. [Bijoor vs Padmanabh, ILR (1950) Bom 480]

Alienations made for legal necessity are binding on adopted son—It is settled law that rights of an adopted son spring into existence only from the moment of the adoption. Hence, all alienations made by the widow before the adoption, if they are made for legal necessity or otherwise lawfully, such as with the consent of the next reversioners, are binding on the adopted son. [Shripad Gajanan Suthankar vs Dattaram Kashinath Suthankar, AIR 1974 SC 878; (1974) 3 SCR 474]

What is the presumption as regards registered documents relating to adoption?

Presumption as to registered documents relating to adoption [S 16]—Section 16 which embodies a rule of presumption lays down that “whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.”

Under section 16 of the Hindu Adoption and Maintenance Act, 1956, registration of the adoption is not compulsory. If a registered document is produced as proof of adoption, then section 16 of the Act draws a presumption in favour of adoption. But that presumption is a rebuttable presumption. Onus is heavily upon the person who challenges an adoption to prove that there was no adoption.

Essential conditions—Before a presumption could be drawn under section 16, to the effect that the adoption has been made in compliance of the provisions of the Act, the conditions stipulated under the said section have to be fulfilled. The conditions to be fulfilled are—

The registered document evidencing adoption should be produced before the court.
It should be shown that the said document is signed by the person giving the child in adoption.
It should be shown that it is signed by the person taking the child in adoption.

Only if the aforesaid all the three conditions are fulfilled, the presumption contemplated under section 16 of the Act could be drawn.

Presumption when available—Presumption under section 16 of the Hindu Adoption and Maintenance Act is available only if the document has been executed by both the persons taking the child in adoption and the person giving the boy in adoption. Where the adoption deed is executed only by person taking in adoption, then such presumption under section 16 is not available. [Krishnabai Patil vs Ananda Patil, AIR 1981 Bom 240]

In the instant case, petitioner was lawfully adopted by a Hindu lady. There also existed a deed of adoption in that regard. Hence, presumption as per the provisions of section 16 of the Act could be drawn in favour of the petitioner. The said presumption would operate so long as there is no rebuttal by the procedure known to law. [NR Trivedi vs District Education Officer, AIR 2004 Guj 53]

Presumption is rebuttable—However, the said presumption is a rebuttable presumption. Once the person discharges the aforesaid legal requirements, a presumption is drawn in his favour and it is for the person denying the adoption to lead evidence to rebuttable the presumption. [Gangavva vs Ningavva, ILR 2008 KAR 1667; 2008 (4) Civil LJ 525; 2008 AIHC 2906 (Kar)]

Challenge to adoption deed—In case a challenge is thrown to the deed of adoption on the ground of its execution being by fraud, coercion or undue influence, it is for the party challenging the document that has to establish that the execution was so vitiated. [Sushil Chandra vs Bhoop Kunwar, AIR 1977 All 441]

The Hindu Succession Act, 1956

Briefly write about the objects of the Hindu Succession Act, 1956. What are the important changes introduced by the Hindu Succession (Amendment) Act, 2005?

Changes introduced by the Hindu Succession (Amendment) Act, 2005—The Hindu Succession (Amendment) Act, 2005, was enacted on the basis of the 174th report of the Law Commission. The representations made by the various women’s organizations were considered by the Law Commission. Even at the time when the Hindu Succession Act, 1956, was enacted, women’s organizations had voiced the grievance that though the 1956 Act made commendable inroads into the erstwhile Hindu system of inheritance, still the gender discrimination against women was not fully done away with by the 1956 Act. [Narayanan vs Meenakshi, AIR 2006 Ker 143; 2006 (1) KLT 210]

The Hindu Succession (Amendment) Act, 2005, was enacted to enlarge the rights of a daughter, married and unmarried both and to bring her at par with a son or any male member of a joint Hindu family governed by the Mitakshara Law. It also sought to bring the female line of descent at an equal level with the male line of descent, including children of pre-deceased daughter of pre-deceased daughter.

Deletion of provisions exempting agricultural holdings [S 4 (2)]—Deletion of section 4 (2) from the Hindu Succession Act, 1956, has removed gender inequalities in the inheritance of agricultural land. The tenurial laws specifying inheritance rules were highly gender biased in certain States. As a matter of fact, the males were preferred and the women came very low in the order of preference of heirs. However, the Amendment Act of 2005 has brought all agricultural land at par with other property. This has made Hindu women’s inheritance rights in land equal to men’s rights.

Now daughter is a coparcener [S 6]—Section 3 of the Amending Act has substituted the existing section 6 of the Hindu Succession Act. One gets a clue of the legislative intent when one looks at sub-section 3 of section 6, as amended. It stipulates that where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a joint family governed by Mitakshara Law shall devolve by testamentary or intestate succession and not by survivorship. A daughter is given a share equal to that of a son. [Smt. Mukesh vs Shri Bharat Singh, 149 (2008) DLT 114; 2008 (101) DRJ 362]

By way of the Amendment Act, the daughter of a coparcener has been admitted in coparcenary. Now, the daughter is a coparcener in her own right. The daughter has the same rights and liabilities in the coparcenary property as the son. The daughter is also entitled to dispose of her share of the coparcenery property or her interest thereof by way of a will.

The basic concept of coparcenary was that only male members of a joint Hindu family could constitute a coparcenary, thus, completely excluding the female members of the family. This concept has not been substantially modified with the amendment of section 6 of the Hindu Succession Act. Since the daughter has been made a coparcener by way of the amendment, she has been put at par with the son. Now, a daughter gets a birth right in the ancestral property owned by the coparcenary.

If daughter dies intestate, her property shall devolve upon her heirs—If the daughter dies intestate, her interest in coparcenary would devolve by succession in accordance with section 15 of the Hindu Succession Act. If the daughter is left alone by deceased male coparcener, she shall inherit his entire property of which she would become absolute owner. And after her death, if she dies intestate, the property shall devolve upon her heirs as per section 15. Further, the daughter now has the right to dispose of her interest in coparcenary by making a will. If she is a lone heir, she shall become absolute owner of the property and shall also have a right to alienate it during her life time.

Repeal of special provision respecting dwelling house [S 23]—Prior to the Amendment Act of 2005, the right of female Class-I heirs was limited only to a right of residence in a dwelling house under section 23. If the female heir was married, then she did not even have a right of residence, unless she was widowed or deserted by her husband. The joint status of the household could be brought to an end only by the male members and the female heirs did not have the right to ask for a partition.

