Testamentary disposition of

coparceners

By

GAUTAM JAYASURYA

2ND YEAR LAW

B.A(Hons) LLB

RAJIV GANDHI NATIONAL UNIVERISTY OF LAW

PUNJAB

PATIALA

INDIA

EMAIL: goutamjay@gmail.com

Twitter: twitter.com/goutamjaybe
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CONTENTS

1. INTRODUCTION TO JOINT HINDU FAMILY AND THE INFLUENCE OF

COPARCENARY……………………………………………………………….(5)

1.1 Joint Hindu Family

1.2 Coparcenary

1.3 Genesis of Coparcenary

2. COPARCENARY PROPERTY AND SEPARATE PROPERTY: A MULTIFARIOUS

APPROACH……………………………………………………………………..(6)

3. MANAGEMENT AND ENJOYMENT OF COPARCENARY PROPERTY…..(9)

4. COPARCENAR’S POWER OF ALIENATION……………………………..….(11)

4.1 Types of Testamentary Disposition

4.2 Deed of Will

4.3 Deed of Gift: Not valid -1884

4.4 Deed of Gift: Valid, if Consented -1957

4.5 Deed of Gift: Valid -1987

4.6 Sale and Mortgage

4.7 Dayabaga School

4.8 Sole Surviving Coparcener

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4.9 Right to Challenge an Alienation

5. JUDICIAL PRONOUNCEMENTS…………………….…………………..(20)

6. CRITICAL ANALYSIS OF TESTAMENTARY PROVISIONS IN HINDU

SUCESSION ACT, 1956………………………………….…………………(23)

7. CONCLUSION………………………………………………………………(25)

8. REFERENCE…………………………………………………………………(26)

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CHAPTER 1

Introduction to Joint Hindu Family and the influence of

coparcenary

JOINT HINDU FAMILY

A join Hindu family consists of all persons lineally descended from a common ancestor,
including their wives and unmarried daughters1. An undivided family is ordinarily a joint one not
only in estate, but also in food and worship2. After the separation of estate to the members of the
joint family, the family ceases to be a joint one. The Hindu family should at least constitute two
members3. Even if the total number of the male coparceners is temporarily reduced into a single
individual, the character of the property remains the same.

COPARCENARY

A Hindu Coparcenary is a much narrower body than the joint family, which is purely a creation
of law. The conception of a joint Hindu family constituting a coparcenary is that of a common
male ancestor with his lineal descendants in the male line within four degrees counting from, and
inclusive of, such ancestor. It includes only those persons who acquire by birth an interest in the
joint or Coparcenary property4. These are sons, grandsons and great grandsons of the holder of
the joint property for the time being. After the amendment of the 2005, a daughter has been
included as a coparcener along with the sons of the coparcener. Difference between ancestral
property and separate property is the interlinked with the concept of Coparcenary. The property
jointly inherited by a Hindu by birth along with his sons, grandsons and great grandsons from his

1
Commissioner of Income-tax v Luxminarayan (1935) 59 Bom 618
2
Sri Ragunada v Brozoa Kishor (1876) 49 Mad 98
3
Krishna Prasad v CIT Banglore AIR 1975 SC 498
4
Surjith Lal Chhaabda v. CIT Bombay AIR 1976 SC 109

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male lineage of ancestors is ancestral property5. All other property is included under separate
property.

GENISIS OF COPARCENARY

(Consult the illustration given below)

A Hindu male A, with self acquired property without the help or financial support of his
ancestors has a son B. B with his three sons or daughters C, D and E and with their children F, G
and K. The main family will constitute the above mentioned members i.e. up to four generations.
I, J and K constitute branch families. All these families have one common ancestor A. On the
death of A, I and J will be added to the coparcenary. On A’s death the self acquired property of
A during A’s lifetime is inherited by B. B’s three children C, D and E takes a vested interest in
the property by reason of birth. This property inherited by B will become ancestral property in
B’s hands. After the death of A, his children C, D and E and their children F, G and H are
coparceners as regards the property.

5
Sundar Lal v. Chhittar Mal (1907) 29 All 1
6
Table showing the illustration of a coparcenary in the Hindu family, available at
<http://www.payer.de/dharmashastra/dharma0915.gif >(last viewed April 27, 2010).

