PARTITION & INHERITANCE

Hindu Joint Family | Hindu Succession Act, 1956 | Muslim Personal Law

Comprehensive Lecture Notes with Doctrinal Enrichment

Based on 172-slide PPT — All slides covered
[ENRICHED] sections supplement source slides with full legal context
TABLE OF CONTENTS
PART A — PARTITION UNDER HINDU LAW
1. Meaning & Nature of Partition
2. De Jure vs De Facto Partition
3. Rules for Division of Property
4. Consequences of Partition
5. Who Can Ask for Partition
6. Mode of Effecting Partition & Communication
7. Severance of Status — Special Situations
8. Formalities, Partial Partition & Reopening
9. Persons Entitled to a Share at Partition
10. Rules for Calculation of Shares

PART B — HINDU SUCCESSION ACT, 1956

1. Overview, Application & Who is a Hindu
2. Notional Partition
3. 2005 Amendment — Key Changes
4. Succession to Property of a Male Intestate (Sec 8–11)
5. Class I Heirs — Composition & Share Rules
6. Class II Heirs, Agnates & Cognates
7. Succession to Property of a Female Intestate (Sec 14–16)
8. General Principles — Sec 18–28
9. Dwelling House (Sec 23) & Testamentary Succession (Sec 30)

PART C — MUSLIM PERSONAL LAW

1. Sources of Muslim Law
2. Schools of Muslim Law — Sunni & Shia
3. Gift (Hiba) under Muslim Law
4. Will (Wasiyat) under Muslim Law
5. Inheritance under Sunni Law
6. Inheritance under Shia Law

PART D — CASE LAWS CATALOGUE

PART E — DOCTRINES GLOSSARY & EXAM ANGLES
 PART A — PARTITION UNDER HINDU LAW

1. MEANING AND NATURE OF PARTITION

Partition means the division or splitting of a joint Hindu family (JHF) into smaller, separate and independent
units, with conferment of separate status on the undivided coparceners. It is not merely the division of
property — it is the disruption of the undivided coparcenary. Because of this, at least two coparceners must
exist for a partition to be possible.

The Coparcenary Precondition

A coparcenary has two basic incidents: (a) community of interest — joint ownership of coparcenary property;
and (b) unity of possession — common physical enjoyment of that property. Unless a coparcenary exists,
partition cannot be effected.

Example (Slides 2–3): A joint family of father F, wife W, son S, son's wife SW and daughter D. The
coparceners are F and S. On partition the family splits into two units — F, W and D form one unit; S and SW
form another. If F dies before partition, only S remains as the sole surviving coparcener; no partition is
possible as he is the only coparcener.

[ENRICHED] The concept of a 'sole surviving coparcener' is central to the intersection of partition and
survivorship. He holds the property as his separate property but if a female is born, she now becomes a
coparcener under the 2005 amendment — altering this calculus.

[ENRICHED] Under the Mitakshara school (applicable across India except Bengal), birth gives a son an
interest in joint family property. This is the foundation of coparcenary rights.

2. DE JURE PARTITION vs DE FACTO PARTITION (Partition by Metes and

Bounds)
De jure partition (severance of status): When the community of interest is divided, the probable shares of
coparceners become fixed. The shares are ascertained even if actual physical division has not occurred. This
is also called partition of status or severance of status.

• Upon de jure partition, the shares of each coparcener become fixed fractions.
• Coparceners may continue to live together as tenants-in-common even after de jure partition.

De facto partition (partition by metes and bounds): The physical allotment of specific portions of the
property to each coparcener, effecting exclusive possession. A partition is complete in the de jure sense the
moment the shares are fixed.

Example (Slide 4): Father and son effect severance of status but continue to live in the same house. Each
has a fixed half share but the specific half to be possessed cannot yet be ascertained. If the son then dies, his
half goes to his wife by inheritance — not to the father — because de jure partition had already occurred.

[ENRICHED] The distinction between de jure and de facto partition is judicially critical. In Appovier v.
Rama Subba Aiyan (1866 PC), the Privy Council held that a partition is complete the moment the shares
are defined — physical separation is not necessary. This remains foundational.

3. RULES FOR DIVISION OF PROPERTY

When property is capable of division, it must be divided in specie. Where division would destroy or
substantially diminish intrinsic value, the following rules apply (Slides 5–6):
 • 1. Joint family property & possession: Exclusive possession of JFP does not create an inference of
partition or self-acquisition. (Slide 5 — brothers' agricultural land example.)
• 2. Compulsory common enjoyment: Certain property by its nature cannot be divided — stairs, wells, roads,
rights-of-way. These remain in common enjoyment.
• 3. Balancing corresponding values: Household items (furniture, utensils, vehicles, ornaments) are
distributed so that the aggregate value of items received is roughly equal across shares.
• 4. Money compensation — Principle of Owelty: Where exact division in kind is impossible, one party pays
the other a sum to equalise values. This is called owelty of partition.
• 5. Sale of impartible property and distribution of cash proceeds: If one or more coparceners want a single
impartible item, it can be sold and proceeds equally shared.
• 6. Sharing by turns: Where property has special familial significance (family idols, place of worship),
members may share by turns; in case of disagreement, the court may direct the eldest to retain it while
granting other members access.

[ENRICHED] Owelty is a common law concept absorbed into Hindu law practice. It ensures that where
precise in-kind division is impracticable, monetary equalisation preserves the principle of equal shares.

[ENRICHED] Agricultural land and ancestral houses often require the 'sell and divide' mechanism
because physical division destroys their productive utility.

4. CONSEQUENCES OF PARTITION
Upon partition, a coparcener acquires individual status. Key consequences (Slides 7–9):

• (a) Separate property: The share received becomes separate property vis-à-vis those from whom he has
separated. However, if he has male issue, the share remains coparcenary property with respect to those
male descendants.
• (b) No male issue: If he dies as the sole surviving coparcener, property passes to female dependants by
inheritance or by testamentary disposition. The separated collaterals have no claim.
• (c) Bachelor: If the person who dies is a bachelor, property goes to father or brothers from whom he
separated, by inheritance.

Sole Mutation Without Partition — Impermissible

If property stands in the name of the HJF, an exclusive mutation in the name of one coparcener is not
permissible. For demarcation of exclusive title, a partition must first be effected.

Adjustment of Claims Before Partition

Before partition is effected, provision must be made for: (i) unmarried daughters; (ii) female members; (iii)
disqualified coparceners; (iv) funeral expenses; (v) payment of father's debts. The rule is to give them
one-fourth of their shares or provide for maintenance and marriage expenses.

• A male coparcener does not get his marriage expenses paid from family funds as a condition of partition.
• No coparcener can ask the Karta to account for profits unless specific fraud or misappropriation is alleged.
• Where disparity existed in discharge of personal debts of one coparcener, this must be adjusted at the
time of partition.
• If a coparcener spent personal income to improve family property, he is entitled to reimbursement (unless
a gift).
• A coparcener entirely excluded from enjoyment when family was joint is entitled to mesne profits at
partition.
5. WHO CAN ASK FOR PARTITION
As a general rule, only coparceners have the right to demand partition (Slides 10–12):

• Wives of coparceners are members of the JF but not coparceners — they cannot demand partition.
• A Hindu widow (under classical law) can get a share in the absence of male descendants and may file a
partition suit.
• Children of bigamous marriages (pre-1955) are legitimate and entitled to seek partition. Post-1955,
children of a second void marriage inherit separate but not ancestral property.
• A major coparcener of sound mind can demand partition at any time, without giving any reason to the
Karta.
• A minor can file through his next friend; the court acts as parens patriae and assesses whether partition
would benefit the minor.

School-Specific Rules
Bombay: A son cannot ask for partition if the father is joint with his own father, brothers or collaterals. The
right arises only after the father separates.

Punjab (customary law): Sons do not have a right by birth in property held by the father, so they cannot
demand partition from him.

Dayabhaga: The son has no right by birth, therefore no right to demand partition from the father.

Conversion and Separation

Two specific conducts produce ipso facto separate status: (i) renunciation of Hinduism; (ii) marriage under the
Special Marriage Act, 1954. Under the Caste Disabilities Act, 1850 (now repealed), conversion did not forfeit
coparcenary rights but produced automatic separation.

Example (Slide 12): In a coparcenary of father F and sons S1 and S2 (each holding one-third), S1 converts
to Islam. S1's probable share crystallises to a fixed one-third. On the father's death, S2 (not S1) takes the
father's one-third under survivorship, as S1 is already a separate member.

Powers of the Father

The father has superior powers. He cannot prefer one son over another at partition — unequal distribution is
binding only if all coparceners consent. Unconsenting coparceners may repudiate or challenge it.