No doubt, before coming into force of Amended Act of 2005, female heir of Hindu coparcener was not entitled to ask for partition of the dwelling house occupied by Joint Hindu Family until the male heirs choose to divide their respective shares therein but section 23 of the Act has been omitted by section 4 of the Amendment Act of 2005. It means that from the date of enforcement of amended provision to the Act, the female heir of a coparcener can ask for partition of the dwelling house because according to section 6 of the Act, her status is also that of a coparcener. [Prabhudayal (Dead) through LRs. vs Smt. Ramsiya, AIR 2009 MP 52; 2009 (1) MPHT 139]

Repeal of section 24 disentitling widows to inherit on their re-marriage [S 24]—Prior to the Amendment Act of 2005, any heir who was related to an intestate as the widow of a pre-deceased son, the widow of a pre-deceased son or the widow of a brother was not entitled to succeed to the property of the intestate as such widow, if on the date of succession opened, she had re-married. Section 24 has now been altogether repealed by the Amendment Act 2005. Now such widow is also entitled to succeed the property of the intestate.

Right of female Hindu to dispose of her interest—As per section 30 of the Act, 1956 only male Hindu was entitled to dispose of by will or other testamentary disposition his interest or share in Mitakshara coparcenary property. By the Amendment Act of 2005 by substituting the words ‘disposed of by him or by her’ in section 30, a right is given to the female Hindu to dispose of, by will or other testamentary disposition, her interest in Mitakshara coparcenary property.

“Heirs related to an intestate by full blood shall be preferred to heirs related by half blood, if the nature of the relationship is the same in every other respect.” Comment.

Full Blood preferred to Half Blood [S 18]—Section 18 of the Hindu Succession Act provides that “heirs related to an intestate by full blood shall be preferred to heirs related by half blood, if the nature of the relationship is the same in every other respect.”

No distinction between a man and woman in case of succession—The Hindu Succession Act was enacted for the purpose of giving an equal right to a son and a daughter whereby taking away the distinction between them which existed under the Hindu Law. The wording of section 18 and the object of the Hindu Succession Act, make it abundantly clear that the Act never intended to make any difference between a man and woman in case of succession of the properties of a male or female. [Narayanan vs Pushparajini, AIR 1991 Ker10]

The provisions of section 18 of the Hindu Succession Act will have to be considered in the light of the avowed object with which the said Act was enacted. Now, on a plain reading of the provisions of section 18 of the Hindu Succession Act, it appears to be clear that it is nothing but a substantial reproduction of the prevalent rule of Hindu Law under which relations of the whole blood were preferred to those of the half-blood, if their degree of relationship with the deceased was the same.

Section 18 provides for a preference of one category of heirs to another. Under section 3 (f), ‘heir’ is defined as meaning any person, male or female who is entitled to succeed to the property of an intestate under the Hindu Succession Act. When section 18 refers to heirs related to intestate by full-blood shall be preferred to heirs related by half-blood, these heirs may be males or females or both. Now, so far as the Entry No. 4 in Class-II is concerned, the female heir will be a brother’s daughter or sister’s daughter and the male heir will be a brother’s son or a sister’s son. In each one of the these categories, there may be heirs who are related to the deceased by full-blood or by half-blood, according as whether the heir is a full-blood brother’s son or daughter or daughter or full-blood sister’s son or daughter. If at the time when the succession opens, there are male and female heirs of full-blood and male and female heirs of half-blood, then all the heirs male and female of the full-blood will exclude the male and female heirs of the half-blood, provided of course the condition in section 18 that the nature of relationship is the same in every other respect is satisfied. [Govind Shindore vs Gopal Baburao Chakradeo, AIR 1984 Bom 208]

Nature of relationship is to be taken into consideration—Section 18 is a substantial reproduction of the rule of Hindu Law whereby relations of the full-blood are preferred to those of the half-blood and lays down a rule of general applicability to heirs, male and female alike. The applicability of this rule of preference is conditioned by the words “if the nature of relationship is the same in every other respect”.

The nature of the relationship of the heirs, with the intestate is to be taken into consideration. For the purpose of preference this Act makes no distinction between a son and a daughter and the nature of the relationship of the both with the father or the mother is that of a child. Thus the nature of relationship of brothers and sisters, being the children of the father of the intestate is the same. The nature of relationship is to be reckoned in terms of degrees of ascent or descent or both. This section speaks of the nature of relationship being the same and not the relationship being the same. The meaning of the words ‘nature of relationship’ must be found in the sense in which they best harmonize with the scheme. For applying the rule of preference given in this section; the nature of the relationship must be the same in every other respect. For example, it would not be applicable, if an heir is preferred under any other provisions of this Act. [Sarwar Singh vs Smt. Dhan Kaur, AIR 1971 Punjab 323]

What will be the mode of succession if two or more heirs succeed together to the property of an intestate?

Mode of succession of two or more heirs [S 19]—Section 19 of the Hindu Succession Act provides that “if two or more heirs succeed together to the property of an intestate, they shall take the property—

save as otherwise expressly provided in this Act, per capita and not per stirpes; and
as tenants-in-common and not as joint tenants.”

Heirs equally related to the deceased take equal shares per capita, but two or more heirs may be related to the deceased through a deceased heir as in the case of children of a pre-deceased daughter or pre-deceased son. In such a case, the children of one pre-deceased daughter and the children of another pre-deceased daughter or son take per stirpes.

For instance, if a man dies leaving three children by a pre-deceased daughter and four children by a pre-deceased son, the property will be divided half and half. The children of the pre-deceased daughter will take one half per stirpes and children of the pre-deceased son will take the other half per stirpes.

But when the children of the pre-deceased daughter divide the half taken by them, they take per capita, each daughter getting one-sixth. There is no joint tenancy between co-heirs taking the property of an intestate under the Act. It must be noticed that even when sons take the self-acquisitions of the father on the latter’s death on intestacy; they take not as joint-tenants with right of survivorship, but as tenants-in-common. In this, there is a departure from the position obtaining under the law previous to this enactment. The position is the same when two or more daughters or co-widows succeed and they take their shares absolutely as tenants-in-common so that on the death of any of them, the share of the deceased goes to her own heirs. [Hindu Law Principles and Precedents by NR Rashavachariar]

Partition and Reunion

Give a brief account of the scheme of partition under the Partition Act, 1893.

Scheme of Partition under the Partition Act, 1893—The scheme of sections 2 and 3 of the Partition Act, 1893, apparently is that, if the nature of the property is such or the number of shareholders is so many or if there is any other special circumstance and a division of the property cannot reasonably or conveniently be made, the court can, in its discretion, on the request of any of the shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and distribute the proceeds among the shareholders.

If a47 plaintiff in a suit for partition has invoked the power of the court to order sale instead of division in a partition suit under section 2 and the other shareholder undertakes to buy at a valuation, the share of the party asking for sale, the court has no option or choice or discretion left to it. It is bound to order a valuation of the share in question and offer to sell the same to the shareholder undertaking or applying to buy it at a valuation.