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It is to be noted that coparcenary is not always limited to four degrees from common ancestor. A
member of a joint family may be removed more than four degrees from common ancestor, and
yet he may be a coparcener. But the rule states that partition can only be demanded by any
member of a joint family, who is not removed more than four degrees from the last holder. On
the death, however of the last holder, he would become a member of the coparcenary, if he was
fifth in descent and would be entitled to a share in the partition. Whenever a break of more than
three degrees occurs between any holder of the property and the person who claims to enter the
coparcenary after his death, the line ceases in that direction.

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CHAPTER 2

Coparccenary and separate property

Section 30, Hindu Succession Act entitles a Hindu to make a testamentary disposition of his
interest in the joint family property. It doesn’t enable him to alienate his interest by way of gift ir
by any other mode, say sale mortgage, lease, exchange etc. These are the inter vivo transactions.
They differ from a will. Therefore where Hindu law refuses any Hindu the permission to alienate
his interest in the joint family in any of these modes, the restriction cannot be taken as removed
by implication from section 30 of the Hindu Succession Act.

A male member of the Mitakshara coparcenary was not authorised to make a will of this interest
in the joint family property before the commencement of HSA. The reason for the disability was
that on the death of a coparcener his interest in the coparcenary property devolved by survivor
ship on the surviving coparceners. There was nothing on which the will could operate7. Any
provision of this Act or any other law which renders such property incapable of being disposed
by will, stands overruled by this section.

All those properties of the deceased intestate that is heritable come

under the term ‘property’ includes under the Act. It includes his self-
earned property as also his share in the Mitakshara coparcenary if he is
survived by any of the female heirs or daughter’s son as mentioned in
Class I of the Schedule. It also includes the property that he might
have inherited from his grandfather or father after the Act came into
force8.

7
Lakshman Dada Naik v. Ramchandra Dada Naik (1881) 7 IA 181
8
Extract from, Intestate Succession: Devolution Of Property After The Death Of A Hindu Without A Will, Visited
on May 5th at <http://www.legalserviceindia.com/article/l258-Intestate-Succession.html>

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CHAPTER 3

Management and Enjoyment of Coparcenary Property

Although the preamble to the Hindu Succession declares that the act amends and codifies Hindu
law of intestate succession, yet third chapter deals with the testamentary succession not implidly
but boldly and to some extends radically. The effect of this provision is that when a person
bequeaths his or her property by will, the succession under the act is excluded and the property
passes to the testamentary heirs9.
Where a Hindu dies after the commencement of the Amendment Act 2005, his interest in the
property of the joint Hindu family governed by the Mithakshara Law shall devolve by
testamentary or intestate succession and not by survivorship and the coparcenary property shall
be deemed to have been divided as if a partition had taken place. Any property to which a female
Hindu becomes entitled to under this Amendment Act 2005, shall be a property capable of being
disposed of by her by testamentary disposition i.e. by way of Will.

CHARACTERISTICS OF THE COPARCENARY PROPERTY

• Unity of ownership: The ownership of property is vested in the whole body of the
coparceners.
• In determinability of shares: The interest of a coparcener in the property is fluctuating
and is capable of being enlarged by deaths in the family and liable to be decreased by
births in the family.
• Community of interest: No coparcener is entitled to any independent and exclusive
interest in the coparcenary property nor is he entitled to the exclusive possession of any
part of the coparcenary property. His right is that of an undivided interest.
• Rights by birth: Coparcenary members acquire interest in the property by birth under
Mithakshara law while under Dayabhaga, nobody inherits any interest by birth.
• Devolution of survivorship: One of the interesting features of Mithakshara coparcenary is
that on the death of a coparcener, his interest in the property passes on to other
9
Sadhu Singh v. Gudwara Sahib Narike (2006) 8 SCC 75

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coparceners by survivorship (i.e. to the members who are alive). In Dayabhaga, the
property devolves on the coparceners on the death of the holder.

ELEMENTS OF A COPARCENARY PROPERTY

• Ancestral property: The property which descends from father, grandfather or father’s
father’s father.

• Property jointly acquired by the members of the joint family of HUF nucleus

• Separate property of a member donated to the joint cause with the intention of
abandoning all his separate claims on it, which becomes the property of joint family

• Property acquired by all or any of the coparceners with the aid of joint family funds

THE RIGHTS OF THE COPARCENER ENJOYS IN RESPECT OF COPARCENARY

PROPERTY.

