1.

Explain the concept of mitakshara joint family

Mitakshara School of Law

succession of property in a Hindu family. Joint
It is one of the Hindu law schools that govern the

Hindu Family is an important concept under Mitakshara school under which the
son, grandson and grandson’s son have a right by birth in the family property.
It is further divided into 4 schools:

 The Benaras school;

 The Mithila school;
 The Maharashtra school;
 The Dravida school.

Joint Hindu Family

Joint Hindu Family is an inevitable and fundamental concept of the Hindu family
law which in present-day is governed by the Hindu Succession Act, 1956. It is a
normal condition of Hindu society. For a Hindu, it is a never-ending process, if in
one generation it is brought to an end by the means of a partition, it comes
back into existence in the next generation automatically. This rule gives support
to the presumption that every Hindu family is a Joint Hindu family. 

It is presumed that the family continues to be a joint family if it is joint in affairs

of food, worship, and estate as observed in Rukhmabai v. Lala
LaxmiNarayan;  Rajagopal v Padmini. However, if a family is not joint in food
and worship, i.e. even if they live separately, they constitute a Joint Hindu
family provided they are joint in the estate. A Joint Hindu Family is neither a
corporation nor a juristic person as they do not have a separate legal entity
from that of its members as held in the case of Chhotey Lal and Ors. v. Jhandey
Lal and Anr. It is a unit and is represented by the Karta of the family in all
matters.

2. State the features of Dayabhaga coparcenary.

Dayabhaga School of Law, which is based on the code of Yajnavalkya

commented by Jimutvahana, governs the succession rules of Hindu Joint
Families in only Assam and Bengal. Dayabhaga School of law recognizes
devolution only by succession. The Coparcenary is established when the
father is survived by more than one son. Sons inherit the property of father
equally and with agreement form a Coparcenary. Unlike Mitakshara
Coparcenary it is a creation by way of agreement and not by law. Son has
no right by birth in the property of a father irrespective of the fact whether
it is separate or ancestral. Coparceners inherit a definite share in the
property of the father. At the time of death of coparcener his shares in the
property along with the separate property are inherited to his heirs and on
their willingness a Coparcenary is formed. The entire concept is based on
inheritance and no difference between separate and Coparcenary property
identified. Sons under Dayabhaga Family have only a right of maintenance
father may dispose of the property at his will.

Under Dayabhaga School of Law the shares in Coparcenary property are

definite and do not fluctuate with death and birth of members in family. On
the death of a coparcener the property is devolved to heirs by way of
inheritance.

Dayabhaga Property:

Dayabhaga Joint Family is a result of desire of family members to live

together. The family is joint in food, worship and estate. Since the
possession of the property is united but on definite share there is less
chance of injurious act committed against one's property. Dayabhaga
School of Law does not differentiate between joint family property or
ancestral property and separate property since the concept of property is
based on inheritance only. Dayabhaga Family is presumed to be joint family
but the property possessed by each coparcener is not presumed to be a
joint family property. In short Dayabhaga School of Law makes no
difference between ancestral property and separate property.
 3. Explain obstructed and unobstructed heritage.

Obstructed property
The property to which right accrues not by birth but on the passing of the final
owner is called obstructed property. It is called obstructed since the accrual of
the right to it is obstructed by the existence of the final owner. Hence the
property devolving on parents, brothers, nephews, uncles, etc. upon the
passing of the last owner, is obstructed property. These relatives are not vested
intrigued by birth. Their right to it arises only on the passing of the last owner. 

In this way, any property acquired by a male Hindu from relations other than
father, father’s father and father’s father’s father would be called obstructed
heritage. The owner of this property holds the property as Separate and
absolute one and there is no chance of combining property.

Obstructed property rights gained by the owner after the succession of the final
owner but there are some exceptional cases where the ownership passes by
survivorship. The exception cases were mentioned below:

 Two or more than two sons, grandsons, and great-grandsons

succeeding as heirs to the separate property of their paternal ancestor
take as joint tenants with survivorship. 
 Two or more grandsons of a daughter who is a member of a joint
family succeed as heirs to their maternal grandfather as joint tenants
with the right of survivorship. 
 Two or more widows succeeding as heirs of their husband take as joint
tenants with survivorship rights. 
Two or more daughters succeeding as heirs of their father take as joint
tenants. 
These are the only 4 conditions or exceptional circumstances in which
ownership of the obstructed property transfers to another before the succession
of the previous owner. 

Illustration
An acquired the certain property from his brother who passed on issueless. The
acquired property within the hands of A will be a discouraging legacy for the
children of A. The children of A will acquire the property from A as it were after
his passing.