Partition by agreement: A panchayat resolution or memorandum of family settlement reduced to writing,

explaining the settlement, constitutes a family arrangement admissible without registration. However,
relinquishment by sisters must be in a registered document (Sita Ram Bhama v. Ramavatar Bhama, 2018).

After-Born Son
A son conceived before and born after partition may demand reopening if no share was reserved for him. If
pregnancy was known, partition must be deferred or a share kept aside. If pregnancy was unknown, the
after-born son may reopen the partition. Under the post-2005 position, daughters in the same position have
equal rights.

6. MODE OF EFFECTING PARTITION — COMMUNICATION

REQUIREMENT
A major coparcener must expressly manifest his intention to separate. Three essentials are required (Slide
16):
 • 1. Formation of an intention to separate from the joint family.
• 2. An unequivocal declaration of this intention.
• 3. Communication of this intention to the Karta (or, if unavailable, to other coparceners).
It is not sufficient that a desire to separate appears in a will — it must have been communicated during the
lifetime of the person expressing it. A will expressing such intent, discovered only after death, does not effect
partition (A. Raghavamma v. A. Chenchamma, AIR 1965 SC).

Effective Date of Severance

Severance takes effect on the date the communication is complete, not the date of formation of intention or
the date of sending. If a letter is sent on January 1 and received on January 5, and a coparcener dies on
January 3, the date of effective severance (and hence calculation of shares) is January 5.

Doctrine of Relation Back

The rule that severance takes effect only when knowledge reaches the Karta is strictly applied — transactions
by the Karta between posting and receipt remain binding. However, if the coparcener executes a will after
posting (even before receipt), the will is valid as he is already a separate member from the posting date for
some purposes.

[ENRICHED] The 'doctrine of relation back' interplays with the strict communication rule. The Allahabad
High Court and the Supreme Court have distinguished between the date of severance (when intent is
formed and expressed) and the date of effect (when communication is complete). The share is
determined as of the effective date.

7. SEVERANCE OF STATUS — SPECIAL SITUATIONS

Severance Through a Partition Suit

A coparcener manifests his intention by filing a partition suit. If he dies during pendency of the suit, he dies as
a separate member and his legal representatives continue the suit. The court cannot inquire into reasons
behind the demand.

Partition Suit by a Minor

A minor's suit is filed through his next friend. The court assesses whether partition is for the minor's benefit. If
the court concludes it is, the severance of status relates back to the date of institution of the suit — the minor
is deemed a separate member from that date.

Example (Slides 22–24): A 2-year-old minor's maternal grandfather filed a partition suit on his behalf. During
pendency, the minor died. The court held: (i) the minor died as a separate member because the father and
brothers were acting against his interests, justifying partition; (ii) severance related back to the date of filing;
(iii) the minor's share passed to his mother by inheritance, not to the coparceners under survivorship.

Revocation of Partition
Once partition is effected it cannot be revoked by unilateral withdrawal. However, where the intention is put in
course of transmission but withdrawn before it reaches the Karta, no partition takes place.

Kedarnath v. Ratan Singh: Withdrawal of a partition suit before trial meant no severance. But where
summons have been served (communication complete), partition cannot be revoked.

Puttrangamma v. M.S. Ranganna (1968): The Karta issued a notice from hospital declaring intention to
separate. A coparcener's nephew tried to tear it. The notice was registered at the post office but later
withdrawn at the persuasion of family. The Karta then signed a vakalatnama for a partition suit and died on
the day the suit was instituted. SC held: Communication was complete the moment one coparcener (the
nephew) witnessed the notice in hospital. Withdrawal after communication was ineffective. He died as a
separate member and his share passed to his daughters by inheritance.

8. FORMALITIES, PARTIAL PARTITION AND REOPENING OF PARTITION

Formalities
Partition is not a transfer of property within the TPA, 1882. It can be oral or written. If in writing and value of
property exceeds Rs. 100, it must be attested and registered. An unregistered written partition document is
inadmissible in evidence unless prior oral partition or intent to separate is proved. A family arrangement can
be oral and is admissible without registration.

Partial Partition — As to Property

It is permissible for members of the JF to effect a partial partition, both with respect to property and with
respect to persons. Different properties may be divided at different times. Example: Agricultural land is
divided now; the family house later.

Partial Partition — As to Persons

One coparcener may separate from the family without disturbing the joint status of the remaining
coparceners. However, a coparcener cannot maintain joint status with one and separate status with another
— such a partial separation among members is impermissible. (Mewa Devi v. Om Prakash Agarwal, AIR
2008 — youngest son became sole owner after elder brothers separated; filed eviction suit against elder
brother who had remained in house.)

Suit for Partition

In a partition suit, all coparceners must be made defendants. If partition is sought between branches, only the
heads of respective branches are necessary parties. Besides coparceners, females entitled to a share, and
purchasers of a coparcener's interest, must also be made defendants.

Reopening of Partition
Once effected, partition is full and final. Upon partition, erstwhile coparceners hold their shares as separate
property with exclusive valid title. They may transact and create valid titles in favour of third parties. A
partition cannot be reopened merely because a survey number was not mentioned, or because it remained
unchallenged for 30 years. It may be reopened only in the following cases:

• 1. More property is discovered after partition.

• 2. Property was concealed by fraud by a coparcener.
• 3. Partition was unjust and unfair to a minor.
• 4. Limitation: A suit to reopen must be filed within 12 years from when the cause of action arose. In cases
of relinquishment, limitation runs from when the plaintiff became aware of the relevant facts.

9. PERSONS ENTITLED TO A SHARE AT THE TIME OF PARTITION

The following categories of persons are entitled to a share at partition (Slides 32–35):

• A) Coparceners: Sons, son's sons, and son's son's sons — the first four generations.
• B) Son of void/voidable marriage: A child of such a marriage is a legitimate child for purposes of
inheriting the separate property of parents only — cannot inherit from any other relation.
 • C) Illegitimate son: Inherits only from his mother, not from the father. Under some schools (e.g.,
Bombay), a Dasiputra (son of a concubine) may obtain a share from the father if given during the father's
lifetime. On the father's death, he can inherit up to one-fourth of a brother's share under survivorship.
• D) After-born son: Treated as if in existence at partition if pregnancy was known; can reopen if no share
was reserved.
• E) Disqualified coparceners: Pre-1928 Act, diseases like congenital blindness, idiocy, leprosy
disqualified from taking a share. The Hindu Inheritance (Removal of Disabilities) Act, 1928 removed all
disqualifications except congenital idiocy or lunacy.

Females Entitled to a Share

Three categories of females may claim a share at partition under the Benares, Mithila and Bombay schools
(not Madras school):

• A) Father's wife (or wives, pre-1955)

• B) Mother
• C) Paternal grandmother
Rules governing their entitlement (Slides 34–35):
■ (i) Applicable only under Benares, Mithila and Bombay schools — not Madras.
■ (ii) Father's wife and widowed mother are entitled only where they were not paid stridhana equal to or greater
than the value of their partition share.
■ (iii) They cannot demand or ascertain their share before actual partition — they have no pre-existing right,
only a right of maintenance until partition.
■ (iv) If a female entitled to a share dies before partition, her share does not pass to her legal representatives
but remains in the common JFP pool.
■ (v) Mere severance in status does not entitle her to get her share — she gets it only at partition by metes and
bounds.
■ (vi) If she is not given her share after partition, she may reopen the partition.
■ (vii) Pre-HSA 1956: she was a limited owner. Under the 1956 Act: absolute owner.

Father's wife at partition: She takes a share equal to a son. Example: If father, wife and son partition, each
takes one-third. If the father dies before partition, the son takes the entire property under survivorship — the
wife gets nothing.

10. RULES FOR CALCULATION OF SHARES IN PARTITION BY METES

AND BOUNDS
The following rules govern the calculation of shares (Slides 37–38):

• 1. Partition must be effected first between generations — e.g., father and his sons.
• 2. The share of the father and each son must be absolutely equal.
• 3. The father takes his share as exclusive/separate property. The son takes as coparcenary property (if he
has male issue); as sole surviving coparcener if he has no male issue.
• 4. If a son dies before partition and leaves male issue, his branch takes the share he would have taken.
The benefit of his death goes to his male descendants, not to collaterals or ascendants.
• 5. If the JF consists only of brothers, each takes an equal share — per capita distribution.
• 6. Each branch takes per stirpes (according to the stock) but members within a branch take per capita
among themselves.
• 7. Father's wife = son's share; Mother = brother's share; Paternal grandmother = grandson's share.
[ENRICHED] The per stirpes vs per capita distinction is fundamental in shares calculation. Per stirpes
means a branch collectively takes the deceased ancestor's share; per capita means each individual living
heir takes an equal independent share. In partition between brothers only, it is purely per capita.
 PART B — HINDU SUCCESSION ACT, 1956

1. OVERVIEW, APPLICATION AND WHO IS A HINDU

The Hindu Succession Act, 1956 amended and codified the law of intestate succession for Hindus and briefly
touched testamentary succession, classical joint family law and coparcenary. It defeated the doctrine of
survivorship and introduced a uniform inheritance scheme.