The rights are:

1. Community of interest and unity of possession of coparcenary property,

2. Share of income,

3. Joint possession and joint right of maintenance out of the family estate,

4. right to enforce partition,

5. Right of survivorship.

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CHAPTER 4

Coparcener’s power of alienation

Alienation is the capacity of a legal person to transfer a property or a property right to be sold
from to another. Restraints to alienation can be seen laws across the globe. In India, these
restraints are mostly seen in personal law concerning the testamentary succession of property.
Hindu Coparceners are a specific group of people, who according to Mitakshara law are not
allowed to alienate their joint family property. To unearth the logic behind this legal fiction, it is
necessary to trace back the history of Smritikars in Hindu law. Smritikars were those people who
documented the customs of different communities and emphasised that codes of morality are not
fixed by some divine authority, but must evolve with respect to the changing requirements of
generations and communities. They provide the commoners a code of conduct which is
considered to be the most authoritative of all. Even though they didn’t hold any punitive powers,
their influence depended solely on the voluntary internalisation of such value systems by the
groups to which they addressed themselves to, and people's respect for their judgment10.
Smritikars went on to state that the essence of a coparcenary under the Mitakshara School of
Hindu Law is community of interest and unity of possession.

TYPES OF TESTAMENTARY DISPOSITION

Transfer or gifting of any property under the terms of a will by a testator is called a testamentary
disposition. The term ‘testament’ is derived from testatio mentis, it testifies the determination of
the mind. It is the legal declarations of a man’s intentions which will be performed after his
death. Five types of testamentary disposition are widely recognized, which include,

i. Gift: Gifting in simple terms is defined as the legal transferring of assets to one person to
another.

ii. Legacy: Testamentary gift of personal property, traditionally of money but may be real or
personal property11.
10
Madhu Kishwar, From Manusmriti to Madhusmriti Flagellating a Mythical Enemy, The education council on
Indian traditions., visited on April 27, 2010 < http://www.infinityfoundation.com/ECITmythicalframeset.htm>
11
Legal Estate Definition, Business Dictionary .comViewed at 24th April 2010,
<www.businessdictionary.com/definition/legal-estate.html>

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iii. Life estate: A concept used in common and statutory law which designates the ownership
of the land for the duration of a person’s life. In legal terms it is an estate in real
property that ends at death12.

iv. Demonstrative legacy: A gift of a specific sum of money with a direction that is to be
paid out of a particular fund13.

DEED OF WILL

The law of coparcener’s power of alienation is the product of judicial legislation. The relaxation
of the old rule was done in section 30 of the Hindu Succession Act, 1956. Section 30 confers a
right upon every Hindu to dispose of his property by a will or by any other testamentary
disposition. The expression ‘Will’ has been defined by section 2(h) of the Indian Succession Act,
1925 as,

‘The legal declaration of the intention of a testator with respect to

his property which he desires to be carried to effect after death.’

The present section says that the disposal of property by will has to be made in accordance with
the provisions of the Hindu Succession Act, 1956. It permits a male Hindu to dispose his will in
a Mitakshara coparcenary property. The most significant fact which may be noticed in this
connection is that while the Legislature was aware of the strict rule against alienation by way of
gift, it only relaxed the rule in favour of disposition by a Will the Interest of a male Hindu in a
Mitakshara coparcenary property. For some time a notion existed that this provision granted a
Hindu coparcener the right to dispose of his share in the coparcenary property by a will, which
was against the tenets of the normal Hindu law relating to Hindu coparcenary property. But the
truth is although Section 30 makes a striking departure from the existing law governing
coparceners, it does not destroy the existence of a coparcenary, but all that it does is to grant the
right of testamentary disposition to a Hindu coparcener which he did not enjoy earlier to this
enactment.

ESSENTIALS OF A WILL
12
Will (law), Absolute Astronomy,Viwed at 27th April 2010,
<http://www.absoluteastronomy.com/topics/Statute_of_Uses>
13
Supra Note 9

