Gift/Hiba

I] INTRODUCTION

Transfer of property by way of gifts is dealt with the Transfer Of Property Act, 1882. but this
does not apply to Muslim Law. Hiba is a gift under Muslim Law but it is not governed by the
Transfer Of Property Act. gift in simple terms is transfer of property made voluntarily by one
person called donor to another person called donne.

II] HIBA

Gift is also understood as the English equivalent of 'Hiba'. Hiba is nothing but a Gift. It can
be defined as 'the donation of a thing from which the donee may derive a benefit.' It can also
be termed as transfer of property without any consideration. Fyzee defines it as an immediate
and unqualified transfer of thee corpus of the property without a return. According to Baillie
its conferring of a right of something specific without an exchange.

Any Muslim can make a gift of his property or dispose of the whole of his property, but he
must be a major and of sound mind. In ordinary cases, 18 is thee competent age to make a
gift but in cases where the guardian has bee appointed by the court, 21 is the competent age.

A female is also competent to make a gift as there is no discrimination on grounds of sex. Her
marital status is immaterial. In order to make a valid gift the donor must be th owner of the
property ans subsequently he must divest himself of the ownership and must deliver thee
property to thee donee. One of the essentials conditions of a valid gift is the immediate
delivery of the possession of the property. It would be void if it is operative on some future
date.

A gift can also be revoked either with the consent of the donee or in the absence of his
consent or by decree of the court. Only the donor has the right to revoke and it cannot be
exercised by his heirs.

III] KINDS OF GIFTS (HIBA)

There are four kinds of gifts under Muslim Law.

1) Sadaqah
2) Hiba-bil-iwaz
3) Hiba-ba-shart-ul-iwaz
4) Ariyat

1) SADAQAH

Unlike simple gifts Sadaqah is a gift with a religious motive and is irrevocable. It need not be
expressly accepted by the donee. One of the mandatory requirements of a valid Sadaqah is
delivery of possession. Sadaqah can be made to two or more persons jointly.

2) HIBA-BIL-IWAZ
Hiba-bil-iwaz has two basic elements;

(a) A bona fide and voluntary ontention on the part of thee donor to make the gift and to
divest himself of the complete rights over the property and vest it in the donee

(b) Payment of consideration by the donee.

Hiba-bil-iwaz consists of an element called 'iwaz' or exchange. Its an independent gift in

return of the first gift. Therefore, these are two different gifts wherein the parties are same but
the donor in one gift becomes the donee in another. Hiba-bil-iwaz also has elements of
contract of sale because the requirements are such that the parties to the contract must be
competent, there should be offer and acceptance and there must be consideration as well.
Hiba-bil-iwaz has to be effected with the help of a written, attested and registered document,
where the consideration is more than 10 Rs.

3) HIBA-BA-SHART-UL-IWAZ

Hiba-ba-shart-ul-iwaz is a gift which is made with a stipulation (shart) for a return from side
of the donee. It includes all the essentials of a valid gift and once the stipulation is fulfilled by
the donee it takes the character of Hiba-ba-shart-ul-iwaz. Until the stipulation is fulfilled the
gift is revocable. Payment of iwaz makes thee gift irrevocable.

4) AIRYAT

There are 4 essentials of Airyat

i) It can be revocable
ii) It must be transfer of ownership in the property
iii) It must be for a definite period.
iv) It does not devolve on the heirs of the donee on his death Airyat is nothing but the grant of
a licence, right to enjoy the usufruct in a specific time or period and it is revocable at the
option of the granter.

IV] ESSENTIALS OF GIFT

The gift to be valid and complete three conditions are to be fulfilled. The very first condition
being; the donor must make an offer i.e ijab, the same must be accepted by the donee i.e
qubool and the possession of the property must be subsequently delivered i.e qabza. If these
conditions are fulfilled then it is a valid gift. Following are the essentials of a valid gift.
1) Declaration by the donor.
2) Acceptance by thee donee
3) delivery of the possession.

1) DECLARATION

According to the Supreme Court 'declaration' is precondition of the validity of a gift. The
donor must voluntarily declare the offer to make a gift. The gift would be voidable at the
option of the creditors if the declaration is tainted with a fraudulent motive on the part of the
donor. There has to be real and bona fide intention. The declaration has to be made in
presence of some witness.
2) ACCEPTANCE

The offer to make a gift must be accepted by or on behalf of the donee. Under Muslim Law
the Guardian is entittled to given acceptanc on behalf of a minor or a person of unsound
mind. He can even appoint a guardian. If the father is alive, he happens to be the sole
guardian of the property of the minor; after the father comes the executor appointed under his
will, parental grandfather, his executor appointed under his will.

In certain cases, where there are no guardians and the minor is under the care and protection
of a person other than guardian such person can accept the gift on behalf of the minor. In case
of a minor girl who is married and has been living with her husband after obtaining puberty
theen the husband can validly accept the gift on behalf of her even in thee presence of her
father.

3) DELIVERY OF POSSESSION

One of the essentials of a valid gift is that it should be subsequently delivered to the donee.
The gift is not valid unless accopanied by the delivery of possession. This is how it
differentiates the gift Under Muslim Law and the gift under Transfer Of Property Act,1882.
No emphasis is laid on immediate delivery of possession Under TheTransfer Of Property Act.