The purpose underlying the section undoubtedly appears to be to prevent the property falling into the hands of third parties, if that can be done in a reasonable manner. It would appear from the Objects and Reasons for the enactment of the Partition Act that as the law stood, the court was bound to give a share to each of the parties and could not direct a sale or division of the proceeds.

There could be instances where there were insuperable practical difficulties in the way of making an equal division and the court was either powerless to give effect to its decree or was driven to all kinds of shifts and expedients in order to do so. The court was, therefore, given a discretionary authority to direct a sale where a partition could not reasonably be made and the sale would, in the opinion of the court, be more beneficial to the parties. But having regard to the strong attachment of the people in this country to their landed possessions, the consent of the parties interested at least to the extent of a moiety in the property was made a condition precedent to the exercise by the court of the new power. At the same time, in order to prevent any oppressive exercise of this privilege, those shareholders who did not desire a sale were given a right to buy at a valuation to be determined by the court. [K. Ramamurthi Iyer vs Raja V Rajeswara Rao, (1972) 2 SCC 721]

What do you mean by physical division of property by metes and bounds in the context of partition of Hindu Undivided Family (HUF)?

Physical division of property by metes and bounds—The “physical division of property by metes and bounds”, in the context of partition of HUF, is that there should be actual physical division of the property as per defined and specified shares allotted to each member of HUF under partition, if that property admits of such physical division. If the property is of such nature that it does not admit of such physical division, then there should be such division as the property admits of. However, it will very much depend upon the sweet will of the members of HUF to mutually agree as to in what manner they divide the property so as to allot separate shares to each one of the members. [Mohanlal K Shah (HUF) vs Income Tax Officer, (2005) 92 TTJ Mum 360]

In Kalloomal Tapeswari Prasad (HUF) vs CIT, (1982) 133 ITR 690 (SC), the High Court held that though the 18 items of property could not be divided in 10 shares without destroying their utility, they could be apportioned among the 10 members and the difference in allocation could be equalized by payment of cash amount from one to the other. This decision of the High Court was upheld by the Hon’ble Supreme Court.

In Joint Family of Udayan Chinubhai vs CIT, (1967) 63 ITR 416 (SC), it has been held that an order recording partition could be made only if the properties of the joint family were partitioned in “definite portions”, that is, the properties were physically divided, if they admitted of such division, otherwise in such division as they admit of.

In CIT vs Govindlal Mathurbhai Oza, (1982) 138 ITR 711 (Guj), a partial partition in respect of one of the properties, being land of the HUF, was effected by a partition deed dated 12 September 1966. The land was earlier, under an agreement dated 25 September 1963, agreed to be sold by the karta to a third party for a consideration of Rs. 2, 67,540. In the partition deed, the members agreed to allot the whole land to the karta, who, in his turn, agreed to pay Rs. 2, 22,950, being the 5/6th share of the sale proceeds to the other five members of the family. The amount so agreed to be paid was in fact paid. It was held that a valid partial partition was affected.

In CIT vs Vajulal Chunilal, (1979) 120 ITR 21 (Guj), it has been held that even otherwise, a partial partition in respect of an asset belonging to the family can validly be effected by giving over that asset to one of the coparceners, who, in his turn, compensates the other members by paying cash equivalent to their respective shares in that regard.

In CIT vs Baldeo Dass Rameshwar, (1984) 147 ITR 473 (Raj), it has been held that where the coparceners executed a writing with a view to effect partition and agreed to hold some of the joint properties in defined shares as separate owners, such a writing operates in law as a partition of the entire joint family property, though the property may not be physically dividend.

What do you mean by family arrangement? What is the object of family arrangement?

Family arrangement—A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour. The agreement may be implied from a long course of dealing. However, it is more usual to embody or effectuate the agreement in a deed to which the term ‘family arrangement’ is applied.

Nature of family arrangement—In this connection, Kerr in his valuable treatise Kerr on Fraud makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus—“The principles which apply to the case of ordinary compromise between strangers do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced, if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend. [Kerr on Fraud]

Object of family arrangement—The object of the family arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. It promotes social justice through wider distribution of wealth. Family, therefore, has to be construed widely. It is not confined only to people having legal title to the property. The courts lean in favour of family arrangements. Technical or trivial grounds are overlooked. Rule of estoppel is pressed into service to prevent unsettling of a settled dispute.

Harmonious settlement of conflicting claims—By virtue of a family settlement or arrangement, members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family.

Recording of terms—Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there are no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess. [Tek Bahadur vs Debi Singh, AIR 1966 SC 292]

Wills

State the circumstances when the bequests become void?

Void bequests—The Indian Succession Act, 1925, provides for certain cases wherein the bequests are void, as following—

Bequest to person by particular description, who is not in existence at testator’s death [S 112]—Where a bequest is made to a person by a particular description, and there is no person in existence at the testator’s death who answers the description, the bequest is void.

Exception—If property is bequeathed to a person described as standing in a particular degree of kindred to a specified individual, but his possession of it is deferred until a time later than the death of the testator, by reason of a prior bequest or otherwise; and if a person answering the description is alive at the death of the testator, or comes into existence between that event and such later time, the property shall, at such later time, go to that person, or, if he is dead, to his representatives.

Illustrations

A bequeaths 1,000 rupees to the eldest son of B. At the death of the testator, B has no son. The bequest is void.
A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the death of the testator, C had no son. Afterwards, during the life of B, a son is born to C. Upon B’s death the legacy goes to C’s son.
A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the death of the testator, C had no son. Afterwards, during the life of B, a son, named D, is born to C. D dies, and then B dies. The legacy goes to the representative of D.
A bequeaths his estate of Green Acre to B for life, and at his decease, to the eldest son of C. Up to the death of B, C has had no son. The bequest to C’s eldest son is void.
A bequeaths 1,000 rupees to the eldest son of C, to be paid to him after the death of B. At the death of the testator C has no son, but a son is afterwards born to him during the life of B and is alive at B’s death. C’s son is entitled to the 1,000 rupees.

Bequest to person not in existence at testator’s death subject to prior bequest [S 113]—Where a bequest is made to a person not in existence at the time of the testator’s death, subject to a prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.