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• Legal declaration

• Disposition of property

• Takes effect after death

CLASSIFICATION OF WILL AND GIFT IN HINDU LAW

There are certain restrictions on the members of a coparcenary, one of them being that a
coparcener cannot dispose of his undivided interest in the coparcenary property by gift nor can
he alienate his interest even for value except in Bombay, Madras and Madhya Pradesh. The
Legislature did not, therefore, deliberately provide for any gift by a coparcener of his undivided
interest in the coparcenary property either to a stranger or to another coparcener. Therefore, the
personal law of the Hindus, governed by Mitakshara School of Hindu Law, is that a coparcener
can dispose of his undivided interest in the coparcenary property by a Will, but he cannot make a
gift of property, not even of his own interest in the property. Such transaction being void
altogether there is no estoppel or other kind of personal bar which precludes the donor from
asserting his right to recover the transferred property14.A coparcener, who has attained the age of
majority with a sound mind, can make a will in the presence of two witnesses to dispose off his
moveable/immovable property. The testament will only come to effect after the death of
executant and subsequently property will go to the beneficiaries. Gifting would give effect to
testament immediately. Under section 30 of the Hindu Succession Act, 1956 a coparcener may
dispose of his undivided interest by will. It is a settled law that a coparcener cannot dispose of
his undivided interest in the joint family property by gift inter vivos.

RESTRICTIONS ON A WILL (Acc. to Indian Succession Act, 1925)

• Transfer to an unborn is invalid - S.113

• Transfer made to create perpetuity - S.114

• Transfer to a class some of whom may come under above rules. - S.115

14
Sridhara Babu, Karnataka Land Laws, Viewed at 28th April 2010, <http://karnatakalandlaws.blogspot.com/>

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• Transfer to take effect on failure of prior Transfer. - S.116

INVALID WILLS (ACC. TO Indian Succession Act, 1925)

• Wills invalid due to fraud, coercion or undue influence - S.15, 16,17

• Wills Void Due To Uncertainty - S.89

• Will Void Due To Impossibility Of Condition - S. 124

• Will void due to illegal or immoral condition - S.127

DEED OF GIFT: NOT VALID - THE CASE OF Baba v. Timma (1884)

The personal Law of the Hindus governed by Mitakshara school of Hindu Law is that a
coparcener can dispose of his undivided interest in the coparcenary property by a will but he
cannot make a gift of such interest. In the leading decision on the point is the case of Baba v.
Timma15, where it has been held that a Hindu father, if unseperated, has no power, except for
purposes warranted by special text, to make a gift to a stranger of ancestral estate, movable or
immovable. In that case, the gift was made by the father to a stranger to the detriment of the
son’s right in the property gifted. It was held that under the Hindu Law a voluntary alienation by
gift of joint family property could not be made by an undivided coparcener, unless permitted by
an express text. Thus, the cumulative effect, of Baba’s case is that a coparcener cannot make a
gift of his undivided interest in the coparcenary property either in favour of a stranger or in
favour of his relations16.

DEED OF GIFT: VALID IF CONSENTED – THE CASE OF A.Perumalakkal v. Kumaresan

Balakrishnan and Ors (1967)

A gift by a coparcener to another coparcener is not valid, as are gifts without the consent of the
coparceners, but valid if done is the only other coparceners consent to the arrangement, which
they may well do by their mere acquiescence and adopting the transaction. The cases bearing out

15
ILR ( 1884 ) 7 Mad 357 ( FB )
16
Ponnusami v. Thatha and Ors., ILR 9 Madras, 273; Ramanna v. Venkata, ILR 11 Madras 246; Rottala
Rungunatham Chetty v. Pulicat Ramasami Chetti, ILR 27 Madras, 162; Mayne’s Hindu Law, Eleventh Edition,
Article 382 and Mulla’s Hindu Law, Fiteenth Edition, Article 258, referred to.

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of this are numerous17. In the leading cases of G. Suryakantam v.G. Suryanarayanamurthy and
Ors18and A.Perumalakkal v. Kumaresan Balakrishnan and Ors19 it was decided that by an
alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the
other coparceners of their right to the property. This legal proposition was further elaborated in
the case of Babu Mother Savavva Navelgund and Ors. v. Gopinath20 which said that an
individual member has no definite share in the coparcenery property. The object of this strict
rule against alienation by way of gift is to maintain the jointness of ownership and possession of
the coparcenary property. Even though the Privy Council recognized alienations by gift in the
case of Suraj Bunsi Koer v. Sheo Proshad Singh and Ors21, such alienations were held by their
Lordships to be inconsistent with the strict theory of joint and undivided Hindu family.
According to the old law, alienation by gift of undivided interest by coparcener is not
permissible. The legal aspect on this Court has now been finally settled by the Supreme Court in
the landmark case of Thamma Venkata Subbamma v. Thamma Rattamma22.