The owner should thereby divest himself of the ownership and give complete control of the
property to the donee. If it is a movable property then he must deliver thee possession and if
it is an immovable property then he should:
a) Vacate the possession along with all his belongings that would signify his relenquishment
of total control and
b) Put the donee in possession.
 Partition
I] INTRODUCTION

Partition is division or splitting of a Hindu Joint Family which brings the life of a coparecenar
to an end. According to Mitakshara School; partition means two things;
i) Severance of status or interest. ii) Actual division of property in accordance with shares so
specified, knowns as partition by metes and bounds. According to Dayabhaga school of
Hindu Law; partition means only division of property by metes and bounds. For partition to
take place at least two coparcenars are required.

II] SUBJECT MATTER OF PARTITION

Only coparcenary property can be divided on partition. A separate property cannot be

subjected to partition. To determine what property is available for partition following
provisions must be made for joint family debts;
i) Personal debts of father not tainted with immorality.
ii) Maintenance of dependent female members and of disqualified heirs.
iii) Marriage expenses of unmarried daughter.

III] PROPERTIES NOT CAPABLE OF DIVISION

There are certain properties that cannot be divided due to their very nature, such as books
clothes, ornaments or household appliances, kitchen utensil, furniture etc. Such properties are
in capable of division. It has been stated by Vijneshwara in his Smriti that water or reservoir
of it, a well cannot be divided but it is to be used in turns. For example; the common way or
staicase, well etc. are not divisible. The Smritikars were of the view that the dwelling house
should not be the subject of partition. In Nirupama v. Baidyanath, with respect to the
dwelling house the court held, "the effort shall be to effect an arrangement which will leave
the house entirely in the hands of one or more coparceners or kept for common use. It is a
general rule that 'if the property can be partitioned without destroying the intrinsic value, a
money compensation should be given instead of the share which would fall to the plaintiff by
the partition.' There are certain methods available for adjustments; namely;
1) Some of the properties may be enjoyed by the coparceners jointly or in turns
2) Some of the property allotted to the share of a coparcener and its value adjusted with the
property allotted to other coparceners.
3) Some of the property may be sold and their proceeds distributed to other coparcenes.

IV] MODES OF TAKING ACCOUNT

There are certain principles with respect to mode of taking account for partition of property;
1) No coparcener is entitled to call upon the manager to account for his past dealings and
with a joint family property unless he establishes a fraud, misappropriation or improper
conversion.
2) It was held in Abhay chandra v. Pyari Mohan; no charge is to be made against any
coparcener because a large share of the joint income was spent on his family in consequence
of his having a lager family to support. Similarly no credit to be given to any coparcener
because a smaller share of the income was spent on him and his family.
3) A coparcener who is entirely excluded from the enjoyment of family property is entitled to
an account of the income derived from the family property and to have share of the income
ascertained and paid to him.In other words he is entitled to what are called mesne profiit.

V] PERSONS ENTITLED TO ASK FOR PARTITION

Partition is the division of thee coparenary property by metes and bounds. Therefore, the
coparceners have the right to demand a partition and every coparcener is entitled to have his
share. Following are the persons entitled to ask for partition;

1) Father:

A father by virtue of his right as a patria potesta, can make partition not only among himself
and the sons but also the among the sons inter se. The father must allot equal shares to all of
his sons. It is an absolute right of the father to make partition and the consent of the sons is
immaterial. The partition is binding on the sons unless it is avoided or rescinded expressly.

2) Son, grandson, great grandson:

Son has unqualified right to partition under Mitakshara School.

3) Son born after partition:

A son who at the time of partition was in his mother's womb and is born alive subsequently,
is treated as if he existed during partition. If he has been left no shre then he can demand re-
opening of the partition. Manu opines , ' the after born son can get share only in his father's
share.

4) Adopted son:

A valid adoption entitles a male child to become a member of a joint family. He also has right
to partition and equal share as well. According to Dayabhaga Law,"an adopted son as
compared to after born natural son, he takes one third share, in Bombay and Madras one fifth
share, and in Baneres one fourth of the share of the latter. The laws relating to adoption has
been modified by the passing of Hindu Adoptions and Maintenance Act, 1956. It has been
clearly laid down by the Act that there is no difference between the rights of a natural born,
legitimate son and an adopted son. He can not onlu demand partition but also have equal
share to that of the natural son of his adoptive father.

5) Minor coparcener:

A minor coparcenar, unlike the major coparcenar cannot demand partition from the father or
the karta, but this however, does not mean that the partition will not be effected at his
instance. In certain cases, where a father may act in such a manner that may adversely affect
the minor's interest, then a minor can file a suit for partition against the karta, through a next
friend. The court acts as a parens partriae in such cases.

6) Alienee:
A non-coparcenar does not have right to demand partition, but there's an exception where the
share has been alienated by an undivided coparcener, in states where he is allowed to do so,
then the alienee can demand partition. An alienee does not have right to to have a joint
possession of the property as he is a stranger to the family. Such partition will not have any
adverse effect on the status of rest of the coparcener. Under Mitakshara schools such an
alienee can file a suit of partition in a court of law.

VI] MODES OF PARTITION

1) Partition by agreement:

If all the coparceners decide to destruct their joint status, it is called as a partition by an
agreement. This need not be in writing. From the date of singining the agreement, the
severance of the status takes place. The shares allotted to the coparcener in partition by
agreement need not be equal. However, it does not mean that the share can be unjust, unfair
or can affect the interests of the minor. But, every member will have specific definite share in
future.