Illustrations

Property is bequeathed to A for his life, and after his death to his eldest son for life, and after the death of the latter to his eldest son. At the time of the testator’s death, A has no son. Here the bequest to A’s eldest son is a bequest to a person not in existence at the testator’s death. It is not bequest of the whole interest that remains to the testator. The bequest to A’s eldest son for his life is void.
A fund is bequeathed to A for his life, and after his death to his daughters. A survives the testator. A has daughters some of whom were not in existence at the testator’s death. The bequest to A’s daughters comprises the whole interest that remains to the testator in the thing bequeathed. The bequest to A’s daughters is valid.
A fund is bequeathed to A for his life, and after his death to his daughters, with a direction that, if any of them marries under the age of eighteen, her portion shall be settled so that it may belong to herself for life and may be divisible among her children after her death. A has no daughters living at the time of the testator’s death, but has daughters born afterwards who survive him. Here the direction for a settlement has the effect in the case of each daughter who marries under eighteen of substituting for the absolute bequest to her a bequest to her merely for her life; that is to say, a bequest to a person not in existence at the time of the testator’s death of something which is less than the whole interest that remains to the testator in the thing bequeathed. The direction to settle the fund is void.
A bequeaths a sum of money to B for life, and directs that upon the death of B the fund shall be settled upon his daughters, so that the portion of each daughter may belong to herself for life, and may be divided among her children after her death. B has no daughter living at the time of the testator’s death. In this case, the only bequest to the daughters of B is contained in the direction to settle the fund, and this direction amounts to a bequest to persons not yet born, of a life-interest in the fund, that is to say, of something which is less than the whole interest that remains to the testator in the thing bequeathed. The direction to settle the fund upon the daughters of B is void.

Rule against perpetuity [S 114]—No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the life-time of one or more persons living at the testator’s death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong.

Illustrations

A fund is bequeathed to A for his life and after his death to B for his life; and after B’s death to such of the sons of B as shall first attain the age of 25. A and B survive the testator. Here the son of B who shall first attain the age of 25 may be a son born after the death of the testator; such son may not attain 25 until more than 18 years have elapsed from the death of the longer liver of A and B; and the vesting of the fund may thus be delayed beyond the lifetime of A and B and the minority of the sons of B. The bequest after B’s death is void.
A fund is bequeathed to A for his life, and after his death to B for his life, and after B’s death to such of B’s sons as shall first attain the age of 25. B dies in the lifetime of the testator, leaving one or more sons. In this case, the sons of B are persons living at the time of the testator’s decease, and the time when either of them will attain 25 necessarily falls within his own lifetime. The bequest is valid.
A fund is bequeathed to A for his life, and after his death to B for his life, with a direction that after B’s death, it shall be divided amongst such of B’s children as shall attain the age of 18, but that, if no child of B shall attain that age, the fund shall go to C. Here, the time for the division of the fund must arrive at the latest at the expiration of 18 years from the death of B, a person living at the testator’s decease. All the bequests are valid.
A fund is bequeathed to trustees for the benefit of the testator’s daughters, with a direction that, if any of them marry under age, her share of the fund shall be settled so as to devolve after her death upon such of her children as shall attain the age of 18. Any daughter of the testator to whom the direction applies must be in existence at his decease, and any portion of the fund which may eventually be settled as directed must vest not later than 18 years from the death of the daughters whose share it was. All these provisions are valid.

Bequest to a class some of whom may come under rules in sections 113 and 114 [S 115]—If a bequest is made to a class of persons with regard to some of whom it is inoperative by reason of the provisions of section 113 or section 114, such bequest shall be void in regard to those persons only, and not in regard to the whole class.

Illustrations

A fund is bequeathed to A for life, and after his death to all his children who shall attain the age of 25. A survives the testator, and has some children living at the testator’s death. Each child of A’s living at the testator’s death must attain the age of 25 (if at all) within the limits allowed for a bequest. But A may have children after the testator’s decease, some of whom may not attain the age of 25 until more than 18 years have elapsed after the decease of A. The bequest to A’s children, therefor, is inoperative as to any child born after the testator’s death; and in regard to those who do not attain the age of 25 within 18 years after A’s death, but is operative in regard to the other children of A.
A fund is bequeathed to A for his life, and after his death to B, C, D and all other children of A who shall attain the age of 25. B, C, D are children of A living at the testator’s decease. In all other respects the case is the same as that supposed in Illustration (a). Although the mention of B, C and D does not prevent the bequest from being regarded as a bequest to a class, it is not wholly void. It is operative as regards any of the children B, C or D, who attains the age of 25 within 18 years after A’s death.

Bequest to take effect on failure of prior bequest [S 116]—Where by reason of any of the rules contained in sections 113 and 114, any bequest in favour of a person or of a class of persons is void in regard to such person or the whole of such class, any bequest contained in the same will and intended to take effect after or upon failure of such prior bequest is also void.

Illustrations

A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age of 25, for his life, and after the decease of such son to B. A and B survive the testator. The bequest to B is intended to take effect after the bequest to such of the sons of A as shall first attain the age of 25, which bequest is void under section 114. The bequest to B is void.
A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age of 25, and, if no son of A shall attain that age, to B. A and B survive the testator. The bequest to B is intended to take effect upon failure of the bequest to such of A’s sons as shall first attain the age of 25, which bequest is void under section 114. The bequest to B is void.

Effect of direction for accumulation [S 117]—(1) Where the terms of a will direct that the income arising from any property shall be accumulated either wholly or in part during any period longer than a period of eighteen years from the death of the testator, such direction shall, save as hereinafter provided, be void to the extent to which the period during which the accumulation is directed exceeds the aforesaid period, and at the end of such period of eighteen years the property and the income thereof shall be disposed of as if the period during which the accumulation has been directed to be made had elapsed.

(2) This section shall not affect any direction for accumulation for the purpose of—

the payment of the debts of the testator or any other person taking any interest under the will; or
the provision of portions for children or remoter issue of the testator or of any other person taking any interest under the will; or
the preservation or maintenance of any property bequeathed; and such direction may be made accordingly.

Bequest to religious or charitable uses [S 118]—No man having a nephew or niece or any nearer relative shall have power to bequeath any property to religious or charitable uses, except by a will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the wills of living persons: Provided that nothing in this section shall apply to a Parsi.

Illustrations

A having a nephew makes a bequest by a will not executed and deposited as required—

for the relief of poor people;
for the maintenance of sick soldiers;
for the erection or support of a hospital;
for the education and preferment of orphans;
for the support of scholars; for the erection or support of a school;
for the building and repairs of a bridge;
for the making of roads;
for the erection or support of a church;
for the repairs of a church;
for the benefit of ministers of religion;
for the formation or support of a public garden.

All the above bequests are void.

Can there be making of bequest in favour of religious and charitable institutions?

Bequest to religious and charitable institutions—A dedication of property for a religious or a charitable purpose can, according to Hindu Law, be validly made orally and no writing is necessary to create an endowment except where it is created by a will. [Menakuru Dasaratharami Reddi vs Duddukuru Subba Rao, (1957) 1 SCR 1122]

A dedication of property can be made by a gift inter vivos or by a bequest or by a ceremonial or relinquishment. An appropriation of property for specific religious or charitable purposes is all that is necessary for a valid dedication.