DEED OF GIFT: HELD VALID – THE CASE OF Thamma Venkata Subbamma v. Thamma
Rattamma (1987)

In the case of Thamma Venkata Subbamma vs. Thamma Rattamma23supreme court reversed the
decision in which, the respondent executed a deed of settlement which was a deed of gift in
purpose to in favour of another coparcener (his brother) conveying his entire undivided interest
in the coparcenary but reserving a life interest to himself and also providing that after his death
the other coparcener should maintain his wife. In a suit for partition and recovery of the property
filed by the widow of the coparcener who executed a deed of settlement on the ground that the
gift deed was a void document under the Hindu Law, the Trial Court held that the deed of
settlement was void and inoperative under the Hindu Law in the absence of consent of the other
coparcener. On appeal the High Court held that the deed of settlement was valid. In this appeal
17
Seth Lakshmi Chand v. Mt. Anandi, (1926) AIR P.C 54, Gunfayya Hammant v. Shriniwas Narayan (1937) AIR
Bom. 51
18
AIR 1957 AP 1012
19
[1967] SC 560
20
AIR 2000 Kant 27
21
ILR 6IA 88
22
AIR 1987 SC 1775
23
Supra. Note 20

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by special leave the question for consideration was whether a gift by a coparcener of his
undivided coparcenary interest to another coparcener is void or not. Respondents argued that it
was a case of renunciation or relinquishment by Respondent of his interest in favour of his
brother and his sons. It was the intention of the donor that the property might be enjoyed by his
brother and his sons and, excepting that the donor had reserved to himself a life interest,
presumably for his maintenance, he gifted his entire interest in the coparcenary property to his
brother. The gift should be construed as relinquishment or renunciation of his undivided interest
by the donor in favour of the other coparceners. Although the gift is ostensibly in favour of his
brother (beneficiary), the donor really meant to relinquish his interest in the coparcenany in
favour of both his brother and his sons. The gift was, therefore, valid construing the same as
renunciation or relinquishment by respondent of his interest in the coparcenary and, accordingly,
the consent of other coparceners was immaterial. In the result, the conclusion arrived at by the
High Court was affirmed by Supreme Court though on a different ground.

Dismissing the appeal by the widow, it was held by Supreme Court that a gift made by the
coparcener to his brother should he construed as renunciation of his undivided interest in the
coparcenary in favour of his brother and his sons, who were the remaining coparceners. A gift
was, therefore, valid and consent of other coparceners was immaterial.

SALE AND MORTAGE

According to Bombay, Madras and Madhya Pradesh high courts a coparcener has power to sell,
mortgage or otherwise alienate for value his undivided interest without the consent of other
coparceners24. In the rest of Mitakshara jurisdiction such alienations are not permitted and a
coparcener has no power to alienate his undivided interest by sale or mortgage, without the
consent of other coparceners25.

DAYABAGA SCHOOL

Under Dayabaga law, since every coparcener has an ascertained and specified share, he can
alienate his value or gratuitously. Obviously he can dispose of his own share and not of others
except with their consent. He can also lease out his portion of estate.

24
Pandu v. Goma AIR 1919 Bom 84
25
Lakshmi v. Kala AIR 1977 All 509

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SOLE SURVIVING COPARCENAR

A sole surviving coparcener has full right of alienation of the joint family property, but if at the
time of alienation another coparcener is in the womb, on his birth, he can challenge such
alienation. When the property passes on to the sole surviving coparcener, it assumes the
character of separate property as long as he doesn’t have a son. The sole surviving coparcener
has the full power of alienating the property the way he likes, by sale, by mortgage or gift since
at the time of alienation there is no other member who has joint interest in the family property26.
Such alienation cannot be challenged by a subsequently born or adopted son. But if another
member was in the womb of his mother at the time of alienation, the sole surviving coparcener
doesn’t have the power of alienation, ad if alienation has been made, such a member can
challenge the alienation or he may ratify it on attaining majority. This power is not fettered by
the contingency of an adoption being made by a widow in the family, a contingency which may
operate at all.

