HinduLaw-1 ஹிந்து வாரிசு உரிமை சட்டம்

2006-09-05T06:03:00.026+05:00

Hindu Family Law:-

Sources of Hindu Law:- The old Hindu customary law regarding survivorship in few cases and the following statutes :-

1. Hindu succession Act 1956 with effect from 17.05.1956

2. Hindu gains of learning Act 1930

3. Hindu adoption and maintenances Act 1956

5. Madras Bigamous prevention Act 1937

6. Hindu Marriage Act 1955.

7. Hindu Minority and Guardianship Act 1956.

1. Whether the Hindu customary laws are relevant today?

No. The customary Hindus laws have got a little significance in practical terms apart from the being a stuff for filling Hindu law books and topics of lectures by the so called Hindu law scholars. Because most of the above said laws either abolished or modified in operation. At the time of our independence, there was a stiff resistance from powerful establishments of the society to reform the Hindu law on account of the then prevailing unjust gender order and castestist’s monopoly over the wealth of this nation, The customary Hindu law could not be modified at one go, thus the Hindu Legal system has been tinkered in patches of statues laws in an each passing decade in the pre and post independent India. Yet after 50 years of independence, our parliamentarians have no guts to abolish the Hindu Undivided Family concept, though the Hindu joint family has ceased to exist in most cases now days. It has been used as a ruse to file vexatious litigation to grab the property or bar the free transferability of the property by way litigation claiming the hard earned money as the joint family property.

The Ancestral Hindu Law has got little more significance in agricultural family or the other landed family in which the ownership in property lies with them ever since 1956. In the post independent India as theindividualistic aspirations gained ground, in most subsequent cases the property earned by an individual is treated as his own, no other person during his life time can claim any right therein.

Yet there were some good features in the old Hindu laws system, most outstanding of them giving premium for the labour contributed by the eldest son and his wife to accommodate them in their aged conditions by the younger brothers at the time of partitions in later years. This principle may to be appear good but not in practice the same was used as an excuse for taking extra large in addition to the hidden reserves built by the elder brothers. In most of the cases the control of the family resources by the Karta/Manager ( the father or elder brother) is used to elbow out individuality of the members of the family. The members with modern outlook l would get married from the outside family clan or deprived of their legitimate family resources.

My sincere advise is never to encourage Hindu Joint family properties by entering civil contracts with inadvertent observations suggested by document writers with halfbaked knowledge, The ill conceived documentation is source of litigation in most cases

I would like to call upon my fellow country men to resolve to reform the judiciary so that the law and it`s enforcement is uniform. Unless we undertake massive massive improvement of infrastructure for judiciary, all the so called liberalization measures in post 1991, aimed at eradication of the poverty will be set at naught. The illiterates, infants, housewives , elderly and sick people are living without the protection of law. and amoral law enforcement authorities.The Economic and other obligations, which the society as whole, owes to its individual constituent-weaker sections, are in the state of uncertainty. For your information I would like to place another fact there is no systematic collection and study of social data as to how the Indian judiciary and other law enforcement agencies enforce contractual and other obligations with the aid of law even after lapse of 50 years of independent, highlighting needs various sections of the litigant society. The expert legal body called Law Commission is often used as shelter for the protege-judges of ruling party who would have become physically sick after his retirement, he would get parked himself in the perks of this job not at the task of reforming the law. The Indian society, is touted to have a 9% GDP growth and is a great supplier of the intellectual wealth to the world community, faces acute shortage of sober elements in drafting and enforcing the law. The judges are not informed about the immediate implications of their decisions at any point of time on the economic status of the litigant officially in most of the cases.

In most cases the judges are oblivious of developments in other disciplines, they remained perched in the chairs left behind by the British bureaucracy, Whether you are sick or infirm or your youth is drained in the corridors of the court in Matrimonial and dowry harassment cases, this is all no matter for the Indian Judiciary to have a look at it. It considers your problem as number, which is assigned to your case file. The court of records are bent on maintaining better statsitcs that even if it is at the cost of justice and interest of administration of Justice. If still you do not believe me, please lend me a sum of Rs.5000/= and file a civil suit for its recovery I shall show how much a former helping friend can be tormented with aid of law. The other disease is sensationalism by novel interpretation as done in the Section 14(1) of the Hindu Succession Act unmindful of its implications.

2.What are the ideological features of Hindu Succession Act 1956?