2) Partition by arbitration:

An arbitrator is appointed by the coparceners, who divides the property by metes and bounds.
The Bombay High Court in Shantilal Mewaram v. Munshilal Kevalra, AIR 1932, Bombay
498, held that, a father referred a family dispute to an arbitrator whereby, the arbitrator passed
an award directing the partition effects a severance between the father and the son from its
date. In Kamal Singh v. Sekkar Chand, AIR1952. Cal 447, The court held that the partition
must be for the benefit of the minor. Otherwise it will not be binding on him.

3) Partition by will:

When the coparceners make a will which contains a clear and unequivocal intimation of their
desire to sever themselves from the joint family is known as partition by will. In Potti Laxmi
v. Potti Krishnamma, the Supreme Court observed,"where there is nothing in the will
executed by a member of Hindu coparcenary to unmistakably show that the intention of the
testator was to separate from the joint family, the will does not effect the severance of the
status."

4) Marriage under Special Marriage Act, 1954:

If a coparcener gets married under the Special Marriage Act. 1954 then it automatically
causes the severance of th status and he is no more a coparcener but is entitled to receive his
share.

5) Partition by suit:

Partition can be effected by the institution of suit which is an unequivocal intimation of the
intention to separate and subsequently the severance of the status takes place. A son can file a
suit for partition as he is fully eligible. The suit is filed in the Competent Court to try the
same. In case of an agricultural land the decree is sent to the Collector for execution.
VII] RE-OPENING OF PARTITION

According to Manu, "once is the partition of inheritance made, once is damsel given in a
marriage, and once does a man say 'I give', these three acts of good men are done once for all
and are irrevocable. " Thus partition is generally irrevocable. But, there are certain exceptions
wherein the re-opening may be advisable. Following are the cases where the partition can be
re-opened:

1) More property is added after partition:

The partition can be re-opened in cases where some properties are discovered subsequent to
the partition. If there is concealment of the property or property left out by mistake then it is
advisable that a new partition should be made. But, if the additional property can be
effectively distributed among the members then earlier partition need not be re-opened.

2) Property concealed by fraud by a coparcenaer:

At the time of partition if any property is concealed fraudulently with an intention to gain
advantage over others or for bigger share, then the partition can be re-opened on discovery of
such fraud.

3) Partition unjust or unfair to minor:

It is the duty of the court to protect the interest of the minor. If the partition effected earlier
was unjust or unfair towards any minor then the court should allow such re-opening.
 Wakf
I] INTRODUCTION

'Wakf' in simple terms means 'detention' of a property and whatever income earned out of it
shall be available for religious and pious purpose. It is nothing but dedication of property
either movable or immovable. This can be done by a person professing Islam. Such a
property may include:
1) A 'wakf' by user but such wakf shall not cease to be a wakf by reason only of the user
having ceased irrespective of the period of such seizure.
2) 'Grant 'including mashrut-ul-khidmat for any purpose recognised by the Muslim Law as
pious, religious or charitable.
3) Wakf-alal-aulad to the extent to which the property is dedicated for any purpose
recognised by Muslim Law as pious, religious or charitable and Wakf means by person
making such dedication.

II] WAKF

A Wakf Board was constituted by the State of Maharashtra in the year 2002. The Head-
Office is at Panchakki at Aurangabad. It consisted of not less than 7 members and more than
13 members. Some are elected and some are nominated by the majority elected members.
Wakf in legal sense is dedication in perpetuity of a specific property for a pious purpose or
succession of pious purpose. It is irrevocable and once created, the ownership of Wakif is
extinguished. It may be either testamentary or inter vivos. A testamentary Wakf comes to
effect on death of the Wakif and it may be made verbally or in writing. A Wakf, under Hanafi
law is unilateral declaration whereas under Shia Law it is a bilateral contract. Therefore,
under Hanafi Law a Wakf may be created inter vivos by a mere declaration whereas, under
Shia Law a mere declaration is not enough. There has to be a delivery of possession. Once
the Wakif declares himself to be a Mutawalli, his possession is shifted from an owner to that
of Mutawalli In case of an immovable property of Rs. 100 and above, a wakf is created by
writing and it is compulsory that thee wakf is registered as per the provisions of Indian
Registerstion Act.

III] ESSENTIALS OF WAKF

There 5 essentials of a wakf according to Hanafi Law:

1) Permanent dedication of property
2) The Wakif must be competent
3) The Wakif must be the owner of the property
4) The object must be religious
5) It must be unconditional

1) PERMANENT DEDICATION OF PROPERTY: The very first essential being permanent

dedication of the property to charitable, religious or pious purposes. The property may be
either movable or immovable and the ownership must be extinguished.

2) THE WAKIF MUST BE COMPETENT: One who dedicates the property of a valid Wakf
must be,
a) A person professing Islam.
b) Of sound mind
c) Not a minor If a widow and her sons make a dedication of their inheritance, the wakf is
held partially valid.

3) WAKIF MUST BE THE OWNER OF THE PROPERTY: Property being the subject
matter of the wakf must belong to the dedicator at the time of dedication. Even if the property
is subjected to lease or a mortgage a valid wakf may be made.