Unobstructed property
The property in which an individual secures and is intrigued by birth is called
unobstructed property. It is called unobstructed since the accrual of the right to
it isn’t obstructed by the presence of the owner. Hence property inherited by a
Hindu from his father, grandfather, and great grandfather is unobstructed
heritage as regards his claim male issues, that is, his sons, son’s and son’s
child. These rights arise on account of their birth in the family and the male
descendants in whom the property vests, are called coparceners. Thus, the
hereditary property in the hands of the final male owner is unobstructed.

Illustration

‘A’ acquired certain property from his father. Two children born to A, M and N
are coparceners with A. M and N will procure an interest by birth within the
hereditary property of A. Thus the property within the hands of A is unhindered
legacy, as the presence of the father is no obstacle or obstacle to his children
procuring an intrigued by birth within the property.

It is seen that the distinction between obstructed and unobstructed property is

recognized by the Mitakshara School and according to Dayabhaga School all the
properties should be considered as Obstructed property because no one can
inherit the property just after the birth or no one can have interest in another’s
property by birth. This difference of thought of both the school demarcates
Obstructed and Unobstructed Property. 

4. "Karta is sui generis" Explain

Who is Karta?

In Hindu joint family, the senior-most male ascendant is the head of the family
and known as Karta. Karta is the manager of the family. He takes care of the
family and its property. The relationship of Karta with the other members of the
family is not that of a partner, agent or principal. He stands in a fiduciary
relationship with the members of the family. The Karta of the family has
unlimited liability, also he is not responsible to any member of the family except
in case of fraud or misappropriation.

Characteristics of Karta
The characteristics of a Karta are:

 Karta’s position is unique (sui generis). His position is independent and

no one can be compared with him among the family members.
 He had unlimited power but even if he acts on behalf of other
members, he can’t be treated as a partner or agent.
 He controls all the affairs of the family and has wide powers.
 He is responsible to no one. The only exception to this rule is, in case
of fraud, misappropriation or conversion, he is held responsible.
 He is not bound to invest, save or economise. He has the power to use
the resources as he likes, unless he is not responsible for the above
mentioned charges.
 He is not bound to divide the income generated from the joint property
equally among the family members. He can discriminate one with
another and is not bound to be impartial. The only thing is he should
pay everyone so that they can avail some basic necessities like food,
clothing, education, shelter etc.

Powers of a Karta
The powers of Karta are:

Powers of Management
Karta’s power of management is absolute. No one can question the duties of the
Karta like, he can manage or mismanage the property, family, business any
way he likes. Karta cannot deny the maintenance and occupation of property to
any member. Karta is not liable for the positive failures.

Rights to Income or Remuneration and Expenditure

The income of the Joint Hindu family property in a whole must be given to the
Karta. Then it is the responsibility of the Karta to allot the funds to the
members for fulfilment of their needs. Karta controls the expenditure of the
funds. The scope of his power is only to spend such funds on family purposes
like management, maintenance, marriage, education etc.

Rights to Represent Joint Family

The Karta represents the family in legal, religious and social matters. The acts
and decisions of the Karta are binding on the members. Karta can enter into
any transaction on behalf of the family.

Right to Compromise
Karta has the power to compromise the disputes relating to management or
family property. He can compromise family debts, pending suits and other
transactions. The compromises made by the Karta, can be challenged in court
by heirs only on the ground of malafide.

Power to refer a Dispute to Arbitration

Karta can refer the disputes relating to management, family property to the
arbitration. If the award by the arbitration is valid then it will be binding on the
members of the joint family.

Power to Contract Debts

The Karta exercises an implied authority to contract debts and pledge the
credits and property of the family. Such acts are bound to be followed by the
members of the family. Even, Karta when taking a loan for the family purpose
or for family businesses then joint family is liable to pay such a loan.

Power to enter into Contracts

The Karta can enter into contracts and where contracts are enforceable against
the family. The contracts are binding on the members of the joint family.

Power of Alienation
No one among the family members can alienate joint family property. But Karta
has the power to alienate the property under three circumstances.
 1. Legal Necessity
2. Benefit of estate
3. Indispensable duties

Legal Necessity
This term has not expressly defined in any judgement or in any law. It includes
all the things which are deemed necessary for the members of the family.

Dev Kishan Vs. Ram Kishan AIR 2002

In this case, the plaintiff filed a suit against the defendant. Both plaintiff and
defendant are members of the Joint Hindu Family. Defendant 2 is the Karta,
who is under the influence of Defendant 1, sold and mortgaged the property for
an illegal and immoral purpose which is for the marriage of minor daughters
Vimla and Pushpa. The defendant contended that he took the loan for the legal
necessity.

The court held that the debt was used for the unlawful purpose. Since it
contravened the Child Marriage Restraint Act, 1929, therefore, it can be called
as lawful alienation.