(a) The Hindu Succession Act in a subtle way seeks to bring an end to the concept of joint family property on the death of a Hindu in each case by incorporating the concept of notional partition under Section 6 of the Act.

(b) This Act seeks to place female heir of the deceased Hindu i.e Mother, Daughter, wife at par with son as heir to inherit a share in the individual property of the deceased.

(c) This Act contains overriding effect upon the all other previous laws providing for the different principle enacted or customary or sastric practices in vogue prior to its enactment .

(d) This Act confers the right to individual to execute testamentary document for his share in the ancestral Hindu family vide Section 30.

(e) Many sections of the Hindu laws seek to address the various inequities suffered in the past by way of many catalytic provisions like enlargement of widow estate in Section 14.( State of our legal system -The drawback is that even after the cause for which a legal provision is brought into book ceased to exist, reformatory provisions have been kept alive in perpetuity (Thus I suggest having a sunset clause in the matter of sweeping provisions like this to avoid unintended consequences).Thus causing over effect resulting in injustice to various other sections of the society to whom the earlier cause no where connected with. The judiciary with its interpretative power keeps tampering the letter and spirit of law for each decade but there is no clarion view arises from the straight reading of the law books. You need a separate lexicon evolved in its way by the Indian judiciary to understand what is the personal law governing the so called class of Hindus.)

(d) The Gender Equality is dolled out in a haphazard manner in this Act. For Example Section 6 of Hindu Succession Act talks of notional partition, on the death of the individual, of his interest in the Mitachara ancestral property, for the sake of ascertaining the legal heirs of his share. But the share of a Hindu in the undivided Hindu ancestral property has to be ascertained in accordance with various old customary laws in force in different regions. But the old customary laws in this regard are not uniform and are not fair and just as well.

For example,In Northern India the wife of the deceased coparcener is allotted a share along with the coparcener in the family. While in Southern India, the wife is not allotted any share in accordance with the Dravidian School of Mitachara Law.

Further after the implementation of the Hindu Succession Act the mother who bore the child in her womb is treated as class-1 heir but, the father who in the most cases makes equal contribution towards the growth of the limb and faculty of the child out of womb is ignored, He is clothed with the power to claim maintenance against the Class-I Heirs. He has been placed as Class-II heir to the deceased, Hence he can claim a share in the property only in the absence of Class-I Heirs. I think the principle of gender equity requires that institution of the father can not be placed in a lesser place than that of the mother, thus the same should be placed as class-1 heir. The aforesaid two lacunas are unintended and arise out of the lack of public debate on the working of the Hindu family law.

(e) The Hindu Succession Act in no way tampers or dilutes the authority of the Karta to dispose of the ancestral property till they confer a co-operncenry right on the woman and abolition of pious obligation under Section 6(4) of the Hindu Succession Act in 2005. The previous dated debits and obligations are even now spared the rod of Section 6(4). If so it would be the clever man`s play to antedate all the obligations invented to defraud the daughter of her legitimate right.

(f) The being diseased chronically is ceased to be disqualification for inheritance. He is treated at par with other heirs.

(g) The present Hindu Succession Act in case of death of childless women seeks repatriate her srithan to her own parental line succession. The in-laws of such lady can not get it. vice versa.

(h) The legal heirs of the Hindu do not have any right upon the property, the succession to which is governed by the provisions of the Hindu Succession Act 1956 during their life time.

3. What are the Laws applicable for the purpose of succession on the death of a Hindu today?

1.If a Hindu dies after 17.05.1956 all his personal property will devolve upon his legatee in accordance with his Will, if any or if there is no valid will, the property would devolve in accordance with Hindu Succession Act. A Hindu is empowered under the law to execute a Will bequeathing all the property he or she is capable of selling or otherwise alienating.

2.In case of a Hindu having an interest in Mitakshara ancestral property, his share in the ancestral property would devolve upon his heirs under Hindu Succession Act or in his legatees if there is any valid will in case any of the following class-1 female heir is alive(a) Mother (b)Wife (d) Daughter (f) daughter of predeceased daughter (g) daughter of predeceased daughter of predeceased daughter (h)daughter of predeceased son of predeceased son

3.In case if there is no female heir mentioned in Class- 1 of this Act, if a Hindu having a coparcenery interest in Mitachara ancestral property dies all his property would survive to other co-perceners.

4.What are the purposes of the Hindu statue Laws?