RIGHT TO CHALLENEGE AN ALIENATION

An improper alienation by karta is voidable at the instance of the other coparceners. It is now a
settled position of law that an alienation made by the karta made by the karta without legal
necessity or benefit of estate or in discharge of indispensable duties is not void but merely
voidable at the instance of coparceners27. When a karta or a coparcener or the sole surviving
coparcener oversteps his power for alienation the alienation can be challenged. It can be
challenged the moment the person entitled to challenge comes to know of it and till it is not
barred by limitation. Whenever alienation is challenged, the burden of proof is on the alienee to
show it was for a valid purpose. A stranger who is a purchaser of a coparcener’s interest may
challenge an improper alienation. But an alienating coparcener cannot challenge his own
alienation: this is based on the principle that a grantor cannot derogate from his grant28. A suit for
injunction also lies for preventing an impending alienation29. In Bombay and Madras, when
26
Guramma v. Mallapa AIR 1964 SC 510
27
Raghubanchamni v. Ambika Prasad AIR 1971 SC 1971
28
Bharat Singh v. Jeobodh Lal AIR 1934 All 891
29
Shiv Kumar v. Mool Chand AIR 1972 P.&H. 147

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alienation is challenged by the coparcener, it will be set aside only to the extend of their interest
in joint family property, as under these schools a coparcener has power of alienating his
undivided interest by sale or mortgage30. The Jammu and Kashmir High Court has expressed the
view that when alienee has the possession of the alienated property, the coparcener cannot sue
for a mere declaration that alienation is void. He must also sue for the consequential relief of
possession31. It is also settled law that a coparcener who is in the womb of his mother at the time
of alienation can get the alienation set aside after his birth. If alienation is made by a father who
has sons and before all the sons die another son is born to him, then even after the death of every
son existing at the time of alienation, subsequently born child can challenged the alienation,
provided that the right is not barred by limitation. The overlapping of lives gives him right32. It is
necessary that at the time of his conception there must have existed an unexpired right among
the other coparcener to challenge the alienation. It is not necessary to take recourse to court if
law of getting it declared void. A coparcener may unequivocally repudiate. He may file a suit to
get it declared null and void33.

Alienation is voidable, such as alienation by karta without legal necessity or benefit of estate34.
A voidable alienation is valid as long as it is not challenged. The limitation may perfect the title
of alienee. Any coparcener may file a suit to get the alienation is void in its totality. His right is
only to sue for partition and he is only entitled to mesne profits from the date when specific
allotment of property is made in his favour and not forms the date of purchase or suit partition.
When karta makes a sale for the satisfaction of his personal debts, the vendee has no equity.

30
Marrapa v. Rangasami (1990) 23 Mad 89; Ramapa v. Yellapa Air 1928 Bom 150
31
Gian Chand v. Krishen Singh AIR 1978 J & K 16
32
Shivaji v. Muralidhar AIR 1954 Bom 386 (FB)
33
Krishnaian v. Gopalkrishna AIR 1974 SC 1911
34
Raghubanchamani v. Ambika AIR 1971 SC 776

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CHAPTER 5

Judicial Pronouncements

Shripad gajanan suthankar vs. Dattaram kashinath suthankar and ors 1974 AIR 878

This was a case of the rights of the adoptee under the adoption made after the partition and a
deed of gift to one of the coparceners. First defendant was one of sons of the testator. The other
son died leaving his wife and daughter. A partition was made between testator and his sons in
1944. Allotment for residence and maintenance of K’s widow was made. Then the testator gifted
away his share to the son of first defendant. After the Hindu Succession Act came into existence
in 1956, the widow adopted her daughter’s son. She filed a suit for a fresh partition claiming a
half share of the entire property ignoring the earlier partition and gift. A son adopted by a
widow of a deceased coparcener cannot claim the joint family property in the hands of a
transferee from the heir of the last surviving coparcener, even though the transfer took place
before the adoption. The Supreme Court held that partition should be remade and the plaintiff is
awarded 1/3rd of the total property that was partitioned. The property that was gifted to the
defendant is excluded from partition. The Court made following observations:

1. The doctrine of relation back will not extend to a case where a transfer has already been
made either by the sole surviving coparcener or by his heir.
2. The principle is that when a disposition is made inter vivos by one who has full power
over property under which a portion of that property is carried away, no rights of a son

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who is subsequently adopted can affect that portion which is disposed. Any disposition
testamentary or inter vivos, lawfully made antecedent to the adoption is immune to
challenge by the adopted son.
3. This rule was laid down to make sure that the adopted son can only claim a share as if he
were begotten and alive when the adoptive father breathed his last. Lawful alienation, in
this context, means not necessarily for a family necessity but alienation made
competently in accordance with law.

Kokila v. Swathanthira 2003 Mad SCC 69

In this case, question before the court was that whether the testamentary disposition of the father
amongst his sons and their acceptance of the will would anyway affect the survivorship. In the
present case as the will was executed before the existence of the act, the Will left by father is not
valid in the eye of law and that Will does not have the effect of destroying the right of
survivorship. Sec.30 of Hindu Succession Act, 1956 is prospective. It cannot validate the Will
made by father, who died prior to coming into force of the Act. Thus the property with the father
was devolved upon the sons by way of survivorship.