Who is a Hindu — Section 2

The Act applies to:

• (i) Any person who is a Hindu, Buddhist, Jain or Sikh by religion.

• (ii) Any person who is born of Hindu parents (both parents Hindu, or one parent Hindu and the person is
brought up as a Hindu).
• (iii) Any person who converts or reconverts to Hinduism.
• (iv) Illegitimate children, if both parents are Hindu or they are brought up as Hindu.
• (v) Persons not governed by Muslim, Christian, Parsi or Jewish personal law (unless proved otherwise).
Exclusions: Scheduled Tribe members (unless Central Government extends it). Residents of Goa, Daman &
Diu (Portuguese civil law applies). Renoncants of Puducherry (former French settlement residents who chose
French citizenship status) are excluded; other Hindus of Puducherry are included. The Jammu and Kashmir
Reorganisation Act extended HSA to Hindus of J&K and Ladakh.

Effect of Marriage under the Special Marriage Act, 1954

A Hindu married under the SMA retains their religion. Post-2005 amendment, mere marriage under the SMA
does not automatically sever coparcenary. However, succession of such a person is governed by the Indian
Succession Act, 1925 (Section 21 SMA), not the HSA 1956 — unless both spouses are Hindus, Buddhists,
Jains or Sikhs, in which case Section 21A applies Hindu law (Slide 53).

Application to Transgender Persons

The Transgender Persons (Protection of Rights) Act, 2019 is silent on inheritance. In matters of succession,
transgender persons are governed by their customary practices. In Sweety (Eunuch) v. General Public, the
court held (relying on NALSA v. UOI) that the guru of the deceased transgender, having established her
credentials, was entitled to the property under the community's customary practices.

2. NOTIONAL PARTITION — SECTION 6

A notional partition is a legal fiction — an imaginary partition assumed by law just before the death of a
coparcener — to determine the share of the deceased. It applies under Section 6 HSA 1956. No actual
partition need have taken place.

How Notional Partition Works

Step 1: Imagine a partition taking place immediately before the coparcener's death. Step 2: Determine the
share of each coparcener (including daughters post-2005). Step 3: The deceased's share is then distributed
among his Class I heirs by intestate or testamentary succession.

Example (Slides 40–41, 84–85): Joint family of Father (A) + Father's father (F) + 2 sons (S1, S2) + 1
daughter (D). A dies in 2006 as an undivided Mitakshara coparcener.
 • First partition: Between F and A — each takes 1/2.
• Second partition: Among A, S1, S2 and D — each takes 1/4 of 1/2 = 1/8.
• A's share = 1/8. This 1/8 passes by intestate succession (F is Class II; excluded). S1, S2 and D each take
1/3 x 1/8 = 1/24.
• Final shares: F = 1/2; S1 = 1/8 + 1/24 = 1/6; S2 = 1/6; D = 1/6.

3. THE 2005 AMENDMENT — KEY CHANGES

The Hindu Succession (Amendment) Act, 2005 introduced landmark changes effective from 9 September
2005 (Slides 42–48):

• 1. Daughters as Coparceners: A daughter of a coparcener becomes a coparcener by birth in a

Mitakshara JHF, with the same rights, liabilities and powers as a son — including right to demand
partition, dispose of share by will, and become Karta (if eldest coparcener).
• 2. Abolition of Doctrine of Survivorship: The share of a deceased coparcener now devolves by
testamentary or intestate succession, not by survivorship.
• 3. Abolition of Pious Obligation: Sons are no longer liable to pay their father's personal debts. (This
applies to debts contracted after the amendment.)
• 4. Notional Partition retained but modified: Daughters included as coparceners in the notional partition
calculation.
• 5. Omission of Section 23: Female heirs can now immediately demand partition of the family dwelling
house. The old restriction (female heirs must wait for male heirs to divide it) is abolished.
• 6. Omission of Section 24: Certain widows who had remarried were earlier disqualified. This
disqualification is now removed.
• 7. Section 6(4): Any partition effected before 20 December 2004 cannot be reopened.
• 8. Section 6(5): A valid 'partition' for this section means partition by registered deed or by court decree.
• 9. Agricultural property: The provision excluding agricultural property was deleted, but the Act does not
clarify whether agricultural property is now subject to HSA.
• 10. Added 4 new heirs to Class I; empowered female coparcener to make a testamentary disposition of
her share.

State Amendments Before 2005

Tamil Nadu (1989), Karnataka, and Andhra Pradesh had granted daughters coparcenary rights before the
central amendment. Since succession is on the Concurrent List, any state amendment that conflicted with the
central act could be declared ultra vires the Constitution.

[ENRICHED] The retrospective effect of the 2005 amendment was finally settled in Vineeta Sharma v.
Rakesh Sharma (2020). See the Cases Catalogue in Part D.

[ENRICHED] The abolition of the pious obligation rule was prospective — debts contracted before the
amendment may still carry the obligation under some judicial interpretations [verify citation before formal
use].

4. SUCCESSION TO PROPERTY OF A MALE INTESTATE — SECTION 8

A person who dies without a will is an intestate. Section 8 provides the general rules of succession for a male
Hindu dying intestate:

• (a) Firstly — Class I heirs (relatives specified in Class I of the Schedule).

• (b) Secondly — if no Class I heir, then Class II heirs.
• (c) Thirdly — if no Class I or II heir, then agnates of the deceased.
 • (d) Lastly — if no agnate, then cognates of the deceased.

5. CLASS I HEIRS — COMPOSITION AND DISTRIBUTION RULES

Class I heirs consist of 11 females and 5 males (Slides 57–64):

List of Class I Heirs

• Mother (M), Widow (W), Daughter (D), Son (S)
• Son of predeceased son (SS), Daughter of predeceased son (SD), Widow of predeceased son (SW)
• Son of predeceased son of predeceased son (SSS), Daughter of predeceased son of predeceased son
(SSD), Widow of predeceased son of predeceased son (SSW)
• Son of predeceased daughter (DS), Daughter of predeceased daughter (DD)
• Son of predeceased daughter of predeceased daughter (DDS), Daughter of predeceased daughter of
predeceased daughter (DDD)
• Daughter of predeceased son of predeceased daughter (DSD), Daughter of predeceased daughter of
predeceased son (SDD)

Definitions and Nuances

Mother: Includes biological and adoptive mother; excludes stepmother. An unwed mother inherits from her
illegitimate son.

Widow: Takes a share equal to a son. If more than one widow, all collectively take one son's share and
divide equally as tenants-in-common. Must be widow on the date succession opens. Includes deserted wife,
wife under judicial separation, unchaste wife — but NOT a divorced wife.

Daughter: Includes natural-born or adopted daughter; excludes stepdaughter and illegitimate daughter.
Daughter of a void/voidable marriage is legitimate and inherits.

Son: Includes natural-born or adopted son; excludes stepson and illegitimate son. An illegitimate son is not a
Class I heir under Section 8.

Widow of predeceased son: Must be a widow on the date succession opens (date of intestate's death). If
she remarried before succession opens, she is disqualified.
Legitimacy in second generation: The statutory legitimacy of a child born of a void/voidable marriage is
personal — it does not extend to the next generation. So the grandchildren through such a child do not
succeed to the grandfather (intestate).

Rules of Distribution Among Class I Heirs (Section 10)

• 1. Each son, daughter and mother take an equal share.
• 2. The widow(s) collectively take one share (equal to a son); shared equally among them.
• 3. A predeceased son represented by son, daughter or widow gets an equal share — his branch takes it.
• 4. Within the branch, widow, surviving sons and daughters divide the branch's share equally.
• 5. Rules for the branch of a predeceased son of a predeceased son are the same.
• 6. A predeceased daughter survived by son or daughter gets an equal share; her children divide it equally.

Illustration 1 (Slide 63): Hindu male A dies, survived by: Mother M, Widow W, Son S, Daughter D. Each
takes 1/4.

6. CLASS II HEIRS, AGNATES (CLASS III) AND COGNATES (CLASS IV)

Class II Heirs
Class II consists of 19 heirs. As long as any single Class I heir is present, no Class II heir inherits. The former
categories exclude the latter within Class II. All heirs of the same category within Class II take per capita
(Slides 65–68).