The Article 44 of the constitution of

India

provides for establishment of common civil code i.e. same principle of the law applicable to all the citizens of this country irrespective of caste, creed, culture or religion.

The fragmented Indian society was easily vulnerable to European incursion; thus it is a historical necessity on part of the constitution framers and an essential prerequisite to retain the hard fought independence and economic prosperity of this wealthy nation. The religious and cultural mosaic of Indian society is beautiful for an onlooker but the same should not be a groove to be broken into pieces.

5.What is meant by the word ‘coparcener’ and the coparcenary right?

The coparcener is a member of a Hindu joint family upon whose death his interest in the property would devolve upon the other coparceners (previously male alone) in his own family. In case, if he is not married his coparcenary interest would devolve on other coparceners of the family in which he was a member. A member of the joint family acquires right in the joint family by his birth. The Mitakshara coparcenery was in force in most part of India except in West Bengal where Dayabhaga School of law was in force.

6. Who are the persons covered by the Hindu succession Act 1956:-

According to Section 2 of the Hindu Succession Act, this Act applies to (a) to any person, who is a Hindu by religion in any of its forms or development including a Virashaiva, a Ligayat or a follower of the Brahmo, Prarthana or Arya Samaj.

(b) to any person who is Buddist, Jaina or Sikh by religion and

(c)to any other person who is not a Muslim, Christian, Parsi, or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any the matter dealt with herein if this Act had not been passed.

Explanation adds as follows:-

(a) any child , legitimate or illegitimate, both of whose parents are Hindus Buddhists, jains or Sikhs religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;

7.Whether a tribal community found in the Constitution of India is governed by the Hindu Succession Act?

Yes,However in case of Tribal people are covered by Article 366(25) of the Constitution of India is covered by Hindu Succession Act 1956 unless notified by the Central Government in this regard under Section (2)(2) of the Hindu succession Act.

8.Whether an atheist is a Hindu under this Act?

According to Section 2(3) the expression `Hindu` in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is nevertheless, a person to whom this Act applies by virtue of the provisions contained in this Section.

9.Can a full brother/sister claim the property of the deceased brother to the exclusion of half brother or sister as heir, in case no other better qualified heir is available?

Yes, Section18 of Hindu Succession Act accords preference to full brother to exclusion of half brother/sister.

10.Whether a Hindu can execute a Will bequeathing his undivided share in the ancestral/ joint family property ?

According to section 30 of the Hindu Succession Act an Hindu can execute a will bequeathing all his interest in the undivided joint family.

11.What is meant by Ancestral Property in Hindu undivided family?

The property inherited by male from any of his direct male ancestor upto the three generation, he holds this property subject to a condition that on birth of another coparcener to him this proprietary right to will get diluted to accommodate the new comer. The following are the few formula for ascertaining whether a property is joint family property or not ,

12. what are the ways in which the joint Hindu family character of the properties are ascertained?

a)Mode of acquisition of concerned property- Inheritance from father, grandfather and great father and no other relatives like uncle and maternal grandfather. If the concerned property devolved upon the father or karta on the death of direct lineal ancestor before 1956 ie, example. Agricultural lands, Ancestral House, Jewels of Royalty. (The Gold Control Act was in force till recently which paved the way for acquisition of the golden possessions exceeding the prescribed limit by the authorities under Act. Thus there would be records in any opulent family regarding the acquisition of the jewels in any case, the Woman who uses the jewel is presumed to be owner of the jewel and the Hindu undivided family will have to rebut that proof by establishing that the woman who was using it was a benami for the joint family to claim the same). Further Income Tax returns would clearly reveal the mode inheritance or other wise acquisition of the property.

b) Conversion-The property was acquired out of the funds so inherited from the father or great grandfather or the other Hindu undivided family property was converted into different forms. Example:- selling of the Agricultural lands and purchasing a housing plot or flat out of the proceeds of the sale of the ancestral property. Readers are also requested to bear in mind, in case of the properties bought from the Co-operative Bodies and housing societies, it is irrebutably presumed under the concerned laws that the property was individual property of the allottees, Hence in those cases this concept of the conversion will not be applicable.

c) Blended with HUF Property- If the property was acquired by the individual (not being a person less than 18 years of age)on his own labour and resources without the detriment to the joint family property, but subsequently it was used so blended with the joint family properties that the original ownership of the individual is replaced by the ownership of the joint family.