The courts in India have, in relation to Hindu wills and gifts, adopted the technical meaning of charitable trusts and charitable purposes which the courts in England have placed upon the term ‘charity’ in the Statute of Elizabeth. All purposes which are charitable according to English Law will be charitable under Hindu law. But in addition, under the bead of advancement of religion, there are other charitable objects in Hindu Law which will not be charitable according to English Law. What are purely religious purposes and what religious purposes will be charitable must of course be entirely decided according to Hindu Law and Hindu notions. [Mayne: Hindu Law and Usage]

When is a will said to be obtained by fraud, coercion or importunity? What would be the consequence of such a will?

Will obtained by fraud, coercion or importunity—According to section 61 of the Indian Succession Act, 1925, “a will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.”

Illustrations

A, falsely and knowingly represents to the testator, that the testator’s only child is dead, or that he has done some undutiful act and thereby induces the testator to make a will in A’s favour; such will has been obtained by fraud, and is invalid.
A, by fraud and deception, prevails upon the testator to bequeath a legacy to him. The bequest is void.
A, being a prisoner by lawful authority, makes his will. The will is not invalid by reason of the imprisonment.
A threatens to shoot B, or to burn his house or to cause him to be arrested on a criminal charge, unless he makes a bequest in favour of C. B, in consequence, makes a bequest in favour of C. The bequest is void, the making of it having been caused by coercion.
A, being of sufficient intellect, if undisturbed by the influence of others, to make a will yet being so much under the control of B that he is not a free agent, makes a will, dictated by B. It appears that he would not have executed the will but for fear of B. The will is invalid.
A, being in so feeble a state of health as to be unable to resist importunity, is pressed by B to make a will of a certain purport and does so merely to purchase peace and in submission to B. The will is invalid.
A being in such a state of health as to be capable of exercising his own judgment and volition, B uses urgent intercession and persuasion with him to induce him to make a will of a certain purport. A, in consequence of the intercession and persuasion, but in the free exercise of his judgment and volition makes his will in the manner recommended by B. The will is not rendered invalid by the intercession and persuasion of B.
A, with a view to obtaining a legacy from B, pays him attention and flatters him and thereby produces in him a capricious partiality to A. B, in consequence of such attention and flattery, makes his will, by which he leaves a legacy to A. The bequest is not rendered invalid by the attention and flattery of A.

Coercion to overpower the volition—To constitute undue influence, there must be coercion; pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. A person may exercise an unbounded influence over another, which may be a very bad influence, without its being undue influence in the legal sense of the word. Undue influence may be found against a person who had died before the execution of the will on the ground that the deceased was under that person’s complete control until his death, and thereby rendered incapable of making a fresh will free from such undue influence. [Halsbury’s Laws of England]

Persuasion is not unlawful, but pressure of whatever character, if so exerted as to overpower the volition without convincing the judgment of the testator will constitute undue influence, though no force is either used or threatened. The proof of motive and opportunity for the exercise of such influence is required, but the existence of such coupled with the fact that the person who has such motive and opportunity has benefited by the will to the exclusion of others is not sufficient proof of undue influence. There must be positive proof of coercion overpowering the volition of the testator. [Williams on Wills]

Man making the will must be a free agent—Even a reprehensible placing of pressure on a testator will not always be undue influence so as to avoid the will. To make a good will, a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like; these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting or the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping distress of mind or social discomfort; these, if carried to a degree in which the free play of the testator’s judgment, discretion or wishes is overborne will constitute undue influence, though no force is either used or threatened. [Hall vs Hall, (1868) LR 1 P and D 481]

Stridhana and Women’s Estate

Who are entitled to succeed stridhana?

Succession to stridhana—As per paragraph 147 of Mulla’s Principles of Hindu Law, stridhana passes in the following order—

unmarried daughter;
married daughter who is unprovided for;
married daughter who is provided for;
daughter’s daughter;
daughter’s son;
son;
son’s son.

Succession when woman married in approved form—If there be none of these, in other words, if the woman dies without leaving any issue, her stridhana, if she was married in an approved form, goes to her husband and, after him, to the husband’s heirs in order of their succession to him; on failure of the husband’s heirs, it goes to her blood relations in preference to the government.

Succession when woman married in unapproved form—If the woman was married in an unapproved form, it goes to her mother, then to her father, and then to the father’s heirs and then to the husband’s heirs in preference to the government.

Her kinsmen take it, if she dies without issue—The rules relating to succession to stridhana enunciated in the text books are based on Yajnyawalkya’s text “her kinsmen take it, if she dies without issue.” This statement is elaborated by Vijnyaneswara in Mitakshara. The relevant portions thereof, as translated by H T Colebrooke, are as follows—

If a woman dies ‘without issue’ that is leaving no progeny; in other words, having no daughter, nor daughter’s daughter, nor daughter’s son, nor son, nor son’s son; the woman’s property shall be taken by her kinsmen; namely her husband and the rest.

The kinsmen have been declared generally to be competent to succeed to a woman’s property. The author now distinguishes different heirs according to the diversity of the marriage ceremonies. The property of a childless woman, married in the form denominated Brahma, or in any of the four (unblamed modes of marriage), goes to her husband: but, if she has progeny, it will go to her (daughter’s) daughters: and, in other forms of marriage (as the Asura), it goes to her father (and mother, on failure of her own issue).

Of a woman dying without issue, as stated before, and who had become a wife by any of the four modes of marriage denominated Brahma, Daiva, Arsha and Prajapatya, the (whole) property, as before described, belongs in the first place to her husband. On failure of him, it goes to his nearest kinsmen (sapindas) allied by funeral oblations. But, in the other forms of marriage called Asura, Gandharba, Racshasa and Paisacha; the property of a childless woman goes to her parents, that is, to her father and mother. The succession devolves, first on the mother, who is virtually in the elliptical pitrigami implying ‘goes to both parents (pitarau) that is to the mother and to the father. On failure of them, their next of kin take the succession.

EJ Trevelyan on Hindu Law says that, “The succession to a childless woman depends upon the form of the woman’s marriage. If she has been married in the Brahma form, and the marriage will be presumed as being in that form, (even in the case of shudras, if the parties belong to a respectable family), the property goes to her husband, and after him, to his nearest sapindas, in order of their rights of succession to him.”

Gifts

What is the reason that a coparcener is not entitled to alienate his undivided interest?

Coparcener not entitled to alienate undivided interest—An individual member of the joint Hindu family has no definite share in the coparcenary property. By an alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. It is true that there is no specific textual authority prohibiting an alienation by gift. The law in this regard has developed gradually, but that is for the purpose of preventing a joint Hindu family from being disintegrated.