• Category I: Father
• Category II: Son's daughter's son; Son's daughter's daughter; Brother; Sister
• Category III: Daughter's son's son; Daughter's son's daughter; Daughter's daughter's son; Daughter's
daughter's daughter
• Category IV: Brother's son; Sister's son; Brother's daughter; Sister's daughter
• Category V: Father's father; Father's mother
• Category VI: Father's widow; Brother's widow
• Category VIII: Mother's father; Mother's mother
• Category IX: Mother's brother; Mother's sister
Note: 'Brother' and 'sister' here exclude uterine blood. The patriarchal preference for paternal over maternal
relations is retained in Class II.

Father: Excludes every other Class II heir. He either gets everything (in absence of Class I heirs) or nothing
(in their presence). His presence also excludes brothers, sisters and true grandfather.

Agnates — Class III

An agnate is a person related to the intestate through male relatives only (male chain). May be male or
female; direct ascendants, descendants or collaterals. No limit on degrees removed. Rules of preference
among agnates (Slides 70–71):

• 1. Each generation = one degree.

• 2. Starting point (first degree) = the intestate himself.
• 3. Degree of ascent = upward direction; degree of descent = downward direction.
• 4. Where an heir has both ascent and descent degrees, each is counted separately.
• 5. An agnate with only descent degrees is preferred over one with only ascent degrees.
• 6. Where both have ascent and descent degrees, fewer ascent degrees = preferred.

Cognates — Class IV
A cognate is related through a mixed chain (at least one female relative in the chain). Cognates inherit only
when no Class I, Class II heir, and no agnate is present. The Act's patriarchal preference — even a very
remote agnate excludes a much nearer cognate — has been widely criticised.

Example (Slide 71): A dies. Paternal aunt's son (cognate) and father's paternal grandfather's grandson's
grandson (agnate with 4 ascent and 4 descent degrees) both survive. The remote agnate excludes the nearer
cognate.

7. SUCCESSION TO PROPERTY OF A FEMALE INTESTATE — SECTIONS

14–16

Section 14 — Full Ownership for Female Hindus

Section 14(1): Any property possessed by a female Hindu — whether acquired before or after 1956, and by
whatever means (inheritance, partition, gift, maintenance, purchase, self-earnings, stridhana, prescription,
etc.) — is held by her as full absolute owner, not as a limited owner.
Section 14(2) — Exception: If property is given under a gift deed, will, court decree, award, or settlement
deed, and the document itself expressly limits her interest to a life estate, she remains a limited owner under
those terms. Section 14(2) is an exception to Section 14(1).

V. Tulasamma v. Sesha Reddy (1977 SC): Property given to a widow in lieu of maintenance before 1956 —
on the commencement of HSA 1956, by operation of Section 14(1), she became the absolute owner.

Section 15 — Order of Succession for Female Intestate

(1) General order:
■ Firstly: Sons, daughters (including children of predeceased son/daughter), and husband.
■ Secondly: Heirs of the husband.
■ Thirdly: Mother and father.
■ Fourthly: Heirs of the father.
■ Lastly: Heirs of the mother.

(2) Special rules — Section 15(2):

• (a) Property inherited from her father or mother: if she dies without children → reverts to heirs of the father
(reversion to natal family).
• (b) Property inherited from husband or father-in-law: if she dies without children → reverts to heirs of the
husband (reversion to husband's heirs).

Section 16 — Manner of Distribution Among Female Intestate's Heirs

Rule 1: Earlier entry excludes later entries. Persons in the same entry inherit simultaneously and equally.

Rule 2: Children of predeceased son/daughter take the share of their parent by representation.

Rule 3: Where succession goes to 'heirs of father/husband/mother', their shares are determined as if that
person had died intestate immediately after the woman's death.

Example (Slide 78): Hindu woman dies leaving husband, one son, one daughter. Property divided equally:
husband = 1/3, son = 1/3, daughter = 1/3.

8. GENERAL PRINCIPLES OF SUCCESSION — SECTIONS 18–28

• Section 18 — Full blood preferred to half blood: Where two heirs are in the same degree, full blood is
preferred over half blood. Full brother (same father and mother) excludes half brother (same father,
different mother).
• Section 19 — Mode of succession of two or more heirs: Multiple heirs inherit per capita (equal
individual share) and as tenants-in-common (each has a distinct transferable share) — not as joint
tenants.
• Section 20 — Right of child in womb: A child in the womb at intestate's death, born alive later, has the
same inheritance rights as if born at the time of death.
• Section 21 — Simultaneous deaths: If two persons die in circumstances where it is uncertain who died
first, the younger is presumed to have survived the elder.
• Section 22 — Preferential right to acquire property: If an heir who inherits along with others wants to
transfer his share, the co-heirs have a preferential right of purchase. This prevents outsiders entering
family property.
• Section 25 — Murderer disqualified: A murderer or abettor of murder is disqualified from inheriting the
murdered person's property. Principle: no one profits from his own wrong.
• Section 26 — Convert's descendants: Children born after a Hindu converts to another religion are
disqualified from inheriting Hindu relatives' property unless they are Hindus when succession opens.
 • Section 27 — Disqualified heir treated as predeceased: A disqualified heir is deemed to have died
before the intestate; the property passes to the next eligible heir.
• Section 28 — Disease or defect no disqualification: No person is disqualified from inheriting merely
because of disease, physical defect, deformity, or disability.

9. DWELLING HOUSE (OLD SEC 23) AND TESTAMENTARY SUCCESSION

(SEC 30)

Dwelling House — Old Section 23 (Omitted by 2005 Amendment)

Before 2005, Section 23 provided that where a Hindu male died intestate leaving both male and female Class
I heirs, and the property included a dwelling house wholly occupied by family members, female heirs could
not demand partition of the dwelling house until the male heirs chose to divide it. A daughter's right of
residence was limited to unmarried, deserted, separated or widowed daughters.

After 9 September 2005: Section 23 was completely omitted. Now daughters have equal rights; can
immediately claim partition; no waiting for male heirs; equal right in the family house as sons.

Testamentary Succession — Section 30

Any Hindu (including a female and a coparcener) can execute a will. Section 30 expressly recognises this
right. By the Explanation to Section 30, even the interest of a Hindu in Mitakshara coparcenary property can
be disposed of by will. After the 2005 amendment, a daughter as coparcener can will away her share.

Eligibility to Make a Will

• Must be a Hindu, Buddhist, Jain or Sikh.
• Must be a major (18 years or above).
• Must be of sound disposing mind — understands the nature of the act, extent of property, persons who
may claim it, and the legal effect of the will.
• Must have free consent — no fraud, coercion, undue influence, misrepresentation.
• Property must be disposable — self-acquired, separate, share in coparcenary property, partition share, or
absolute property of a female Hindu.
• Formal requirements: signed by testator; attested by two witnesses. Registration is optional.
 PART C — MUSLIM PERSONAL LAW

1. SOURCES OF MUSLIM LAW

Primary Sources
• Quran: The supreme source — direct revelations of Allah to Prophet Muhammad. Lays down rules on
marriage, divorce, inheritance, maintenance, guardianship and contracts.
• Sunnat/Hadith: Traditions, sayings, actions and approvals of the Prophet. Supplements the Quran.
Types: Sunnat-ul-Qaul (sayings), Sunnat-ul-Fail (conduct/actions), Sunnat-ul-Taqrir (silent approval).
• Ijma: Consensus of learned jurists (Ulema) on a point of law when Quran and Sunnat are silent. Binding
when unanimous.
• Qiyas: Analogical deduction — applying a Quranic or Sunnat principle by analogy to a new case with
similar reasoning.

Secondary Sources
• Custom (Urf): Valid local Muslim customs recognised if not contrary to Quran or Sunnat. Important in
marriage ceremonies, dower practices and family arrangements.
• Judicial Decisions: Supreme Court, High Courts and Privy Council decisions interpreting Muslim
personal law are authoritative in India.
• Legislation: Statutes such as the Muslim Personal Law (Shariat) Application Act, 1937.
• Justice, Equity and Good Conscience: Applied by Indian courts where no clear rule exists.

2. SCHOOLS OF MUSLIM LAW

Muslims are divided into two sects: Sunnis and Shias. Both accept the Quran and Sunnat as primary sources.