Pavitri Devi And Anr. vs Darbari Singh And Ors 1993 (3) ALT 25 SC

One Brahmadeo Singh, the son of Tuso Singh filed partition Title Suit against his brothers and
their heirs claiming 1/6th share in the coparcenary properties mentioned in schedules attached to
the plaint. The trial court dismissed the suit. The appellant, Pavitri Devi, filed an application for
substitution of her and her son as legal representatives. Her claim has been founded on two
grounds, namely as the daughter of Brahmadeo Singh as well as the registered gift deed Ex.2
dated August 5, 1980 executed by her father giving his entire share in the joint family property
and put them in possession of 9.96 acres of land. Appellants contended that Brahmadeo Singh
had power to dispose of his undivided share in the joint family property by testamentary
disposition including by way of gift to his daughter. The interest held by him in the coparcenary
property could be bequeathed by the gift deed. Section 6 of the Act provides that when a male
Hindu dies, after the commencement of this Act, having at the time of his death an interest in a

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Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon
the surviving members of the coparcenary. If the deceased had left behind him a surviving
female relative specified in Class I of the Schedule, the interest of the deceased in the
Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the
case may be, under the Act and not by survivorship. Therefore by operation of Section 30 he was
entitled to dispose of his undivided share and the interest in the coparcenary by testamentary
disposition. Even though the court recognised the fact that Pavitri Devi and her son were the
legal representatives i.e. she is a successor in interest, the court rejected their claim of the
appellant on that premise. Mitakshara law by which the Brahmadeo Singh was governed, he had
no power to make gift of his undivided interest in the coparcenary property to his concubine. But
a gift by one coparcener of his undivided share to another coparcener, to the exclusion of the
others is not invalid.

Thamma Venkata Subbamma vs. Thamma Rattamma ILR 6IA 88

This was a landmark case in which Supreme Court for the first time validated a gift deed within
the institution of coparcenary. Before this judgment, the deed of gift was prohibited in the case
of ancestral property governed by the Mitakshara School Family in Hindu Law. A coparcener in
a Joint Hindu executed a deed of gift in favour of another coparcener (his brother) conveying his
entire undivided interest in the coparcenary but reserving a life interest to himself and also
providing that after his death the other coparcener should maintain his wife. The widow of the
coparcener filed a suit of partition against the one who executed a deed of gift on the ground that
the deed of gift was a void document under the Hindu Law, the Trial Court held that the deed of
gift was void and inoperative under the Hindu Law in the absence of consent of the other
coparcener. On appeal the High Court held that the deed of settlement was valid. In this appeal
by special leave the question for consideration was whether a gift by a coparcener of his
undivided coparcenary interest to another coparcener is void or not. The argument of the
respondent was that it was a case of renunciation or relinquishment of a coparcener's interest in
favour of his brother and his sons. Dismissing the appeal it was held that a gift made by the
coparcener to his brother should he construed as renunciation of his undivided interest in the
coparcenary in favour of his brother and his sons, who were the remaining coparceners. A gift
was, therefore, valid and consent of other coparceners was immaterial.

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CHAPTER 6

Testamentary provision in Hindu Succession Act: A critical

analysis
Prior to the Succession Act, neither under the customary law nor under the Madras Act, nor
under the Indian Succession Act, the interest of a coparcener in a Hindu Joint Family could have
been disposed of by testamentary disposition. But s. 30 of the Succession Act made a definite
change in the law by enabling a member of a coparcenary to dispose of his interest in the Hindu
Joint Family coparcenary properties by a will.

The first thing to be noticed is that on the demand for partition there is a division in status, and
though partition by metes and bounds may not have taken place, that family can thereafter never
be considered as an undivided family, nor can the interest of a coparcener be considered to be an
undivided interest. It is a well-established principle in, the Hindu Law that a member of a joint
Hindu family has a right to, intimate his definite and unambiguous intention to the other
members of the joint family that he will separate himself from family and enjoy his share in
severalty. Such an unequivocal intention communicated to the, others will amount to a division-
in status and on, such division he will have a right to get a de facto division of his specific share
of the joint family property, in which till then all of them had an undivided coparcenary interest,
and in which none of them could claim that he had any right to any specific part thereof. Once
the decision to divide has been unequivocally expressed and clearly intimated to his co- sharers,
whether or not the other co-sharers agree, an immediate severance of the joint status is effected
arid his right to obtain and possess the share to which be is admittedly entitled becomes
specified.