4) OBJECT MUST BE RELIGIOUS: There must be an object which;

a) must not fail
b) must be expressly set forth
c) must be recognised by Muslim Law as religious, pious or charitable

5) UNCONDITIONAL: The Wakf must not be subject to any options. It must be

unconditional. # Following are the essentials of a valid wakf under Shia Law:
a) It must be perpetual
b) It must be absolute and unconditional
c) possession of the property must be given
d) the wakf must not retain any interest in the property

IV] MUTAWALLI

'Mutawalli' is the manager of the Wakf. All the rights of the property are vested in the
Almighty as soon as the Wakf is created. The settlor usually appoints the Mutawalli and if
not, then by the
i) founder
ii) executor
iii) the court A minor or a person of unsound mind cannot be a Mutawalli. But in certain
cases a minor can be a Mutawalli if the office is hereditary. A woman can also be appointed
as a Mutawalli, provided that there is no performance of any spiritual duties or functions.

# RULES OF APPOINTMENT BY COURT:

There are four general rules of appointment of a Mutawalli by court. They are as follows:
a) The court must not disregard the directions of the settlor and consider the interests of the
body for whom interest is credited.
b) The preference should be given to the member of the settlor's family if eligible rather than
a stranger
c) In a contest between lineal descendent of the settlor and a non-lineal descendent the court
can exercise discretion
d) When the office is held jointly the office passes on to the survivors on the death of the
holder in the absence of any other direction.

# POWERS AND DUTIES OF THE COURT:

If the court sanctions, only then can a wakf property be alienated. A Mutawalli cannot do so
unless the wakf-nama specifically provides. Without the sanction of the court, the Mutawalli
cannot:
i) sell, mortgage or exchange wakf property
ii) to grant;
a) for more than 3 years of property is agricultural
b) for more than 1 year of property is non-agricultural A Wakif may provide for remuneration
for the Mutawalli which is fixed.. Wakf property can neither be attached nor sold in
execution of personal decree against the Mutawalli.

#REMOVAL OF MUTAWALLI:

In following cases the court may remove the Mutawalli

a) If he denies the Wakf character of the property and sets up an adverse title to it in himself.
b) If he neglects to repair wakf premises and allows it to fall in disrepair eventhough he has
sufficient funds at his disposal.
c) If he knowingly causes damage or loss to the wakf or misdeals with trust property.
d) If he insolvent.
 Hindu Male Dying Intestate
I] INTRODUCTION

Uniform laws of succession are laid down by the Hindu Succession Act, 1956 which is based
on the principles of propinquity i.e preference of heirs on the basis of proximity on
relationship. There are two types o succession viz; 1) testamentary succession and; 2)
intestate succession

1) TESTAMENTARY SUCCESSION:

Testamentary succession is one which is governed by a testament or a will. In this case a

male or female is supposed to make a will and the same will take effect on their death. The
person making a will is called as testator or testatrix and the one in whose favour it is made is
called a legatee. The will must be valid otherwise the rules of inheritance will apply, this is
the only condition that needs to be fulfilled.

2) INTESTATE SUCCESSION:

If a person dies without making a will, then it is called as intestate succession. In such cases
the property devolves as per the rules of inheritance. The person who dies without making a
will is called as 'intestate' and those who are entitled to get the share out of his property are
called 'heirs' and this whole process is known as 'intestate succession'.

i) Property subject to the rule of intestate succession: The very first and important condition
for the application of laws of inheritance is that there should not be a proper will. The
property will then be devolved as per section 8 of the Hindu Succession Act, 1956 which
deals with the succession in case of a male Hindu dying intestate.

ii) Separate property or self acquisition: This includes the property that the deceased might
have earned i.e his salary or a share in profits or what he may have received through a gift or
will or through inheritance from any relative or received by way of a prize or a lottery. It os
irrespective of the fact whether he was a member of Mitakshara undivided family, as a
coparcener is also empowered to hold separate properties.

iii) Undivided share of a Male Hindu in Dayabhaga Joint family: An undivided share of a
Male Hindu in Dayabhaga joint family would be subjected to the applicability of section 8 of
the Hindu Succession Act, 1956 and the doctrine of survivorship would not come into play.

iv) Death of male Hindu after commencement of the Act: The Act does not require the male
Hindu to die after the commencement of the Act. For example. a Hindu male settles his
property on his wife for her life, after her death, in favour of her daughter. The husband dies
in 1933, and the wife dies in 1945, so the property would go to the daughter, who dies after
the commencement of the Act. The succession would then open; since there is no one after
the daughter who is appointed to succeed.

II] CLASSIFICATION OF HEIRS:

The heirs are divided into four categories viz; class I, class II, class III (agnates), class IV
(cognates). #class I: Initially, before 2005, there were 12 entries; out of which 8 were female
and 4 were male. Post 2005 there were 16 entries, out of which 11 are female and 5 are male.
The intention of the legislation was to favour the women pre-dominantly. The classes are
mutually exclusive, i.e even if any one member of class-I is present, the member of class-II
would be excluded. before 1956, only 14 categories of persons could succeed. Now there is
no limitation on the number of persons who are entitled to succeed the property and be
removed from the intestate.

i) class-I Heirs:

As mentioned above there are 11 females and 5 males in this category. It prevents the
property from going to the class-II category if any one of these class I members is present.
Following are the class I heirs;
1) Mother (M)
2) Widow (W)
3) Daughter (D)
4) Daughter of a predeceased son (SD)
5) widow of a pre deceased son (SW)
6) Daughter of pre deceased daughter (DD)
7) Daughter of pre deceased son of pre deseased son
8) Widow of a pre deceased son of pre deceased son
9) Son
10) Son of pre deceased son
11) Son of pre deceased son of pre deceased son
12) Son of pre deceased daughter
13) Daughter of pre deceased daughter of pre deceased daughter
14) Son of pre deceased daughter of pre deceased daughter
15) Daughter of a pre deceased daughter of a pre deceased son
16) Daughter of a pre deceased son or pre deceased daughter

a) Mother:

The word 'mother' does not include a step mother but it includes a biological as well as an
adoptive mother. This was held in Padmavati Mishra v. Sumitra Devi. It is irrespective
whether the mother is married or unmarried at the time of birth of the son, she is always
related to her child. Therefore, the marital of the mother as well as her conduct i.e chastity is
irrelevant when it comes to the claiming of inheritance. The legitimacy of the child is also of
little consequence. The mother, under the Hindu Code Bill of 1948 was a class II heir, placed
in entry (i) and this same position continued at the time of introduction of Hindu Succession
Bill in the Parliament. Both the parents should be placed in the class I category if both are to
be treated on an equal footing.

b) Widow:

It was held in Margabandhu v. Kothandarama, (1983) 2 Mad LJ. 445, that the term widow
does not include a divorced wife rather it includes the wife who at the time of the death of the
male Hindu, was living separately under decree of judicial separation. The widow of an
intestate takes equal share to that of the son. According to section 10 Rule (1) of the Hindu
Succession Act, if there are more than one widow, then they will have the share as tenants-in-
common. They will have one share equal to the share if the son and divide ot amongst
themselves. In Dalijit Kaur v. Amarjit Kaur; it was held that unchastity is a ground for
divorce but not a disqualification for succession rights on the other hand a contradictory
judgement was passed by Andhra Pradesh High Court which based on the principles of
equity, justice and good conscience. In Krishnamma v. P Subramanayam Reddy, a Hindu
wife deserted her husband so as to live with her paramour and give birth to his children. she
re-appeared on the scene when her husband was dead in order to claim his property. The
court held that this could not be possible since the women lived under the roof of another
man and had begotten his children and also that her marriage was voidable which became
void after the death of her husband therefore her claim was rejected.

c) Daughter:

The daughter holds a place in class-I heirs. The expression daughter includes a natural born
or an adopted daughter, it does not include a step daughter or illegitimate daughter. The Act
does not make distinction between the rights of a married and an unmarried daughter. Her
financial status, chastity, marital status os immaterial even if she has been discarded by her
father, section 23 of the Hindu Succession Act, allows her to take part in succession.

d) Son:

The expression 'son' does not include a step son or an illegitimate son neither a grandson, it
includes a natural born son or an adopted son. The son, under the Act takes an absolute
interest in the property on the other hand his son cannot claim a right from birth in it. Under
classical law the son was a primary heir whereas, under Mitakshara law the share is taken by
inheritance therefore, we see that the right of a son to inherit his father's property has never
been in dispute.

III] MODES AND MANNERS OF DISTRIBUTION OF SHARES

1) Class I heirs:

Section 10 provides rules for distribution of shares among class I heirs. Following are the
rules for distribution of property of an intestate.
i) share of each son and daughter and of the mother is equal.
ii) The widow takes one share and if there is more than one widow then all of them
collectively, will take one share i.e a share equal to the share of the son, and will divide it
equally amongst them.
iii) A predeceased son, who is survived by a son, daughter or a widow, is to be allotted a
share equal to the share of a living son.
iv) Out of such share allocated to the branch of this predeceased son, his widow (or widows
together) and each living son and daughter will take equal portions with respect to each other
and branch of any predeceased son will also get an equal portion.
v) The rules applicable to the branch of a predeceased son of predeceased son, are the same,
viz; the sons, daughters, and the widow or (widows together), will get equal portions.
vi) A predeceased daughter, who is survived by a son or a daughter, is to be allotted a share
equal to that of a living daughter.
vii) Such share will be taken equally by the sons and daughters of the predeceased daughter.
2) Class II heirs:

Persons from class- II heirs are excluded even if a single heir from class-I is present. In
Kumar Bhattacharu v Pratima Chakraborty, it was held that a Hindu male dies intestate
without leaving any heir the property will devolve among the class-II heirs. It was held in
Hari Singh v Joginder Singh, that when a brother is present the nephew cannot inherit. The
presence of one will exclude the other i.e the heir present in first class will exclude the heirs
in the second class and the heirs present in second class will exclude those in the third class
and so on. There are 19 heirs in this category they are divided into 9 sub categories.
Following are the heirs and their sub categories;
I) Father
II) (1) Son's daughter's son
2) Son's daughter's daughter (now also placed in class-I category) 3) Brother
4) Sister
III] (1) Daughter's son's son
2) Daughter's son's daughter (now also placed in class-I category)
3) Daughter's daughter's son (now also placed in class-I category)
4) Daughter's daughter's daughter (now also placed in class-I category)
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; Brother's widow
VII] Father's brother; Father's sister
VIII] Mother's father; Mother's mother
IX] Mother's brother; Mother's sister

# The term 'brother and sister' here, does not include a reference to a brother or sister by
uterine blood.

3) Class-III heirs (Agnates):

Agnates are the persons related to the intestate through male relatives only. It is not the sex of
the heirs that matters, but the chain of relatives that does Therefore, an agnate himself/ herself
can be male or a female. Agnates can be direct ascendants, direct descendants or collaterals.