Sunni Schools (4)

• Hanafi School: Founded by Abu Hanifa. Default school in North India, Pakistan, Bangladesh,
Afghanistan, Turkey, Syria, Lebanon, China. Key text: Hedaya. In India, 'Sunni law' is often equated with
Hanafi law.
• Maliki School: Founded by Malik ibn Anas (8th century AD, Medina). Relied on traditions of the Prophet;
in conflict, on Ijma of Medina jurists. Key text: Kitab-ul-Muwatta. Followed in Spain, Morocco, North and
East Africa.
• Shafei School: Founded by Muhammad ibn Idris ash Shafei (early 9th century). He established the
doctrine of Qiyas and formalised Ijma as a source. Key texts: Minhaj-al-Talibin and Nihajat-al-Muhtaj.
Followed by Sunni Muslims of South India, Egypt, Malaysia, Indonesia.
• Hanbali School: Founded by Ahmad ibn Hanbal (9th century, Baghdad). Relied on traditions; developed
the doctrine of usul. Followed in Central Arabia, parts of Syria and Central Asia. Key texts: Taat-ur-Rasul
and Kitab-ul-Alal.

Shia Schools (3) — Concept of Imamate

Imamate (Imamah) means the institution of the Imam as supreme spiritual and temporal leader of the Muslim
community. The Imam protects religion, administers justice, enforces Shariat, defends the community and
guides in spiritual matters.

• Ithna Ashari (Twelvers / Ja'fari): Largest and most important Shia school; default Shia school for Indian
legal problems. Believes in 12 Imams; follows Ja'fari fiqh; recognises muta (temporary marriage).
 • Ismaili (Seveners): Split after the 6th Imam; recognises 7 Imams. Important Indian communities: Khojas,
Bohras (Daudi and Sulaymani). Have distinct rules in succession, religious authority, community property
and endowments.
• Zaidya (Fivers): Recognises 5 Imams (last: Zaid ibn Ali). Most moderate Shia school; in legal reasoning
often close to Sunni Hanafi law. Inheritance rules less rigid on Imam-based doctrines.

3. GIFT (HIBA) UNDER MUSLIM LAW

Under Muslim law, a gift is called Hiba. It is an immediate and unconditional transfer of ownership of property
by a donor to a donee without consideration. Definition: 'a transfer of property made immediately and without
any exchange by one person to another and accepted by or on behalf of the latter.'

Essentials of a Valid Hiba

• 1. Declaration by donor (Ijab): The donor must clearly show intention to gift the property.
• 2. Acceptance by donee (Qabul): The donee must accept the gift during the lifetime of the donor.
• 3. Delivery of possession (Qabza): The donor must transfer possession — actual or constructive — to
the donee. This is the most important requirement. Without delivery, the gift is generally invalid.

Capacity of Donor and Donee

Donor must be a Muslim, major, of sound mind, owner of the property, and must act voluntarily. A Muslim can
gift the whole of his self-acquired property to one heir, excluding others.

Donee may be a Muslim or non-Muslim, minor, juristic person, or even an unborn child if born within 6 months
of the gift. Acceptance for a minor can be made by a guardian.

Subject Matter
Property must be existing, transferable, owned by donor, definite and identifiable. Both movable and
immovable property can be gifted.

Oral Gift — Distinction from TPA

An oral gift is valid under Muslim law. Unlike the Transfer of Property Act, 1882, a written and registered gift
deed is not necessary — Section 129 TPA saves Muslim gifts. Gift must be without consideration. Ownership
passes immediately after valid completion.

Six Criteria for Validity (SC)

• 1. Donor must be sane, major, and owner of the property being gifted.
• 2. The property gifted must be in existence at the time of the Hiba.
• 3. If divisible, the thing gifted must be separated and made distinct.
• 4. The property gifted must be lawful to benefit from under Shariat.
• 5. The thing gifted must not be accompanied by things not gifted.
• 6. The property gifted must come into possession of the donee, or his representative, guardian or
executor.

Exceptions to Delivery of Possession

• 1. Gift by husband to wife, or vice versa.
• 2. Gift by father to minor child, or by guardian to ward.
• 3. Donor and donee reside in the same property which is the subject matter of the gift.
Kinds of Gift
• Hiba: Simple gift without consideration.
• Hiba-bil-iwaz: Gift for consideration/return — resembles a sale. Requires valid original gift and real, bona
fide consideration. Registration is necessary (if immovable); delivery of possession is not essential; gift of
mushaa is valid; generally irrevocable.
• Sadaqah: Religious gift — cannot be revoked.
• Ariyat: Loan of usufruct (use), not of ownership.

Doctrine of Mushaa
Mushaa means an undivided share in joint property. Under Hanafi law: if the property is divisible, a gift of
mushaa is irregular (fasid), not void, unless the share is partitioned and possession of the separated share is
delivered. If the property is indivisible (staircase, well, right of way, cinema hall entrance), the gift is valid.

Under Shia law: the doctrine of mushaa is not strictly followed — a gift of an undivided share is generally
valid without partition.

Exceptions even under Hanafi law (mushaa treated as valid): gift to a co-heir; gift of share in zamindari; gift of
share in commercial freehold property; gift of shares in a company.

Revocation of Gift
A gift may be revoked before delivery of possession freely; after delivery, only in limited cases through court.
Gift cannot normally be revoked when: between spouses; by parent to child; donee has died; property
transferred further; gift is sadaqah.

Marz-ul-Maut (Death-Bed Gift)

A gift made during a fatal illness — where the donor is suffering from a serious illness that creates
apprehension of imminent death, is unable to carry on ordinary affairs, and the illness actually results in death
— is a Marz-ul-Maut gift. Such a gift is treated like a will: it is effective only up to one-third of the estate
without heirs' consent and cannot defeat heirs beyond that limit. (Abdul Hafiz Beg v. Sahebbi, AIR 1975
Bom.)

4. WILL (WASIYAT) UNDER MUSLIM LAW

A will (Wasiyat) is a declaration by a Muslim as to how his property shall devolve after his death. It takes
effect only after the testator's death. A Muslim may dispose of his property by will but can bequeath only
one-third of his net estate (after funeral expenses and debts). The remaining two-thirds must pass to legal
heirs under Muslim inheritance rules.

Essentials
• 1. Testator: Must be major (18 years; 21 if a guardian), of sound mind, and must act voluntarily.
• 2. Legatee: Must be identifiable, capable of owning property, and alive at the testator's death (or in
existence, e.g., in mother's womb).
• 3. Subject matter: Must be owned by testator, transferable, and in existence at death.
• 4. Form: A Muslim will may be oral, written, or made by signs. No particular form is compulsory.
• 5. Revocability: A will is revocable at any time before death — expressly or by a later inconsistent will.

Restrictions on Testamentary Power

As to legatees:

• Under Sunni law: A will in favour of an heir is invalid without consent of other heirs (consent must be given
after the testator's death). Under Shia law: A bequest to an heir up to one-third is valid without consent of
other heirs.

As to quantum — Sunni law:

Where bequest exceeds one-third and heirs refuse consent, the excess goes by inheritance. Where multiple
legatees exceed one-third, each legatee's share is proportionately reduced.

Illustration (Slide 134): Testator's estate = Rs. 75,000. Bequeathable limit = Rs. 25,000. Will: Rs. 30,000 to
A and Rs. 20,000 to B (total Rs. 50,000). Both are proportionately reduced: A gets Rs. 15,000; B gets Rs.
10,000 (total = Rs. 25,000).

As to quantum — Shia law:

Rule of chronological priority: Legatees are satisfied in the order their names appear in the will until the
one-third limit is exhausted. Remaining legatees get nothing.

Illustration (Slide 136): Estate = Rs. 1,20,000. Bequeathable limit = Rs. 40,000. Will: Rs. 20,000 to A; Rs.
30,000 to B; Rs. 40,000 to C. A gets Rs. 20,000; B gets Rs. 20,000 (remaining); C gets nothing.

Sajathi Bi v. Fathima Bi: A Muslim man made a will of his property in favour of one of his sisters. He had a
mother, two brothers and two sisters, none of whom gave consent. The will was declared incapable of taking
effect in law (under Sunni law, bequest to an heir without heirs' consent is void).

5. INHERITANCE UNDER MUSLIM LAW — GENERAL PRINCIPLES

Muslim inheritance law is derived from pre-Islamic Arabian customs, supplemented and modified by the
Quran and Hadiths. Pre-Quranic Arabian customary law gave paramount importance to male agnates. With
Quranic revelations, blood tie replaced comradeship in arms — females and cognates were introduced as
heirs ('There is no bond stronger than the blood tie').

Distinctive Features of Muslim Inheritance

• No concept of joint family: Muslims do not recognise a joint family as a separate entity. Sons inheriting
from their father hold property as tenants-in-common, not joint tenants. No right by birth in father's
property.
• Exclusive ownership with full alienation: An essential feature of Muslim property ownership.
• Single scheme of succession: Irrespective of the sex of the intestate.
• Consanguinity (blood) is the primary basis: Relations introduced by marriage (other than surviving
spouse) generally do not succeed.
• Female absolute ownership: A woman acquires an absolute right in property she inherits, with full
powers of alienation.
• SMA exception: Muslim law of inheritance does not apply if the Muslim intestate was married under the
Special Marriage Act, 1954. Indian Succession Act applies.