Example:- purchasing the housing site in his own name and allowing his brothers to build a house there and paying taxes in joint family name. The court, in case of dispute will look into facts for ascertaining whether the man who bought the property allowed other members to claim title in the joint family by altogether wiping of the original title of the original acquirer.

d) In case of Wills- Intention of the testator, if it was intended by the testator to bequeath in favour of Hindu joint family. Then the property would be deemed to have been inherited by it.

13.Whether a Karta can gift away/ settle an ancestral property in favour of any person?

The Karta /Manager does not have unqualified power to dispose of the Hindu undivided family property as gift except for the spiritual purpose. The marriage and settlement of daughter is one of the accepted purpose. The amount of property so disposed must be reasonable. Then again what is reasonable limit is debatable. For further reference see 2002(4) CTC210.

14.Whether property standing in the name of Karta or any other coparcener is liable for partition?

It is only the joint Hindu family property which is liable for partition, However in cases of self acquired property being thrown into common hotch pot or being a benami in such cases the concerned property will also liable for partition.

15.Whether house built at the land bought by the father is liable for partition in case of partition of the undivided family ?

No , a house built at the land bought and built by the father out of his own salary is not a joint family property unless it could be shown the joint family property depleted or diminished in building the house.

If the joint family property was incidentally used without any detriment to its value in building a own house, that will not convert the self earned property into a joint family property.

Example:- If the joint family property was used as the collateral security for borrowing an housing loan. But the entire loan was paid by father out of his own earnings. Then the house will not become joint family property.

16.Whether a daughter is entitled to a share in the joint family property ?

1.If the Karta dies after 9.09.2005 all the daughter are entitled to a share equal to the son`s share. The aforesaid amendment is brought into force by Hindu Law Amendment Act 39 of 2005. The sale or alienation taken before that period will not be affected under no circumstance. In case some of the joint family properties were already disposed by the karta for his antecedent debit, the daughter`s claim under the Hindu Law Amendment Act 2005 will not be affected by it.

It would be suitably adjusted in the property in the hands of the joint family. If the other male members of the family are in the process of liquidating the joint family property. Because the daughter, who is a coparcener in the property acquires the share by birth.

Even prior to some of the State Legislatures have passed laws granting equal status to the woman as detailed herein under. Those living in this states are governed by this amendments. In case of following states the girl remaining unmarried on 25.03.1989 is entitle to coparcenery status on the crucial date

1.In case of the State of Andhra Pradesh – if the partition takes any time after 5.09.1985

2.In case of the state of Maharastra – if the girl gets married after 22.06.1994

3.In case of the State of Tamil Nadu – if the girl gets married after 25.-3.1999

4. In case of the State of Karnataka – if the girls is married prior to 30.07.1990

How ever under Article 246(2) of the Constitution Law enacted by the parliament will prevails over the law enacted by the state legislature in the matters found in the Concurrent list of the Constitution of

India

. Thus the Hindu Law Amendment Act will prevail over every inconsistent state legislation.

17.Who are the persons entitled to share the ancestral property at the time of partition?

The all grandfather , son, grandsons are called coparcener under customary Hindu Law however the aforesaid state amendments have clothed the daughter of the Hindu with co-opercenery right with from the respective dates. Now from 09.09.2005 onwards the daughter is also entitled to a share and other legal rights equivalent to a son in the joint Hindu family if there was no prior partition by the way of registered deed or by a court decree.

18.If a Hindu dies leaving behind his wife and son? What is the legal relationship between the mother and son/sister as far the properties of joint Hindu family and individual properties concerned?

According to Section 19 of the Hindu Succession Act they are living as tenants in common. Not as joint tenant Hence one person`s action will not bind on other unless the person doing the act has been authorized it. The Karta of the family being on one of the heir of the deceased member of the family, as such has no authority to bind the co heirs of the deceased.