# RULES OF PREFERENCE AMONG GENERAL AGNATES

i) Each generation is called a degree.

ii) For the computation of degrees, the starting or the first degree, is the intestate himself.
iii) Degrees of ascent means in the ancestral or upwards direction.
iv) Degrees of descent means in the descendant or downwards direction.
v) Where an heir has both ascent and descent degrees each of them has to be seen separately
and not cumulatively.
vi) An agnate who has only descent degree, is preferred over the one who has only ascent
degrees.
vii) Where two agnates have ascent and descent degrees, the one with fewer ascent degrees
will be preferred.
4) Class-IV (Cognates):

'Cognates' are the residue of the relatives who are mixed. The chain of relatives is mixed and
even if a single female intervenes, it is a cognatic chain. For example: an intestate's paternal
aunt's son is his cognate but his parental uncle's daughter will be an agnate.

Hindu Female Dying Intestate

I] INTRODUCTION

Succession to the property of a Hindu Male dying intestate and Hindu female dying intestate
is distinguished by Hindu Succession Act, 1956. The property of a woman, prior to 1956 was
devolved according to the rules of uncodified Hindu Law. Section 15 happens to be the first
statutory enactment which deals with the succession to the property of a Hindu female dying
intestate. The statutes which enabled a woman to have economic independence are Hindu
Law of Inheritence (Amendment) Act, 1929 and the Hindu women's Right to Property Act,
1937 these Acts secure the rights of the woman.

II] SECTION 15 APPLICABLE TO THE ABSOLUTE PROPERTY OF A

FEMALE

This section is applicable to;

i) Property that a woman holds as an absolute owner irrespective of the mode of its
acquisition. It would include movable or immovable properties, but would not include any
property to which the Act does not apply.
ii) The term ' property' would include an undivided interest in a Mitakshara coparcenary in
which a female was a coparcenary who dies leaving behind her son, daughter or children of a
predeceased son/ daughter.

III] SEPARATE SCHEMES OF SUCCESSION FOR MALE AND FEMALE

Hindu Succession Act, 1956 provides for separate schemes for succession for male and
female intestates, yet none of the other succession laws provide for such separate succession.
Taking into consideration section 15 and 16 it is observed that lot of importance is attached to
the concept of 'Stridhan'. It has also been observed that in patriarchal system a woman does
not have a permanent house of her own. She lives in her father's family until she gets married
thereafter she lives with her husbands family and that too is not permanent because there
might be marital break up due to death of her husband or divorce and due to this she might
move out of this family by wither remarrying or going back to her father' family. The fact
that she can move on with a new family and carry her property therein is taken care of.
Taking a closer look at section 15 and 16 we see that the blood relations are given a very
inferior placement as compared to the category of heirs of her husband.
IV] SCHEME OF SUCCESSION

Depending upon the source of acquisition of the property of a female th Act provides for
three different sets of heirs;
1) Property that a female Hindu had inherited from her parents.
2) Property that a female Hindu had inherited from her husband or her father-in-law.
3) Any other property or general property

V] SUCCESSION TO GENERAL PROPERTY

The property a woman inherits from sources other than her parents, husband or father-in-law
is referred to as 'general property'. It incudes the property that she might have received by
way of gift, will or settlement or even through transfer for consideration. Property that a
woman inherits from her brother in capacity of his sister or from her husband's brother as his
brother's widow would be her general property and would go under this section.

VI] GENERAL RULES OF SUCCESSION IN THE CASE OF FEMALE

HINDU

Section 15 provides;
1) The property of a female Hindu dying intestate shall devolve according to the rules set out
in section 16 -
a) Firstly upon the sons and daughters (including the children of any predeceased son or
daughter) and the husband.
b) Secondly upon the heirs of her husband
c) Thirdly upon the mother and father
d) Fourthly upon the heirs of the father.
e) Lastly upon the heirs of the mother. These are mutually exclusive; i.e the former excludes
the latter.

VII] CLAUSE (a)

This clause specifies 7 heirs; namely the sons, daughters including children of any
predeceased son, daughter and husband. 1) Son and daughter: The terms ' Son' and 'daughter'
would not include a step-son or step-daughter. It includes a woman's biological or adopted,
ligetimate or even illegitimate children. When it comes to a Hindu female dying intestate the
illegitimate as well as legitimate children would inherit the property together and no
difference would be made. As far as her marriage is concerned then it is not questioned at all;
it is of no consequence. For example: 'W' a Hindu woman dies leaving behind a son from her
first marriage which ended in divorce. 'W' was in a relationship wit a married man 'H2' and
she gave birth to daughter 'D' . In this case 'D ' and 'S' are uterine brother and sister but still
they are entitled to succeed equally both will inherit the property in equal share.

2) Children of predeceased son and daughter: If a son or daughter dies during the lifetime of
their mother leaving behind a child, that child is entitled to succeed the property along with
the other surviving son or daughter provided that the child of the predeceased must be beget
from a valid marriage. Similarly, their deceased parents should also be born from a valid
marriage. Let's consider that a Hindu woman 'W' gets married to an already man 'H' which is
void according to Hindu Marriage Act, 1955. She had begotten two sons S1 and S2. S2 dies
during the lifetime of W; leaving behind his daughter S2D. In this case only S1 is entitled to
inherit as children born out of a void and voidable marriage are not deemed to be related to
any of the relative other than the parents. Hence, S2D will not be related to W. In Shahaji
Kiran Asme v Sitaram Kondi Asme; a man gets married to W2 while his first marriage was
still subsisting. He died leaving behind his three sons and a daughter from the second
marriage, his parents, F and M, a brother S2 and both of his wives. In this case only the
children, mother and the first wife inherited his property. According to section 16 of Hindu
Marriage Act, 1955 the children were entitled to succeed the property. Subsequently, when
the mother died, the court held that only S2 and F would inherit the property as the children
of her predeceased son were illegitimate and hence, were not entitled to succeed. If the
parents before the birth of the child had ceased to be a Hindu and had converted to other
religion then the children of a predeceased son or daughter will also be disqualified from
inheriting the property of the intestate.