The rigor of this rule against alienation by gift has been, to some extent, relaxed by the Hindu Succession Act, 1956. Section 30 of the Act permits the disposition by way of will of a male Hindu in a Mitakshara coparcenary property. While the legislature was aware of the strict rule against alienation by way of gift, it only relaxed the rule in favour of disposition by a will, the interest of a male Hindu in a Mitakshara coparcenary property. The legislature did not, therefore, deliberately provide for any gift by a coparcenary of his undivided interest in the coparcenary property, either to a stranger or to another coparcener. Therefore, the personal law of the Hindus, governed by Mitakshara School of Hindu Law is that, a coparcener can dispose of his undivided interest in the coparcenary property by a will, but he cannot make a gift of such interest. [Thamma Venkata Subbamma (Dead) through Lrs vs Thamma Rattamma, 1987 AIR 1775; 1987 SCR (3) 236]

Discuss the mode of making of gift.

Mode of making a gift—Section 123 of the Transfer of Property Act regulates mode of making a gift and, inter alia, provides that a gift of immovable property must be affected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. In the case of movable property, transfer either by a registered instrument signed as aforesaid or by delivery is valid under section 123.

Section 123 may at this stage be gainfully extracted—

Transfer how effected [S 123]—For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.

Such delivery may be made in the same way as goods sold may be delivered.

Section 123 is in two parts—The first part deals with gifts of immovable property while the second part deals with gifts of movable property. Insofar as the gifts of immovable property are concerned, section 123 makes transfer by a registered instrument mandatory. This is evident from the use of word ‘transfer must be effected’ used by Parliament in so far as immovable property is concerned. In contradiction to that requirement, the second part of section 123 dealing with gifts of movable property, simply requires that gift of movable property may be effected either by a registered instrument signed as aforesaid or ‘by delivery’. The difference in the two provisions lies in the fact that in so far as the transfer of movable property by way of gift is concerned, the same can be effected by a registered instrument or by delivery. Such transfer in the case of immovable property, no doubt requires a registered instrument, but the provision does not make delivery of possession of the immovable property gifted as an additional requirement for the gift to be valid and effective. If the intention of the legislature was to make delivery of possession of the property gifted also as a condition precedent for a valid gift, the provision could and indeed would have specifically said so. Absence of any such requirement can only lead us to the conclusion that delivery of possession is not an essential prerequisite for the making of a valid gift in the case of immovable property. [Renikuntla Rajamma (Dead) through Lrs. vs K Sarwanamma, AIR 2014 SC 2906]

Benami Transactions

What is benami transaction under the Benami Transactions (Prohibition) Amendment Act 2016?

Benami transaction—Under the Amended Act, benami transaction means—

a transaction or an arrangement—
where a property is transferred to, or is held by a person, and the consideration for such property has been provided or paid by another person; and
the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration.
a transaction or an arrangement in respect of a property carried out or made in a fictitious name; or
a transaction or an arrangement in respect of a property where the owner of the property is not aware of, or denies knowledge of such ownership; or
a transaction or an arrangement in respect of a property where the person providing the consideration is not traceable or is fictitious.

Which kind of property held by a person does not fall within the meaning of benami transaction?

Test for determining whether a temple is a private or a public temple—The true test as laid down in the case of Deoki Nandan vs Murlidhar, (1956) SCR 756, in determining whether a temple is a private or a public temple, depends on whether the public at large or a section thereof, had an unrestricted right of worship. The court, in the instant case, observed that, “When once it is understood that the true beneficiaries of religious endowments are not the idols, but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof.”

A temple belonging to a family which is a private temple is not unknown to Hindu Law. In the case of a private temple, it is also not unlikely that the religious reputation of the founder may be of such a high order that the private temple rounded by him may attract devotees in large number. The mere fact that a large number of devotees are allowed to worship in the temple would not necessarily make the private temple a public temple. On the other hand, a public temple can be built by subscriptions raised by the public and a deity installed to enable all the members of the public to offer worship. In such a case, the temple would clearly be a public temple.

Where evidence in regard to the foundation of the temple is not clearly available, sometimes, judicial decisions rely on certain other facts which are treated as relevant. Is the temple built in such an imposing manner that it may prima facie appear to be a public temple? The appearance of the temple of course cannot be a decisive factor; at best it may be a relevant factor. Are the members of the public entitled to an entry in the temple? Are they entitled to take part in offering service and taking darshan in the temple? Are the members of the public entitled to take part in the festivals and ceremonies arranged in the temple? Are their offerings accepted as a matter of right? [Tilkayat Shri Govindlalji Maharaj vs State of Rajasthan, (1964) 1 SCR 561]

Guidelines to determine whether an endowment is of a private or of a public nature—In the instant case, Hon’ble Supreme Court provided certain guidelines to determine whether an endowment is of a private or of a public nature. Such guidelines prescribed by the Supreme Court are as follows—

where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right;
the fact that the control and management vests either in a large body of person or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large;
where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature;
where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment. [Radhakanta Deb vs The Commissioner of Hindu Religious Endowments, Orissa, AIR 1981 SC 798]

Religious and Charitable Endowments

When does a dedication to religious and charitable endowment become complete?

Dedication, when complete—While considering the question whether or not dedication is complete in a given situation, the Supreme Court has held that, it would naturally be a question of fact to be determined in each case in the light of the material terms used in the document. In such cases, it is always a matter of ascertaining the true intention of the parties. It is obvious that such intention must be gathered on a fair and reasonable construction of the document considered as a whole. The use of the word ‘trust’ or ‘trustee’ is, no doubt, of some help in determining such intention; but, the mere use of such word cannot be treated as decisive of the matter. The answer to the questions whether the private title over the property was intentioned to be completely extinguished or whether the title in regard to the property was intended to be completely transferred to the charity can be found, not by concentrating on the significance of the words ‘trustee’ or ‘trust’ alone, but by gathering the true intent of the document considered as a whole. [M Dasaratharami Reddi vs D Subba Rao, AIR 1957 SC 797]

Proving of dedication—Dedication to the public may be proved by evidence or circumstances obtainable in given facts and circumstances. In given set of facts, it is not possible to prove actual dedication which may be inferred on the proved facts that place of public religious worship has been used as of right by the general public or a section thereof as such place without hindrance.

In a public debutter or endowment, the dedication is for the use or benefit of the public. But in a private endowment, when property is set apart for the worship of the family idol, the public are not interested. The mere fact that the management has been in the hands of the members of the family itself is not a circumstance to conclude that the temple is a private trust. In a given case, management by the members of the family may give rise to an inference that the temple is impressed with the character of a private temple and assumes importance in the absence of an express dedication through a document. As stated earlier, consciousness of the manager or the devotees in the user by the public must be as of right. If the general public has always made use of the temple for the public worship and devotion in the same way as they do in other temples, it is a strong circumstance in favour of the conclusiveness of public temple. The origin of the temple, when lost in antiquity, it is difficult to prove dedication to public worship. It must be inferred only from the proved facts and circumstances of a given case. No set of general principles could be laid. [Gangadhar Ambadas Parashare vs Mahadeo Ambadas Parashare, (1999) 101 BOM LR 80]

What is the test for determining whether a temple is a private or a public temple? Mention the guidelines as laid down by the Supreme Court to determine whether an endowment is of a private or of a public nature.

where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right;
the fact that the control and management vests either in a large body of person or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large;
where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature;
where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment. [Radhakanta Deb vs The Commissioner of Hindu Religious Endowments, Orissa, AIR 1981 SC 798]

What is the law relating to succession to the office of Mahant? Can a woman succeed to the position of Mahant?