19.Whether the widow of deceased member of the family bound by the obligations incurred by the joint family:-

The Section 6(4) of the Hindu Succession (Amendment) Act has abolished duty of the coparceners to pay the debits incurred by the father , grandfather and great father. But a provio to Section 6(4) clearly provides that in case of the debits incurred before the commencement of this Act on 09.09.2006 the same would have to be enforced as if the Act was not passed at all. It is to be noted that the doctrine of the pious obligation, under which the coparceners were bound to honour the debits incurred by the father, grandfather or great grand father, was used as devise the cheat the many daughter`s who were granted equal rights under the law. But there net claim was reduced or diluted by the fraudulent or biased exercise of powers by the Karta. That is because only the doctrine of pious obligation has been abolished. Hence any interpretation of law should be such as to address the mischief the intended to be addressed. If the pre Amendement Act 39 of 2006, the debits incurred by the father or grandfather or great grandfather and discharged by alienation of the joint family property, are allowed to be taken into consideration for the purpose of partition after the amendment Act 39 of 2006 has come in to force. There is every likely hood of the predated claim again to dilute the share of the daughter and defeat the purpose of the Act 39 of 2006. Thus the interpretation which give takes into account the share of the daughter or the son in the properties which were already disposed for paying pious obligation should also be taken into account while deciding quantum of the claim of the dauther. However the matter requires a judicial pronouncement on this aspect for sake of clarity.

20.Whether Child in Womb has any status in Hindu Law?

According to Section 20 of the Hindu Succession Act for ascertaining class of legal heir, the child after its birth will be counted as a legal heir. Hence till it’s birth partition can not be carried out.

21.Alienation of the Ancestral propery?

The ancestral property can be sold or otherwise disposed for the any purpose other than the purposes described as immoral under the sastric law. The said immoral purpose is called Avayavaharia ( immoral )purpose. Some of enumerated immoral purpose are womanizing or debits incurred by alcoholism. When the alienated by the father-karta the presumption is that alienation was for good purpose. Earlier the alienation by the father to pay off previous debits were justified under the doctrine of pious obligation. But the Hindu Law amendment Act 2005 has abolished the doctrine of pious obligation. Thus the subject matter require fresh view by the courts.

22.Whether a greedy son, who killed his father for taking father`s property, is entitle to succeed?

No, the killer of the deceased is not entitle to succeed in accordance with this Act, but he will be treated as predeceased for the purpose of succession and his son or daughter or widow will entitled to succeed to property the deceased in accordance with law. They will get what the killer would have got allotted any share had he not disqualified.

23.Whether AIDS or other deadly decease disable a hindu from inheriting?

As per Section 28 of the Hindu Succession Act No person can be disabled from being heir under this Act on the basis of any disease

24.Whether Life policy assured amount is liable partition?

According to Insurance Act, the sum assured is payable to heirs of the deceased policy holder equally.

25Whether an Hindu who earns income out of traditional medicine practice learnt from his father, should put his earning in the common pool for partition?

According to Hindu gains of learning Act 1930, Section 3 income derived out learning is not to be treated as joint family property.

26.Who are the class-I heirs as the Hindu Succession Act 1956?

Son; daughter: widow, Mother, son of a pre-deceased son, daughter of a predeceased son, son of a pre-deceased daughter, daughter of a pre-deceased daughter, widow of predeceased of predeceased son, son of a predeceased son of a predeceased son; daughter of a predeceased son of predeceased son; widow of a pre-deceased son of a pre-deceased son; son of a predeceased daughter of a pre-deceased daughter, daughter of a predeceased daughter; daughter of a predeceased daughter of predeceased daughter, daughter of a predeceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son

27.Mode of division among the Class-I heirs?

All the aforesaid class-I legal heirs are entitled to exclusion all other relative a share equal in all respect in the property of deceased,

28.Who are the Class –II heirs? In what order they entitle to priority?

I.Father

II.(1) Son`s daughter`s son (2) son`s daughter`s daughter (3) brother (4) sister

III(1) Brother`s son (2) Sister`s son (3)brother`s daughter (4) Sister`s daughter

IV.(1)Brother`s son (2) Sister`s Son (3)brother`s daughter (4) sister`s daughter

V.Father`s father, Father`s mother

VI.Father`s Widow (not mother), brother`s Widow

VII,Father`s Brother, Father`s sister

VIII. Mother`s father, Mother`s mother

IX.Mother`s Brother; Mother`s sister

In this class brother does not mean uterine brother nor does uterine sister

The persons in the found in the same entry is entitle to equal share and the persons found in subsequent entries not entitled to any share in case of existence of persons in the prior entries. However if any class-I heir is alive none of heirs in the class-II heirs are entitled to any share.

29.The Pattern of Inheritance to the properties of a Hindu woman:-

The inheritance of the Hindu woman is also governed by both Hindu Succession Act and Indian succession in case, concerned person has executed a valid Will.