Disqualifications
• 1. Only a Muslim can inherit from a Muslim.
• 2. Homicide: A person causing the death of another cannot inherit from them. Under Sunni law: both
intentional and accidental killing disqualify. Under Shia law: only intentional killing.
• 3. An acknowledgement by the father cannot make a child legitimate who is otherwise illegitimate.
Legitimacy presumption under Muslim law: A child born after 6 months from the date of marriage is presumed
legitimate unless the father disclaims paternity by 'lian' (accusation of adultery). Periods after dissolution of
marriage: Hanafi = 2 years; Shafei/Maliki = 4 lunar years; Shia = 10 lunar months.

Under Sunni law, an illegitimate child inherits from the mother only. Under Shia law, an illegitimate child
inherits from neither parent nor their relatives.

General Principles
• Rule of exclusion: Muslim law generally does not recognise representation. Nearer degree excludes
remoter — father excludes paternal grandfather; son excludes grandson.
• Doctrine of Radd (Return): Where, after distributing shares to Quranic sharers, a surplus remains and
there are no residuaries, the surplus is returned to the sharers in proportion to their original shares.
Exception: surviving spouse is not entitled to Radd when other heirs are present (Shia law); under Sunni
law, the husband is never entitled to Radd.
• Doctrine of Aul (Increase): Where the total of all fractional shares exceeds unity (1), all shares are
proportionately reduced. Example: H=1/2, M=1/6, S1=1/2 → total = 7/6 → each share divided by 7/6 →
H=3/7, M=1/7, S1=3/7.
• Primary Heirs: Five persons who, if present, cannot be excluded: surviving spouse, son, daughter,
mother, father. Son inherits as a residuary but is so positioned that he always inherits. In absence of
primary heirs, substitutes take — true grandfather (for father), son's child (for child), true grandmother (for
mother).
• Doctrine of Escheat: On failure of all heirs and in absence of a bequest, the property of the deceased
passes to the government.

5A. SUNNI LAW — SHARERS, RESIDUARIES AND DISTANT KINDRED

Sunni heirs are divided into: (A) Related heirs (sharers, residuaries and distant kindred) and (B) Unrelated
heirs (successor by contract, acknowledged kinsmen, universal legatee).

Surviving Spouse (Sharer)

• Husband takes 1/2 in absence of child or child of a son; 1/4 in their presence.
• Widow takes 1/4 in absence of child or child of a son; 1/8 in their presence. Multiple widows share
collectively.

Daughters (Sharer / Residuary)

• In absence of a son: one daughter = 1/2; two or more daughters = 2/3 collectively.
• In presence of a son: she becomes a residuary with him, taking half of his share.

Father (Sharer / Residuary)

• Fixed 1/6 as sharer in presence of a child or child of a son.
• In their absence: inherits as a residuary (potentially the entire estate).
• Father's presence excludes brothers, sisters, and true grandfather.

Mother
• Fixed 1/6 in presence of: (a) a child or child of a son, or (b) two or more brothers/sisters, or one brother
and one sister.
• 1/3 in absence of a child or child of a son and in presence of only one sibling; but 1/3 of the residue after
deducting spouse's share if father and spouse are also present.
True Grandfather and True Grandmother
True grandfather = male ancestor between whom and intestate no female intervenes. Inherits 1/6 in presence
of a child or child of a son; as residuary otherwise. Excluded by a nearer true grandfather.

True grandmother = female ancestor between whom and intestate no false grandfather intervenes. May be
maternal or paternal. Maternal true grandmother takes 1/6 in absence of mother and nearer true
grandmother. Two true grandmothers share 1/6 equally.

Son's Daughter (Sharer / Residuary)

Sharer only in absence of son, daughter, or son's son. One SD = 1/2; two or more SD = 2/3. With son's son:
residuary taking half of his share. If only one daughter of intestate is alive (no son or son's son): son's
daughter takes 1/6 additionally.

Uterine Brothers and Sisters

• Share a common mother, different fathers. One = 1/6; two or more = 1/3 collectively.
• Excluded by: child, child of a son, father, or true grandfather.

Sisters
• Full sister: 1/2 alone; 2/3 if two or more (as sharer, in absence of son, child of a son, father, true
grandfather, full brother). With a full brother: residuary taking half his share.
• Consanguine sister: 1/2 alone; 2/3 if two or more (in absence of full siblings).

Son's Son (Residuary)

Inherits as a residuary in absence of a son. Rule of nearer blood — in presence of a grandson, a
great-grandson cannot inherit. SS and SD of the same branch divide: SS gets double SD's share.

Unrelated Heirs
• 1. Successor by contract: Person who paid the monetary liability of the deceased.
• 2. Acknowledged kinsman: Person of unknown descent in whose favour the deceased made an
acknowledgement of kinship through another person (e.g., acknowledged as brother). Cannot be direct
personal acknowledgement.
• 3. Universal legatee: Person to whom the whole property is bequeathed by will, on failure of all other
heirs.

6. SHIA LAW OF INHERITANCE

Shia heirs are grouped as: (1) Consanguine heirs and (2) Relations by marriage (husband and wife).

Three Classes of Heirs

Class 1:
■ (a) Parents
■ (b) Children and other lineal descendants how low so ever
Class 2:
■ (a) All grandparents how high so ever
■ (b) Brothers and sisters and their descendants how low so ever
Class 3:
 ■ (a) Paternal and maternal uncles and aunts of the deceased and of his parents and grandparents, how high
so ever, and their descendants how low so ever

Surviving Spouse
• Husband: 1/2 as sharer. If he is the only heir, the remaining 1/2 returns to him under Radd.
• Widow: 1/4 if childless; 1/8 in presence of lineal descendants.
• Unique Shia rule: Widow entitled to Radd only when no other heir is present.

Parents
• Father: 1/6 in presence of lineal descendants; residuary in their absence.
• Mother: 1/6 in presence of lineal descendants OR two or more full/consanguine siblings with father; 1/3 in
other cases.

Lineal Descendants
• One daughter only: 1/2; two or more: 2/3.
• With son: daughter is a residuary taking half his share.
• Rule of representation applies — descendants of one child take the share of their parent collectively and
divide per their sex ratio (males double females).

Class 2 — Grandparents, Brothers, Sisters

Grandparents inherit only in absence of Class 1 heirs. Paternal grandparents take the 2/3 share (father's
share); maternal grandparents take the 1/3 (mother's share). Nearer grandparents exclude remoter ones.

Brothers and sisters: Full blood excludes consanguine; uterine brothers and sisters are NOT excluded by full
or consanguine siblings (unlike Sunni law). Full sister: 1/2 alone; 2/3 if two or more. Uterine: 1/6 if one; 1/3 if
two or more, shared equally regardless of sex.

Class 3 — Uncles and Aunts

Property divided: 2/3 to paternal side; 1/3 to maternal side. Within paternal side: uterine paternal uncles/aunts
take 1/6 (one) or 1/3 (multiple) equally; residue to full paternal uncles/aunts in 2:1 ratio; failing them, to
consanguine in 2:1 ratio. Similar process for maternal side (equal division for full and consanguine).

Shia Doctrine of Radd (Return)

Rules:

• 1. Surviving spouse is not entitled to Radd if any other heir is present. Husband/wife can take Radd only
when no other sharer is present.
• 2. Mother cannot claim Radd in presence of father, daughter, and two or more full/consanguine brothers,
or one brother and two sisters, or four sisters — surplus goes to father and daughter in proportion.
• 3. In presence of a full sister, uterine brother or sister cannot take the surplus by Radd.

Shia Law Does Not Recognise Aul (Increase)

If the total of shares exceeds unity, the excess is deducted from the shares of daughters or full/consanguine
sisters.