3) Husband: The term 'husband' does not include a divorced husband but includes a husband
who was living apart from her under a decree of judicial separation, or the who had deserted
her or deserted by her. It refers to the spouse of a valid marriage which came to an end woth
thee death of te intestate. The husband's immoral or even criminal conduct does not debar
him from succession unless he commits his wife's murder. The husband from a valid
marriage does not inherit from his wife but the husband from a voidable marriage whose
decree is pending in the court may get a share, but if it is annulled then no share.

# RULES FRO CALCULATION OF SHARES: On the death of a female intestate, her

property devolves on her primary heirs, in accordance with the following rules;
i) Each surviving son and daughter and the husband takes one share.
ii) Where a son or a daughter had predeceased the intestate but is survived by a child, his/her
branch has to be alloted a share.
iii) Such surviving grandchild takes the share of the deceased parent and if there are more
than one they will divide the property equally among themselves.

# Illustration:
1) Let's assume that 'W' a Hindu female dies leaving behind her husband H, two sons S1 and
S2 and a daughter D then the property will be divided into equal parts.
2) A Hindu female died leaving behind her husband H, daughter D, son S and an unmarried
daughter D. Two children of pre deceased daughter, two sons S1 and S2 and an illegitimate
son S3. In this case the property gets divided into 5 equal parts. The branch of predeceased
will get 1/5th share of the property wherein S1 and S2 will share it i.e each one will get
1/10th of the share.

VIII] CLAUSE (b):

Heirs of the husband: This category includes the entire group of heirs of the husband of an
intestate. If none of the heirs of the husband is present, only then can the parents of the
intestate inherit the property. It was held in Devinder Kaur v. Ajit Kumar Sandhu, (1995) 1
HLR 147, that the heirs of the husband inherit in absence of the children, grandchild and the
husband of the deceased. It is generally presumed that the property belonged to the husband
and is distributed according to the rules laid down under section 8-13 of the Act. For example
a Hindu female W dies intestate and is survived by her step-son (son born to her husband
from a previous marriage). In case if the woman marries more than one time then the
expression 'heirs' of the husband means heirs of the last husband.
# CLAUSE IMPRACTICAL: The law is impractical as it assumes that the husband's
relations are nearer to the female who dies intestate than her own blood relations. In Om
Prakash v. Radha Charan; wherein a Hindu Female, 15 years of age was abandoned by her in
laws out of her matrimonial house just because her husband died of snake bite, just 3 months
after their marriage. She then lived with her parents they educated her. Later on she took up a
job. Meanwhile, her relations with her in laws were snapped completely. They never asked
about her. 42 years later she died intestate leaving behind huge amount in various bank
accounts, provident funds and a substantial property. It was held that her brother was not
entitled to claim her property and the peoperty went to her husband's heirs i.e the same in
laws who kicked her out of the house. According to provision of Hindu Succession Act, 1956
it is the heirs of the husband who have a legal right to inherit the property of an issue less
married Hindu woman and her parents cannot inherit in their presence.

IX] CLAUSE (c) Mother snd Father:

In Antua v. Baijnath, AIR 1974; it was held that the terms 'mother and father' do not include a
step-mother or step-father nevertheless they are to succeed. The parents can inherit from the
children even if their marriage was void or voidable. In certain cases, where the child is
illegitimate then only the mother can inherit the property and not the putative father. The
mother and father are entitled to succeed the property only if none of the primary relations
and husband's heirs are present.

X] CLAUSE (d)

If none of the heirs given in the first three clauses is present then the property will go on to
the father of the female who died intestate. This will include her brothers and sisters,
including half-blood brothers and sisters and the descendants grandparents and other natal
relations.

XI] CLAUSE (e) Heirs of the mother:

In this case, the property will go on to the heirs of the mother if none of the above mentioned
heirs is present it is then presumed that the property belonged to the mother and it was she
who had died intestate. This category will include the uterine brother or sister of the deceased
and their descendants.

XII] PROPERTY INHERITED FROM THE FATHER:

The court held in Bhagat Ram v. Teja Sing, it was held that the female inheriting from her
parents in the absence of her issue of children, will revert to her father's heirs. Section 15 (2)
provides that; notwithstanding anything contained in sub-section (1) any property inherited
by a female Hindu from her father or mother shall devolve, in the absence of any son or
daughter of the deceased (including the children of any predeceased son or daughter) not
upon the other heirs referred to in sub section (1) in the order specified therein but upon the
heirs of her father There are two important things to be noted here;
# The term 'inherit' means to inherit as an heir. When a female Hindu inherits a property, sells
it and buys another property, it will be converted to general property.
# When a Hindu inherits property but dies without children or grandchildren but has husband
even then the property will be reverted to father's heirs.
XIII] PROPERTY INHERITED FROM HUSBAND OR FATHER-IN-LAW:

Section 15 (2) (b) provides: any property inherited by a female Hindu from her husband or
from her father-in-law, shall devolve in the absence of any son or daughter of the deceased
(including the children of any predeceased son or daughter) not upon the other heris referred
to in sub-section (1) in the other specified therein, but upon the heirs of the husband.
 Muslim Law of Inheritance
I] INTRODUCTION

Muslim Law of Inheritance did not have its origin from Quranic principles it was derived
from the customs and wages prevalent among the tribes of Arabia. Muslim Law differs from
other law prevalent in India. It does not recognise the concept of joint or undivided family,
co-parcenary and karta. There is also a big difference between the laws relating to Shias and
Sunnis.