In regard to woman the Hindu Succession Act has got different principles to apply on the basis of source of the property and descendants of hers.

Broadly there are three categories of the Hindu women at time of her death:-

a)A Hindu female with child on the date of her death.

b).A Hindu female without a child but the concerned property was inherited by her from her father or mother

c).A Hindu female without a child, the concerned property was inherited by her from her father in law and husband.

When a Hindu female dies leaving behind a child and husband the property will devolve upon them in the first instance. In case there is no child and the property was not property inherited from father in law or husband or father or mother, it would devolve on the heirs of the husband i.e class -1 or II heirs as living on the date of her death. In the absence of the heirs of the husband upon the father and mother, no father or mother is alive upon heirs of the father or if heirs of the father is not alive upon the heirs of the mother.

For example :- `A` a government servant dies leaving behind her husband , all her Provident fund will be paid to her husband and her children. If no there is no child or husband is alive, but mother of the husband is alive she is entitle to the share. For this purpose the husband would be assumed to have died on last breath of the `A`. Again all the Class-1 heir of husband will be entitled to property to exclusion of any other.

But if none of the Class -1 heir of the husband is alive, that mean the couple had no issues and the mother-in-law of the deceased lady is was died before her death, Under those circumstance the Class-II of heirs of the deceased husband will take. Here again if there are two of the `A` ‘s husband’s, one of the brothers is already dead and one alone is alive, that living person will alone inherit the estate of the `A` but not sons and daughters or wives of predeceased brother, who would be excluded from it.

When the property was inherited from her father or mother it would devolve upon the heirs of the father. For example Stridhana given at time of the marriage of woman would be treated as though she had inherited from her father. None of the `in-laws` would be entitled to it.

In case of a female, the property was inherited from husband or her father in law, the property would devolve upon the heirs of the husband in case of absence of the heirs to the husband property would be es cheated i.e stand vested with concerned state Government, if there is no heirs the property would be es cheated but it will not go to father or mother of the deceased female.

Illegitimacy or children of polygamous marriage

For the purpose of inheritance of the Hindu female, illegitimate son or daughter will be treated on par with the legitimate son or daughter and sons and daughters born to different husband will be treated equally. AIR1987SC1616

30.What are the properties, a Hindu Widow can give by way of a will to her chosen heir?

1.A Hindu Woman can gift or settle or execute will bequeathing her self earned properties absolutely.

2.Simillarly a Hindu Woman who takes property on her succession to the properties of any her deceased relatives can dispose of that properties by way of will or gift.

3. under Section 14(1) of the Hindu Succession Act in case of Hindu woman, who was given just a life estate without there being any other inheritance absolutely either through will or otherwise from the properties of the deceased husband or father or son or any one who was under the law bound to maintain her. The terms of the will was intended to feed the obligation of maintenance. Then any life estate granted to her would enlarge into a full property. Hence she can under those circumstance sell or gift or bequeath by the way of a Will.

4.A Hindu female who gets any property on account of the legislations for conferring her with the right of co-opercenery right, the property would devolve in accordance with her will or Sections 15 and 16 of the Hindu Succession Act .

31.The Hindu succession Act and right of a eunuch? The Hindu succession Act does not recognize any sex other than male or female. In case of eunuch, the estrogen count will decide whether concerned person is male or female. His or Her share will be decided accordingly.

32.What are the powers of the Karta/manager of the Family ?

1.In cases governed by the Mitashara law, a father may sell, or mortgage not only his own share but also the shares of his male issue in family property, for the purpose of satisfying antecedent debts of his own, not incurred for any family necessity or benefit provided they are not immoral or illegal and sale or mortgage may be enforced against his sons by a suit or even in proceedings in execution to which they are not parties.

2.Whether the sale or mortgage passes the father`s interest only, or the entire interest of both father and sons in the property sold or mortgaged, depends upon the intention of the parties, to be gathered from the instrument of sale or mortgage and from surrounding circumstance

3.A creditor may enforce payment of the personal debt of a father, not being illegal or immoral by attachment and sale of the entire interest of father and sons in the family and it is not absolutely necessary that the sons should be parties either to the suit itself or to the proceedings in execution.

33.Doctrine of pious obligation abolished ?

Yes, under Section 6(4) of the Hindu Succession Act as in force from 09.09.2005, If the father or Karta of the family borrows money for his own, the same will not bind on the son or grandson under no circumstance. But Earlier if any debit was contracted by the father or grandfather of a coparcener, He/She would be liable to pay the debits to extent of the joint family property, the junior coparcener was entitled.