Escheat
On failure of all Shia heirs, the property escheats to the government.
 PART D — CASE LAWS CATALOGUE
All cases from the lecture, arranged by topic, with full ruling and significance:

A. Raghavamma v. A. Chenchamma
AIR 1965 SC | Supreme Court of India
Topic: Partition — Communication of Intention to Separate
Facts: A Hindu joint family comprised four brothers. Br1 (sole surviving elder coparcener) executed a will in 1945
dividing his undivided property between his grandson SS and granddaughter DD, with Raghavamma (deceased
brother's widow) as manager till their majority. The will was not communicated to other coparceners. SS died
before attaining majority. Raghavamma claimed SS's share. Chenchamma (SS's mother) resisted, arguing Br1
had never become a separate member and hence the will was void.
Ruling: The Supreme Court held that Br1 remained an undivided coparcener at the time of his death. A
declaration of intention to separate must be communicated during the lifetime of the declarant to the persons
affected. Mere embodiment in a will is insufficient. Therefore, the will was void. SS's share passed by
survivorship to Br1 at the time of Br1's death, and on SS's subsequent death as the sole surviving coparcener,
his share went by inheritance to his mother Chenchamma.
Significance: This is the foundational authority establishing the two requirements for effective partition: (1)
declaration of intention; (2) communication of that intention during the declarant's lifetime. A will expressing
separation intent, never communicated before death, does not effect partition.
Lecture reference: Slides 17–19

Puttrangamma v. M.S. Ranganna

AIR 1968 SC | Supreme Court of India
Topic: Partition — Communication, Withdrawal of Notice
Facts: The Karta of a joint family, who had four daughters and no son, issued a registered notice from hospital
declaring his intention to separate. A coparcener's nephew, present in hospital, tried to tear it but was prevented.
The notice was sent to the post office. The family subsequently persuaded the Karta to withdraw the notice; he
wrote to the post office to withdraw it and the request was complied with. He then signed a vakalatnama for a
partition suit and died on the day the suit was instituted.
Ruling: The Supreme Court held that communication was complete the moment the notice was witnessed by a
coparcener (the nephew) in the hospital. The withdrawal of the notice, taking place after communication, was
ineffective. He died as a separate member; his daughters inherited his share.
Significance: Establishes that: (i) formal written notice is not mandatory — oral communication in the presence
of a coparcener suffices; (ii) once communication is complete, unilateral withdrawal of the notice cannot revoke
the partition already effected.
Lecture reference: Slides 26–27
Kedarnath v. Ratan Singh
Court not specified on slide | Cited as authority on revocation
Topic: Partition — Revocation Before and After Communication
Facts: A coparcener filed a suit for partition but withdrew the petition before trial.
Ruling: The court held there was no severance — the withdrawal prevented the partition from taking effect.
However, where summons were served and communication was complete, the partition cannot be subsequently
revoked.
Significance: Clarifies the boundary between revocable and irrevocable stages of a partition demand:
withdrawal before communication is effective; withdrawal after communication is ineffective.
Lecture reference: Slide 25

Sita Ram Bhama v. Ramavatar Bhama

2018 | Court not specified on slide
Topic: Partition — Registration of Family Settlement / Relinquishment
Facts: A father died. His shop and residential house were inherited by his two sons, daughters and widow. A
memorandum of family settlement was executed under which the sisters and widow relinquished their shares in
favour of the two brothers.
Ruling: A family arrangement involving the relinquishment of shares by sisters must be compulsorily registered.
An unregistered document is inadmissible in evidence.
Significance: Confirms that while general family arrangements can be oral, relinquishment of property rights by
female members requires a registered document for evidentiary admissibility.
Lecture reference: Slide 13

Mewa Devi v. Om Prakash Agarwal

AIR 2008 | Court not specified on slide
Topic: Partial Partition — Consequences
Facts: A HJF comprised father, wife and three sons. In 1949, the two elder sons S1 and S2 effected a partition
and went their separate ways. The JF now comprised father, wife and youngest son. One outgoing son
requested to stay in the joint family house. Upon the father's death, the youngest son became the sole surviving
coparcener under survivorship. He filed an eviction suit against the elder brother.
Ruling: The court held that the youngest son was entitled in law to reclaim possession from his separated elder
brother.
Significance: Illustrates the consequence of partial partition as to persons — the separated coparcener loses all
claim to the remaining JFP; the surviving coparcener's exclusive title is enforceable even for eviction.
Lecture reference: Slide 29

Prakash v. Phulwati (Phulavati)

AIR 2016 SC 769 | Supreme Court of India
Topic: Daughters as Coparceners — 2005 Amendment — Retrospectivity
Facts: A daughter (Phulavati) claimed a share in ancestral property. Her father had died before the 2005
amendment.
Ruling: The Supreme Court (2-judge bench) held that for a daughter to claim coparcenary rights under the 2005
amendment, both the daughter and her father (coparcener) must be alive on 9 September 2005. If the father died
before 2005, the daughter cannot claim coparcenary rights under the amendment.
Significance: This restrictive reading of the 2005 amendment was the prevailing view until 2020. It was later
overruled by a larger bench in Vineeta Sharma.
Lecture reference: Slide 89
Vineeta Sharma v. Rakesh Sharma
AIR 2020 SC 3717 | Supreme Court of India (3-Judge Bench)
Topic: Daughters as Coparceners — 2005 Amendment — Settled Position
Facts: There was a conflict between Prakash v. Phulavati (2015) and Danamma v. Amar (2018) on whether a
daughter could claim coparcenary rights if her father died before the 2005 amendment. The three-judge bench
was constituted to settle the correct legal position.
Ruling: The Supreme Court overruled Prakash v. Phulavati. Held: (i) A daughter is a coparcener by birth, in the
same manner as a son; (ii) the father need not be alive on 9 September 2005; (iii) the rights are retrospective in
effect, applying to daughters born before or after 2005; (iv) however, if a valid partition had been completed
before 20 December 2004 (by registered deed or court decree), the claim cannot be reopened.
Significance: The definitive and binding authority on daughters' coparcenary rights under the 2005 amendment.
The right is conferred by birth — it does not depend on the father's survival on the amendment date. Note also
Sec 6(4): partitions before 20 Dec 2004 are protected.
Lecture reference: Slides 49, 90–91

V. Tulasamma v. Sesha Reddy

1977 SC | Supreme Court of India
Topic: Section 14 — Absolute Ownership of Female Hindus
Facts: Property was given to a widow in lieu of maintenance before 1956. The question was whether her interest
was limited (life estate) or absolute after the commencement of HSA 1956.
Ruling: The Supreme Court held that Section 14(1) converted the widow's limited interest into absolute
ownership. Property given in lieu of maintenance, possessed by a female Hindu on the commencement of HSA
1956, becomes her absolute property.
Significance: Foundational authority on the scope of Section 14(1). Distinguishes between Section 14(1)
(general rule — absolute ownership) and 14(2) (exception — instrument limiting her interest). Squarely
establishes that pre-existing possession, not the mode of acquisition, determines whether 14(1) applies.
Lecture reference: Slide 75

Mussa Miya Walad Mahammed Shaffi v. Kadar Bax

AIR 1928 PC 108 | Privy Council
Topic: Hiba — Delivery of Possession — Gift to Minors
Facts: A maternal grandfather (Abdul Rasul) orally gifted all his property to his minor grandsons who lived with
him. He announced the gift orally and through letters but continued to remain in possession and control. No
mutation, deed, or clear transfer of control took place. The father of the minor grandsons was alive.
Ruling: The Privy Council held the gift invalid. Mere declaration of gift is insufficient; possession must be
delivered. The fact that the donees were minors did not bring the case within the exception because: (i) the father
(natural guardian) was alive; (ii) the donor never divested himself of control; (iii) there was no evidence that he
held the property as guardian/trustee for the minors.
Significance: The leading Privy Council authority on the centrality of delivery of possession (Qabza) in Muslim
gifts. Also clarifies when the 'guardian exception' to delivery applies — only where the natural guardian (father) is
not available.
Lecture reference: Slides 119–120
Valia Peedikakkandi Katheessa Umma v. Pathakkalan Narayanath Kunhamu
(1964) 4 SCR 549 : AIR 1964 SC 275 | Supreme Court of India
Topic: Hiba — Gift to Minor — Valid Guardian for Acceptance
Facts: Mammotty, a Muslim husband, executed a registered gift deed of immovable property in favour of his
minor wife Seinaba (approximately 15 years old). The gift was accepted by Seinaba's mother on her behalf. After
both spouses died, the husband's brother challenged the gift.
Ruling: The Supreme Court held the gift void. Under Muslim law, a gift to a minor must be accepted by a legal
guardian of the minor's property. The legal guardians under classical Muslim law are: father, executor of father,
paternal grandfather, executor of paternal grandfather. The mother is NOT the legal guardian of the minor's
property — she is only the guardian of the minor's person.
Significance: Defines who constitutes a 'legal guardian' for purposes of accepting a gift on behalf of a minor
under Muslim law. Critically distinguishes between guardianship of person and guardianship of property.
Lecture reference: Slides 121