II] GENERAL PRINCIPLES

1) Which law prevails: After the death of a Muslim his property has to be distinguished
according to the law of the school to which he belonged at the time of his death. The school
of law to which his heirs belong is immaterial.

2) Heritable property: There is no distinction between movable and immovable property or

separate and and ancestral property as the Muslim Law does not recognise the joint family
system and whatever property remains after the deduction of charges which includes funeral
expenses, unpaid and legacies, inheritable property.

A Muslim without the consent of the heirs cannot bequeath more than one third of his estate.
If he makes a will two third of the property would go intestate and if he does not then entire
property would go by intestate succession.

3) Joint Family System not recognised: Joint Family system is not recognised by the Muslim
Law even if the members of the family live together they do not constitute a joint family even
if these members run a business together it is not considered to be a joint family firm. The
right of such members are governed by the express or implied agreement.

4) No rule of primogeniture: SUNNI LAW: Rule of Primogeniture is not recognised under

Muslim Law i. e. if a man leaves many sons the eldest gets the advantage over rest.

SHIA LAW: Shia Law recognises Habua i.e. the deceased father wearing apparel the Quran
his ring and his sword become the property of the eldest son.

5) Right of Heir Presumptive spes Succession: By mere birth a child or any other heir does
not acquire any interest in the property of a person the right of an heir presumptive comes
into existence only on the death of the propositus. In case the heirs survive the propositus
then they have a mere chance of inheriting the estate i.e a mere spes of succession but this
cannot be the subject of valid transfer. The court in Hasan v. Nazo 1889 I.L.R 11 ALL 456;
dismissed a suit stating that the nature of right claimed was only a spes of succession and had
no cause of action.

6) Vested Inheritance: Vested Inheritance is nothing but the share which vests in an heir at
the time of the death of the person whose property is claimed if in case an heir dies before the
actual distribution of the property the share of inheritance which has been already vested in
him will pass on to his heirs. The succession thus is never allowed to be in abeyance.
7) Principle of Representation: SUNNI LAW: Sunni Law does not recognise the principle of
representation. Therefore the expectant right from an heir presumptive does not pass to his
heirs if in case the heir presumptive dies in the life time of the propsitus then his heirs cannot
claim the property of the propositus as representing heir. In Mooda Cassim's case the privy
council held that it is a well known principle of Muhammadam Law that if any of the
children of a man die before the opening of the succession to his estate leaving children
behind their grand children are entirely excluded from the inheritance by their uncles and
aunts.

#Shia Law: The principle of representation is recognized in sense the succession is per stripes
and not per capita. Thus the manner in which they are followed are;
i) The children of deceased daughter take amongst themselves, the share the mother would
have taken.
ii) The daughter of a deceased son shares with other children of the deceased son, the share
assigned to then father.
iii) The children of each son have the exclusive right to what their father would have taken.

8) Suit be creditor against heirs: The creditor can proceed against the heirs of the deceased if
there is no executor or administrator. In case the estate of the deceased has not been
distributed amongst the heirs then he can execute the decree against the property as a whole.

9) Life estate and vested remainder: The privy council observed in Hameed v. Budlun,
"creation of a life estate does not seem to be consistent with Mohomedan usage and there
ought to be very clear proof of so unusual a transaction." There is a difference between copus
of the property and usufruct of the property under Muslim Law.

III] DOCTRINE OF INCREASE (AUL)

Under Muslim Law there are various shares which are fixed. But sometimes the total of the
share that are entitled to inherit may exceed unity. # Illustration: A Muslim woman 'W' dies
leaving behind her parents M and F, her husband H and three daughters D1, D2, and D3.
Here the share of H will be 1/4th, the share of M and F will be 1/6th and daughters will
collectively take 2/3rd of the share. The sum total will be (1/4 + 1/6 + 1/6 + 2/3) = 15/12.
This exceeds the unity therefore we take common denominators. Applying the doctrine of
'Aul'; The denominator is increased to the numerators do that shares equal unity. The increase
here is referred to the increase in the denominator to reach unity. Under Sunni law this
doctrine is applied to all shares equally. Under Shia Law the doctrine implies only to the
daughters full or consanguine sisters only.

IV] DOCTRINE OF RADD (RETURN)

After assigning the shares to the sharers, still the property is not exhausted and if there are no
residuaries the residue will revert back to the sharers and does not devolve onto the distant
kindred. This is doctrine of Radd. The surplus reverts back in proportion to the shares. This is
done by reducing the common denominator to the sum of the numerators. There is an
exception to the doctrine of Radd and that is - The husband or wife of the deceased are not
entitled to share in the return. Thus the same shall devolve onto distant kindred. In the
absence of all other heirs, only then can the husband or wife of the deceased take share in the
property.