34.What is enlargement of Hindu Widows restricted right under Section 14(1) of the Hindu Succession Act:-

Before or after the commencement of this Act if the Hindu woman was entitled to maintenance, she was bequeathed some property with view to feed the obligation created by Law of maintenance or the sastric law having the force of law as on the date. Thus any restriction on women from alienating the said property would be void and the widow in whose favour the life estate was created, was entitled to it absolutely.

Please note that It is Section 14(1) of the Hindu Succession Act deploys the following language:- any device – thus any form alienation including the will is interpreted to have covered. But Section 14(2) says that those property given a will not be governed provision of Section 14(1) of the Act. Thus net effect is, if the properties were given in the will by the way maintenance the same would fall into Section 14(1) of the Hindu Succession Act.

Please also note:- before 21.12.1956 i.e commencement of Hindu Adoption and Maintenance Act 1956 a Widow, widowed daughter, mother, were entitled to automatic maintenance, now they would barred by Section 22(2) Hindu Adoption and Maintenance Act from claiming any maintenance, if they have inherited any thing either by way of will or non- testamentary succession. Under Those circumstance the limited estate will not enlarge under Section 14(1) of the Hindu Succession Act 1956.

35.Whether a daughter of a family which has it`s orgin in any of states like Tamil Nadu, or Andra Pradesh or Maharastra in which the State Amendments conferring the rights equal to a son i.e coparcener, can claim the benefit of the amendments if the family has been living in some parts of India or elsewhere where no such amendment was in force?

Yes, Normally it would be presumed every migrant family is governed by the customary and statute Laws in forces in the state from where they had migrated. But this presumption may rebutted by cogent evidence regarding change of choice of personal law by the family.

For example, if an family from Tamil Nadu settles down in the central administered territory of Delhi and the landed properties bought over there was joint family properties, the any daughter was not married on 25.03.1999 would be entitled to an equal share with that of the co-oparcener, though the it is Tamil State Legislature which passed this amendment,

However after 09.09.2005 it is only the Hindu Amendment Act 39 of 2006 (Central Act ) will alone govern the rights of the parties. All the Amendments brought in Hindu Succession Act various State Legislatures stand repealed now.

36.If Karta of the Hindu undivided family misappropriates the resources of the joint family what is remedy available under the law?

The only remedy available in the law is a suit for the partition. No criminal or civil proceedings could be initiated. In some cases, the client were advised to file a suit for bare injunction restraining the Karta to save court fees. Since alternate efficacious relief of partition is available, no equitable relief can be granted.

whether a daughter having married before March 31,1989 can claim equal share against her brother in a pending partition suit as on the date of implementation of Act 2005?( In Tamil Nadu context)
as per the law once notice of partition is issued the family is no longer a joint one. The partition deemed to have take place from the date expression of intention to get separate share by a coparcener

The Amendment Act 2005 is not applied by the court to cases pending even before 2005 December. Hence there is no question granting the daughter a right to reopen the partition which has already taken place. The earlier partition can not be reopened.

ஹிந்து வாரிசு உரிமை சட்டம் 2005 கீழ் 31 மார்ச் 1989 திக்கு முன்பு திருமணம் ஆனா பெண் தனது தகப்பனார் வலி பூர்விக சொத்தில் பங்கு கோரலாமா?

ஹிந்து வாரிசு உரிமை சட்டம் 2005 நீதி மன்றம் சட்டம் அமுலுக்கு வந்த நாளுக்கு பிறகு தாக்கல் செயப்படும் பகப்ரிவினை மட்டுமே கடைபிடிக்கும் அதைற்க்கு முன்பு செயப்பட்ட பாகபிரிவினை அது கட்டுபடுத்தாது.
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ஹிந்து வாரிசுரிமை சட்டப்படி அணைத்து வாரிசுகளுக்கும் சமாக பிரிக்க வேண்டுமா ?
பொதுவாக தாய் மகன் மகள் மனைவி இறந்த மகனின் குழந்தைகள் மகளின் குழந்தைகள் ஆகியோருக்கு சமாக இறந்தவரின் சொத்தில் பங்கு கொடுக்க வேண்டும் .ஆனால் பொது குடும்ப சொத்துகளை பொறுத்தவரை அதன் உறுப்பினர்கள் ஏதேனும் கடன் வாங்கி அது பொது குடும்ப சொதுகலீல் கட்ட்பட்டால் அந்த தொகையை அவரது கழித்து பாக்கி பணம் மட்டுமே கொடுக்க முடியும். அந்த உறுப்பினர் நொடித்தவர் (Insolvent ) ஆகிவிட்டாலோ அல்லது அவருக்கு கர்த்தா உறுதி கொடுத்திருந்தாலொ இந்த வாய்ப்புகள் அதிகம் .