THE AMENDMENT OF 2005

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The recent amendments in the Hindu Succession Act, has led substantive change in the women’s
right to property after a long gap of forty nine years. For a long time inheritance laws, assumed a
tedious character mainly due to lack of political stability and courage to stand for common good
even if offends some existing fundamental ideas. The act has made the daughter a member of the
coparcenary. Agricultural property is no more protected and confined to men. No doubt that this
historical legislation will guide the country like a beacon, towards gender equality and women
empowerment.

DISCRIMINATION OF THE FAIRER SEX

The Hindu succession (Amendment) Act, 2005 has – by a radical amendment – given a daughter
of a coparcener a right by birth to become a coparcener in a Mitakshara property. The property
to which she became entitled is capable of being disposed of her by testamentary disposition. A
necessary corollary of this amendment to authorise a female Hindu like a male Hindu to make a
will or any other testamentary disposition of her interest in the Mitakshara coparcenary property.
In the absence of this amendment there would have been litigation from the lowest court to apex
court to settle whether a daughter is given only the right by birth in the coparcenary property or
also the right to bequeath her interest in the property.

The widespread belief which existed after the passing of the 1956 Act was that the
discrimination between daughters and sons were eliminated with the passing of the act. Little did
the female population of the country realize that, this though seemingly a huge step in favour of
gender justice, was in fact more a sleight of hand. Section 10 of the act, distributed the property
of the Hindu male dying intestate equally among all the Class I heirs, as specified in the
schedule.

The roguery lies in customary Hindu law and concept of coparcenary. The Hindu succession act
retained coparcenary. In fact, Section 6 specifically declares that, on death, the interest of a male
Hindu in mitakshara coparcenary property shall devolve by survivorship to other members of the
coparcenary and not by succession under the Act35. However, it laid down that the separate share
of the deceased, computed through the device of deemed partition just before his death, would

35
Asha Nayar-Basu , Of Fathers And Sons, Viewed at 28th April, 2010
<http://www.telegraphindia.com/1051011/asp/opinion/story_5331519.asp>

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devolve according to the Succession Act. The act failed to explain the logic behind such an
exclusion which would take major share of the daughter’s property even though she is entitled to
half share. The inequality which existed between son and daughter has now been removed by the
amendment. For centuries, Hindu fundamentalists have been citing spiritual reasons and
inviolate customs as a ground for this discrimination and blatant preference for sons in this
society. Even though justice has been served to deprived daughters across the country to a larger
extend, the position of the mother vis-à-vis the coparcenary stays the same. Her claim is reduced
into left out portion after the notional partition and be entitled to an equal share with other Class
I heirs only from the separate share of the father computed at the time of the notional partition.

THE CONCLUSION
While working on this project, one quintessential of the questions that passed through minds
was, whether this provision provided enough utility, the society demands?

The transferring of the power to make will or even gift to a coparcener will ensure those values
which kept our families together or is it just another provisions to meet with commercialisation
of our families and property they hold. Here we have Muslim model of will, which ensures that
only 1/3rd of the property is passed through the deed of will and rest is passed by intestate
succession. Analysing the current setup of our society and growing criminal indent, it can be
inferred that Muslim law on testamentary succession is better suited to Indian conditions than the
present Hindu law.

With the passing of the 2005 amendment, it has elevated the status of the women into a whole
new level. The property rights of the women were equalled to that of men. A Woman now
posses the right to dispose the coparcenary property according to her will. She can also gift the
property to any of the coparceners during her life time, but keeping a life-estate for herself intact.

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References
BOOKS, ARTICLES AND JOURNALS

• Desai, SA 2007, ‘Mulla Hindu Law (2 Vols)’, 20th edition, Lexis Nexis, New Delhi.

• Dr. Diwan, Paras 2006, ‘Hindu Law’, 2nd edition, Orient Publishing Company, Allahabad.

• Nagpal, Ramesh Chandra 2008, ‘Modern Hindu Law’, 2nd edition, Eastern Publishing
Company, Lucknow.

WEBILIOGRAPHY

• Indiankanoon.org

• Manupatra.com

• Rishabhdhara.com

• Telegraphindia.com

• Vlex.in

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