Succession to the office of Mahant—Mathadhipati is the spiritual head to impart religious instructions. Therefore, he cannot be treated as a hereditary trustee nor he be held to hold any office or service or a post by whatever name it is called. Appointment of a Mathadhipati is not a secular act. Mathadhipati, indisputably not being a trustee, his appointment is purely a religious act. The nomination of the Mathadhipati is based upon usage and custom of the Math. It is a concept appertaining to Hindu religious endowment. It is sui generis. [Sri Sri Sri Lakshamana vs State of Andhra Pradesh, AIR1996 SC1414; JT 1996 (1) 535]

Different ways of succession—Succession to the office of Mahant or Head of a Mutt is to be regulated by the custom of the particular Mutt. In most cases, especially in Southern India, the successor is ordained and appointed by the Head of the Math during his own life time. And, in default of such appointment, the nomination may rest with the head of some kindred institution or the successor may be appointed by election by the disciples and followers of the Math, or, in the last instance, by the court as representing the sovereign. [Sri Mahalinga Thambiran Swamigal vs His Holiness Sri La Sri Kasivasi Arulnandi Thambiran Swamigal, 1974 (2) SCR 74]

Succession according to custom of the particular Math—In Satnam Singh vs Bhagwan Singh, AIR 1938 PC 216, it is pointed out that the succession to the office of Mahant and the ownership of a Math property limited by the period of tenure of the office are to be regulated by the custom of the particular Math. The plaintiff in the suit is bound to allege and prove what the custom or practice of the particular Math is and that his acquisition of Mahantship was according to that custom. The rule has been reiterated by the Supreme Court in Mahalinga Thamhiran vs Arulnandi Thambiran, AIR 1974 SC 199. It has further been observed that in most cases the successor is ordained and appointed by the Head of the Math in his own lifetime. And in default of such appointment, the successor may be appointed by election by the disciples or in the last instance by the court as representing the sovereign.

The general principle as regards succession to the office set out in the case of Mahant Bhagwan Bhagat vs Girija Nandan Bhagat, AIR 1972 SC 814, are as follows—

Once a Mutt is established, succession to headship takes place within the spiritual family according to the usages that grow up in a particular institution.
Three aspects have to be borne in mind in connection with the question of succession to the office of a Mahant. The first is that if the grantor has laid down any particular rule of succession, which is to be given Regular Second Appeal No. 2194 of 2000 -14- effect to. Secondly, in the absence of any grant, the usage of the particular institution is to be followed; and in the third place, the party who lays claim to the office of a Mahant on the strength of any such usage must establish it affirmatively by proper legal evidence. The fact that the defendant is a trespasser would not entitle the plaintiff to succeed even though he is a disciple of the last Mahant, unless he succeeds in proving the particular usage under which succession takes place in the particular institution.
Generally speaking, the Mutts are divided into three classes according to the different ways in which the heads or superiors are appointed. These three descriptions of Mutts are Mourasi, Panchayati and Hakimi. In the first, the office of the Mahant is hereditary and devolves upon the chief disciple of the existing Mahant who usually nominates him as his successor. In the second, the office is elective, the presiding Mahant is selected by an assembly of Mahants. In the third, the appointment of the presiding Mahant is vested in the ruling power or in the party who has endowed the temple.
In a Mourasi Mutt, the chela or disciple of the last Mahant succeeds to the office. When there are Regular Second Appeal No. 2194 of 2000 -15- more chelas than one, generally, the eldest succeeds, but a junior chela may succeed, if he is found more capable and, if he is selected by the last Mahant as his successor. In various institutions, the custom is that in order to entitle a chela to succeed, he must be appointed or nominated by the reigning Mahant during his lifetime or shortly before his death. This may be done either by a written declaration or some sort of testamentary document. In other cases, the nominee is formally installed in the office and some sort of recognition is accorded to him by the members of the particular sect either during the lifetime of the last Mahant or when the funeral ceremonies of the latter are performed. When the Mahant has the right to appoint his successor, he may exercise the right by an act inter vivos or by will.
In a Mourasi Mutt, it is possible for the Mahant to make over the endowment during the lifetime to his chela whom he appoints as a successor. In many cases, when a successor is appointed by Mahant, he is installed in office with certain ceremonies. This cannot be deemed to be essential.
A Mahant may nominate his successor subject to its confirmation by the fraternity commonly, known as a Bhek. The mode and manner of such nomination may vary from institution to institution and may in a given circumstance, be made by way of written document and even by a will.

The rule of succession, therefore, depends upon the nature Regular Second Appeal No. 2194 of 2000 -16- of a religious institution, its customs or its usage and would necessarily have to be proved, as a fact, by the person, who alleges such a custom or usage.

Son’s Pious Obligation to Pay Father’s Debt

Can a son be held liable for liabilities of father arising out of his criminal acts? Who has to discharge the burden of proving the immoral character of debt?

No liability for father’s debt for criminality—A son cannot be held liable for his father’s liabilities arising out of his criminal acts. Thus, where a father obtains moneys or goods by the commission of an offence or where as an agent or trustee, guardian or receiver, manager or other employee, he criminally misappropriates moneys or goods that come to his hands, his sons are not liable.

Where a Hindu father has lawfully received moneys, the fact that he subsequently misappropriates them will not change the character of the debt, and the son’s liability in that regard will not be affected by the supervening dishonest act of the father.
Where the taking of the money itself is not criminal offence, a subsequent misappropriation by the father cannot discharge the son from his liability to satisfy the debt. However, the position is different, if the money has been taken by the father and misappropriated under circumstances which render the taking itself a criminal offence. [Chhakauri Mehton vs Ganga Prasad, (1912) 39 Cal 862]

In the case of A Chinnaswamy vs S Chandrasekhara Sharma, 1966 (2) Mys LJ 575, the father had collected, during the course of his management as trustee, large sums of money and thereafter, instead of applying the same for the purpose of the trust, misappropriated them and therefore, decrees were obtained against the father for those sums. On these facts, it was held that the debts were not avyavaharika debts and the son was liable for debts under the pious obligation rule. While a son is not liable for his father’s debts arising out of criminal acts, he cannot be exonerated, if the debt incurred by the father was not wrongfully taken by him, though subsequently, either it was misappropriated by him or he committed breach of trust. The son could claim immunity only when the debt in its origin was immoral by reason of the money having been obtained by the commission of an offence, but not where the father came by the money lawfully and subsequently misappropriated it.