37.What if the father is declared as insolvent ?
If the kartha of the family is declared insolvent all his properties vests with the officer of the court namely official assigee at Mumbai, Chennai and Kolkatta or Official Reciver in other places.

38.What is there is surplus after the discharge of insolvent fathers Debit?
This question requires proper legal consultation from a legal expert setting out all facts and circumstance of the Cases. However the main principle is the persons who borrowed or who was liable for the debit for which the insolvency was brought about would not get equal rights with that of the other coparcerners (sharers) including his infants (both male or female). The debit paid shall be deducted into his share. But the proceedings for his discharge from the status of Bankrupt was initiated the adverse coo-sharers would have to intervene in that matter for that purpose to avoid unnecessary complications in hands unscrupulous sharers i.e karta. Further you would be required to advised your interest which the Bankrupt represented in any unregistered partnership firm visa or incase of karta being guarantor different proposition would involve. Hence please call your advocate.

39.What about the share of the Minor son or daughter in case of insolvency of the father?
Upon the father or grand father being declared insolvent for the debits occurred after the birth of the child, the share of father or grandfather alone came to vested with official Receiver or official assignee, but due to operations of Section 26A of the Provisional Insolvency Act, the said Receiver or Official assignee as the case may be will have right to dispose of the shares of minor son or daughter for discharge of debits of his father or grand father. If they liquid assets meets the liability of the insolvent or proceeds of some part of the property could meet all the liabilities of the Insolvent then the official receiver or official receiver can not claim any right to sell the properties of the minor

40.What if the father stands as guarantor for loan borrowed by the Paternal Uncle or grand father and both of them are declared insolvent
if the share of the father or grandfather has to be suitable reduced if there is sufficient balance or the minor son has to apply for the partition of the joint family and get the right to claim the shortage of appropriated amount from the defaulter.

41.What is if the father borrows money from a Financial Institution which proceeds under SARFASI Act?
The legal position is prior to introduction of the Hindu Law amendment Act 2005 the son is liable for the payment all debits which are not immoral but incurred by father, But the same came to abolished from November 2004 , Hence for those matter a suitable petition for intervention can be filed before the Debit Recovery Appellate Tribunal. who would exempt the share or order suitably to cover only share of the father in the proposed proceedings.
42.What form of action is advisable if the proceedings under SARFASI was initiated against property the father or karta of the family? It depends upon the case if the property is only one and the same then you have to approach the DRT concerned . If there are several and you can adjust the value of share in property distressed against other the partition suit advisable. Generally once you file civil suit in matter relating SARFASI it would look like that you are acting at behest of the defaulting debtor. Hence you would not be given any interim relief like Injunction or appointment of receiver. Further legal no injunction can be granted against the Authorized officer under Specific Relief Act since the alternate efficacious relief is available Thus interim stay also ruled out on merit.

43.Whether a person who incurred debit some years ago and caused the joint family to pay the debit out of its resources is entitled to equal share?
No, the amount of money already parted in non-voluntary basis may be deducted from his share.

Whether any person whose parents having left joint family at previous generations or who received strithana during their life can claim share under the Amendments pertaining to Hindu Succession Act ?
If any one leaves the joint Hindu family for twelve years can not claim any right over the joint Hindu family. But the law relating to drafting and valuation of civil suits in Tamil nadu really creates confusion that unless the person is proclaimed to be ousted it is presumed that he remains in joint possession of the family property. This situation creates some impression upon the mind or this situation is used by unscrupulous persons to middle with administration of the property. I shall deal with subject in matters relating to abuse of law later in this blog
44. what if the father is cultivating tenant whether his agricultural tenure can be included in the joint family properties?
The Right of protection available to cultivating tenant is not inheritable right thus the same can not be included list of property available. Those heir who contribute their muscle power to the cultivation can claim same protection of the deceased tennat

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