Abdul Hafiz Beg v. Sahebbi

AIR 1975 Bom. 165 | Bombay High Court
Topic: Hiba — Marz-ul-Maut (Death-Bed Gift)
Facts: Abdul Kadar was suffering from a serious illness and became unable to attend to his normal affairs.
Approximately 24 hours before his death, he made a gift of property. Heirs challenged the gift as a Marz-ul-Maut
gift subject to the one-third restriction.
Ruling: The Bombay High Court held the gift was a valid Marz-ul-Maut gift. Conditions for Marz-ul-Maut: (i) donor
suffering from a serious illness; (ii) illness creates apprehension of imminent death; (iii) donor unable to carry on
ordinary affairs; (iv) illness actually results in death. Such a gift is effective only up to one-third of the estate
without heirs' consent.
Significance: The leading Indian authority on the doctrine of Marz-ul-Maut and its four-condition test. Clarifies
that a death-bed gift is treated akin to a will, subject to the one-third restriction.
Lecture reference: Slides 122–123

Sweety (Eunuch) v. General Public

Court not specified | Cited as authority on transgender succession
Topic: Application of HSA — Transgender Succession
Facts: A transgender filed a suit for declaration that she was the only successor to the property of the deceased,
relying on customary practices of the community (guru-chela relationship). Reference was made to NALSA v.
Union of India (SC).
Ruling: The court held (relying on NALSA v. UOI) that transgender persons are recognised as a third gender
entitled to legal and constitutional protection. The deceased was to be governed by the customary practices of
the transgender community; the guru, having established her credentials, was entitled to the property.
Significance: Establishes that in the absence of statutory provisions governing transgender succession
(Transgender Persons Act, 2019 is silent), customary community practices apply. The Hindu Succession Act
does not govern succession of transgender persons by default.
Lecture reference: Slide 55
Sajathi Bi v. Fathima Bi
Court not specified on slide | Cited as authority on Muslim testamentary restrictions
Topic: Muslim Will — Bequest to Heir Without Heirs' Consent
Facts: A Muslim man made a will of his property in favour of one of his sisters. He had a mother, two brothers
and two sisters at the time of making the will. None of the other heirs gave their consent to the bequest.
Ruling: The will was declared incapable of taking effect in law.
Significance: Illustrates the Sunni law rule that a bequest in favour of an heir is void without the consent of the
other heirs (to be given after the testator's death). The sister was a legal heir and the bequest to her, without
consent, was invalid.
Lecture reference: Slide 133
 PART E — DOCTRINES GLOSSARY AND EXAM
ANGLES

DOCTRINES GLOSSARY
Survivorship (Doctrine of Survivorship)
Under Mitakshara law, upon the death of a coparcener, his undivided interest in JFP passes not by
inheritance but to the surviving coparceners by accretion. Abolished by HSA 1956 (Section 6) and confirmed
by 2005 amendment.

Severance of Status / De Jure Partition

The fixing of definite shares in coparcenary property by a unilateral declaration of intention to separate,
communicated to the Karta. Effected without any physical division of property. Source: Judicial elaboration of
Mitakshara coparcenary principles.

Partition by Metes and Bounds / De Facto Partition

The actual physical demarcation and exclusive allotment of specific portions of JFP to each coparcener.
Follows severance of status. Source: Classical Hindu law.

Notional Partition
A legal fiction under Section 6 HSA 1956 (as amended 2005) — an imaginary partition is assumed to have
taken place immediately before the death of a coparcener to determine his share for purposes of succession.

Parens Patriae
The doctrine by which the court acts as the guardian of minors and other persons who cannot look after
themselves. In partition law, it enables courts to assess whether a partition would benefit a minor coparcener
before directing or permitting it.

Doctrine of Relation Back

The principle that where the court orders partition at the instance of a minor, the severance of status relates
back to the date of filing of the partition suit — the minor is deemed a separate member from that date.
Source: Judicial practice in equity.

Pious Obligation
The personal obligation of a son under classical Hindu law to discharge his father's debts — including
antecedent debts (vyavaharika) — even from his share in JFP. Abolished by the 2005 amendment to HSA for
post-amendment debts.

Owelty
A monetary payment by one party to another to equalise shares in a partition where precise division in kind of
a particular item of property is impracticable. Derived from English common law and applied under Hindu
partition law.

Hiba
Under Muslim law, a gift — an immediate, unconditional transfer of ownership of property without
consideration, requiring: declaration (Ijab), acceptance (Qabul), and delivery of possession (Qabza).

Mushaa
An undivided share in joint property. Under Hanafi law, a gift of mushaa in divisible property is irregular
unless the share is separated and possession delivered; in indivisible property it is valid.

Hiba-bil-Iwaz
A gift for consideration under Muslim law — in substance a sale. No delivery of possession required; gift of
mushaa is valid; registration required for immovable property.

Marz-ul-Maut
Death-bed illness under Muslim law. A gift or will made during Marz-ul-Maut is subject to the one-third
restriction applicable to testamentary dispositions.

Wasiyat
A Muslim will — a declaration by a Muslim as to how his property shall devolve after death. Restricted to
one-third of the estate; bequest to an heir requires other heirs' consent (Sunni law).

Doctrine of Aul (Increase — Sunni)

Where the total of all fractional Quranic shares exceeds unity, each share is proportionately reduced so that
the total equals exactly one.

Doctrine of Radd (Return)

Where, after distributing shares among Quranic heirs, a surplus remains and there are no residuaries, the
surplus is returned to the sharers in proportion to their original shares.

Doctrine of Nearer Blood Excluding Remoter Blood

A general principle under both Hindu and Muslim inheritance law that a nearer relation excludes a more
remote relation of the same category from inheriting.

Per Stirpes (by stock)

Shares calculated according to the branch/stock — each branch collectively takes the deceased ancestor's
share. Used in Hindu partition between branches.

Per Capita
Each living heir takes an equal individual share, irrespective of the branch through which they are related.
Used in Hindu partition among siblings and in Muslim succession among sharers of the same category.

Doctrine of Representation
A legal fiction under which the children of a predeceased heir 'step into the shoes' of their parent and take the
share the parent would have taken. Under Shia law, used for lineal descendants; recognised under HSA
1956 for Class I heirs.

Escheat
On failure of all lawful heirs, the property of the deceased passes to the Government of India. Source:
Sections 29/32 HSA 1956 (Hindu); implied under both Sunni and Shia law.
EXAM ANGLES
Q1. "Partition is complete when community of interest is severed. Physical separation of property is not
necessary." Discuss with reference to de jure and de facto partition. [Tests Slides 2–4 + doctrine of severance of
status]

Q2. "A unilateral declaration can bring about a partition but a unilateral withdrawal cannot revoke it." Critically
analyse. [Tests Puttrangamma, Kedarnath, communication doctrine]

Q3. Examine the rights and limitations of a minor coparcener in demanding partition. How does the doctrine of
relation back apply? [Tests Slides 22–24, parens patriae]

Q4. Who is entitled to receive a share at the time of partition? Discuss the special position of females who are
entitled to a share but cannot demand partition. [Tests Slides 32–35]

Q5. The 2005 amendment to the Hindu Succession Act conferred coparcenary rights on daughters. Examine
the judicial interpretation of the retrospective effect of this amendment. [Tests Prakash v. Phulavati vs Vineeta
Sharma]

Q6. Explain the rules for distribution of property among Class I heirs under Section 8 of the HSA 1956 with the
help of illustrations.

Q7. Distinguish between the succession to property of a male intestate and a female intestate under the Hindu
Succession Act, 1956. [Tests Sections 8–10 vs 15–16]

Q8. "Section 14 of the Hindu Succession Act, 1956 is a socially progressive provision that elevated the status of
Hindu women to that of full owners." Comment with reference to V. Tulasamma v. Sesha Reddy.

Q9. What are the essentials of a valid Hiba under Muslim law? How does the requirement of delivery of
possession differ from the position under the Transfer of Property Act, 1882?

Q10. Explain the doctrine of Mushaa. Does it apply equally under Hanafi and Shia schools?

Q11. "A Muslim's power of testamentary disposition is substantially curtailed to protect the Quranic shares of
heirs." Discuss with illustrations from both Sunni and Shia law. [Tests Slides 130–137]

Q12. Explain the Doctrine of Aul and the Doctrine of Radd under Muslim law. Do they apply equally under Sunni
and Shia law? [Tests Slides 144–145, 171–172]

Q13. Compare and contrast Sunni and Shia law of inheritance with special reference to (i) recognition of distant
kindred, (ii) doctrine of representation, (iii) position of surviving spouse.
Q14. What is notional partition? How is the share of a deceased coparcener calculated under Section 6(3) of the
Hindu Succession Act (post-2005) using the notional partition method?

Q15. "The abolition of Section 23 by the 2005 Amendment signified more than a mere procedural change — it
recognised the daughter's equal stake in the family home." Comment.

End of Notes — Partition & Inheritance (Hindu and Muslim Law)

These notes cover all 172 slides of the source PPT, enriched with doctrinal context.