Sons to prove the immoral character of the debt—In this connection, it has also been urged by Dr. Barlingay that the onus placed on the sons to prove the immoral character of the debt is already very heavy. In discharging the said onus, the sons are required to prove not merely that their father 8contracted the impugned debt, lived an extravagant or immoral life, but they are also required to establish a direct connection between the immorality of the father and the impugned debt. If this onus is made still more onerous by requiring the sons to prove that the alienee had knowledge of the immoral character of the antecedent debt, it would virtually make the sons’ task impossible, and notwithstanding the spirit underlying the doctrine of pious obligation, the sons in fact would be compelled to pay the immoral or impious antecedent debt of their father. That is why, the rule which requires that the sons should prove the knowledge of the alienee is inconsistent with the basis of the doctrine of pious obligation.

Briefly discuss the Rule of Damdupat.

Rule of Damdupat—The Rule of Damdupat is a branch of the Hindu Law of Debts. According to this rule, the amount of interest recoverable at any one time cannot exceed the principal. It is further stated that where a suit has been instituted to recover a loan, the Rule of Damdupat ceases to operate. The result is that though the court is bound to apply the Rule of Damdupat up to the date of the suit, it is free to award interest to the creditor at such rate as it thinks proper from the date of the suit up to the date of the decree or payment upon the total amount that may be found due to him after applying the rule.

Reason of the Rule—The Rule of Damdupat was evolved both as an inducement to the debtor to pay the entire principal and interest thereon at one and the same time in order to save interest in excess of the principal and as a warning to the creditor to take effective steps for realizing the debt from the borrower within reasonable time. There should be no such accumulation of interest as would be in excess of the principal amount due, as in that case, he would have to forego the excess amount. [Hukumchand Gulabchand Jain vs Fulchand Lakhmichand Jain, 1965 AIR 1692, 1965 SCR (3) 91]

The reason of the rule has been stated by Kanhaiyalal J. in his judgment in 46 ALL 775, in the following words—

“The Hindu Law did not recognize any rule of limitation for the recovery of debts. Every debt which was lawful was binding and recoverable from the debtor irrespective of the period which may have elapsed since the original liability was incurred, and no restriction on its recovery was recognized beyond this that at no time more than double the amount of the principal money could be claimed.” [Vide: HP State Co-Operative Bank Ltd. vs State of HP, 2008 (1) Shim LC 189]

Applicability of the Rule— This statutory rule has been embodied in several Acts for the relief of debtors by various enactments; namely, the Deccan Agriculturists Relief Act, 1879; the CP and Berar Moneylenders Act, 1934; and the Santhal Parganas Settlement Regulation Act, 1872.

(a) The rule is one of equity and one of good sense. The rule of Damdupat ceases to operate on the filing of the suit. [Radhey Sham vs Smt. Santosh Rani, (2000) 125 PLR 425]

(b) The Rule of Damdupat is not affected by the Usury Laws Repeal Act, 1855. According to that Act, the court is bound to award interest at the contract rate, whatever the rate of interest may be.

(c) The Rule of Damdupat does not apply to interest recoverable in execution of a decree. The reason is that the rule ceases to operate after suit.

(d) It is further stated that the rule of Damdupat applies in the Bombay State. It applies also in the town of Calcutta, but not in any other part of Bengal. The rule is not given effect to in the State of Rajasthan or in any part of the Madras State or the Uttar Pradesh. Of course, there is no dispute that the Rule of Damdupat applies only where the original contracting-parties are Hindus. However, the Bombay High Court appears to have taken the view that all that is necessary for the application of the Rule is that the original debtor should be a Hindu.

In the case of Sheokaransingh vs Daulatmm, AIR 1955 Raj 201, the court has held that the Rule of Damdupat as recognized by Hindu Law, in the absence of any statute is no longer of binding force and cannot be given effect to in the State of Rajasthan. It is further held that “though Damdupat in text books of Hindu Law is a rule of Hindu Law of debts, it is not in force in any part of India now as a principle of Hindu Law. The reason is that Hindu Law, as now enforced by courts of law, is confined only to matters of personal law, while the question of interest is not a matter of personal law, but of civil law generally. Wherever therefore the Rule of Damdupat is applicable, it is applied by virtue of a statute or custom, and not as a branch of Hindu Law. It is further held that, “In enforcing the Rule of Damdupat, therefore, as between Hindus or, at any rate, in cases where the debtor is a Hindu, the State will clearly be discriminating against non-Hindus on the ground of their religion. The rule of Damdupat, as known to Hindu Law is now clearly hit by Article 15 (1) of the Constitution, and as such would be void under Article 13 (1).

The Family Courts Act, 1984

What is the role of the following in the matter of resolution of matrimonial disputes within the meaning of the Family Courts Act? (a) Association of Social Welfare Agencies; (b) Counselors, Officers and other Employees of Family Courts.

Association of Social Welfare Agencies [Section 5]—The State Government may, in consultation with the High Court, provide for the association with a Family Court of—

institutions or organizations engaged in social welfare or the representatives thereof;
persons professionally engaged in promoting the welfare of the family;
persons working in the field of social welfare; and
any other person whose association with a Family Court would enable it to exercise its jurisdiction more effectively in accordance with the purposes of this Act.

Section 5 of the Family Courts Act confers power on the State Government to provide for the association with a Family Court with the institutions or organizations engaged in social welfare or the representatives thereof; persons professionally engaged in promoting the welfare of the family; persons working in the field of social welfare etc. [Krishnakumari vs Venugopal, 2005 (2) KLT 185]

(b) Counselors, Officers and other Employees of Family Courts [S 6]—According to section 6 (1) of the Family Act, the State Government shall, in consultation with the High Court, determine the number and categories of counselors, officers and other employees required to assist a Family Court in the discharge of its functions and provide the Family Court with such counselors, officers and other employees as it may think fit.

The counselors, officers and employees only render assistance to him and their absence does not make the constitution of the Family Courts illegal. [Radhey Shyam Soni vs State of Rajasthan, 1992 (3) WLC 661; 1991 (1) WLN 291]

Sources and Schools of Hindu Law

Concept of Hindu Marriage

The Hindu Marriage Act, 1955

The Hindu Adoptions and Maintenance Act, 1956

The Hindu Succession Act, 1956

Partition and Reunion

Wills

Stridhana and Women’s Estate

Gifts

Benami Transactions

Religious and Charitable Endowments

Son’s Pious Obligation to Pay Father’s Debt

The Family Courts Act, 1984

Quick Links

Your Account

Our Books

Our Books

Legal