Benefit of estate
Benefit of Estate means anything which is done for the benefit of the joint
family property. Karta as a manager can do all those things which are helpful
for family advancement.

Indispensable Duties
These terms refer to the performance of those acts which are religious, pious or
charitable. Examples of indispensable duties are marriage, grihapravesham etc.
A Karta can alienate the portion of the property for the charitable purpose. In
this case, the power of the Karta is limited i.e he can alienate only a small
portion of the family property, whether movable or immovable.
Loan on Promissory Note
When Karta takes any loan for any family purpose or executes a promissory
note, then all the members and the members who are not the party to the note
will be sued if the loan is not paid. But, Karta is personally liable on the note.

Liabilities of a Karta
 Liability to maintain- Karta is to maintain all the members of the
Joint Family. If he does not maintain any member then he can be sued
for maintenance and also can be asked for compensation.
 Liability of render accounts- As far as the family remains joint,
Karta is not supposed to keep accounts of the family, but when
partition takes place at that time he will be liable to account for family
property. If any of the heir is not satisfied with his accounts, then he
can constitute a suit against Karta to bring the truth and to know any
misappropriation is done by Karta or not.
 Liability of recovery debts due to the Family- He has the liability
to realize the debts due to the family.
 Liability to spend reasonably- He has the liability to spend the joint
family funds only for the family purposes.
 Liability not to eliminate coparcenary property- It is the liability
of the Karta not to alienate the coparcenary property without any legal
necessity or benefit to the state.
 Liability not to start new Business- It is the liability of the Karta
not to start a new business without the consent of other coparceners.

Responsibilities of Karta 
The duty of a Karta is to provide clothing, food, shelter etc, to the members of
the joint family. There are several responsibilities of Karta which include:

Maintenance
Every member of the family including Karta has the right to maintenance. The
Responsibility of Karta is to maintain all the members of the family. If he does
not maintain any member properly, then he can be sued for both maintenance
and dues of maintenance. 
Marriage
The Karta is responsible for the unmarried members especially the daughters.
The expenses for the marriage will be taken out of the Joint Family property.

Representation
Karta acts as a representative on behalf of the family. This is because he must
perform some responsibilities and liabilities on account of the family. He must
pay all the dues and the taxes. He can be sued on behalf of the family during
any agreement or dealings.

Accounts at the time of Partition

Status of a joint family comes to an end due to the partition. Under Mitakshara
Law, it means:

Severance of status and interest

It’s an individual decision, where a member wants to divide himself from the
joint family and enjoy undefined and unspecified share separately.

Actual division of Property

It is the consequence of the declaration of the desire to cut off. However, it is a
bilateral action.

Opening of assets means the inquiry of the assets of joint family. This includes
all the items of family property. Karta under Mitakshara Law is required to
disclose the accounts only if there are any charges of fraud, misappropriation or
conversion of assets or property of the joint family against him. If there is no
proof of misappropriation, fraud or conversion against the Karta, the
coparceners who follow the partition process cannot demand the disclosure of
the past dealings of Karta with joint family property or assets. After the
severance of status, the Karta must give the accounts of the expenditure and
income in a manner similar to which a Trustee or agent has to render accounts.
This implies that Karta has to report all the profits.
5. What do you mean by gains of learning ?

THE HINDU GAINS OF LEARNING ACT, 1930 A

CT NO. 30 OF 19301 [25th July, 1930.]

An Act to remove doubt as to the rights of a member of a Hindu undivided family in property
acquired by him by means of his learning. WHEREAS it is expedient to remove doubt, and to
provide an uniform rule, as to the rights of a member of a Hindu undivided family in property
acquired by him by means of his learning; It is hereby enacted as follows:—

1. Short title and extent.—(1) This Act may be called the Hindu Gains of Learning Act, 1930. (2)
It extends to the whole of India 2 [except the State of Jammu and Kashmir].

2. Definitions.—In this Act, unless there is anything repugnant in the subject or context,—

(a) “acquirer” means a member of a Hindu undivided family, who acquires gains of learning;
(b) “gains of learning” means all acquisitions of property made substantially by means of
learning, whether such acquisitions be made before or after the commencement of this Act and
whether such acquisitions be the ordinary or the extraordinary result of such learning; and (
c) “learning” means education, whether elementary, technical, scientific, special or general, and
training of every kind which is usually intended to enable a person to pursue any trade, industry,
profession of avocation in life.

3. Gains of learning not to be held, not to be separate property of acquirer merely for certain
reasons.—Notwithstanding any custom, rule or interpretation of the Hindu Law, no gains of
learning shall be held not to be the exclusive and separate property of the acquirer merely by
reason of—
(a) his learning having been; in whole or in part, imparted to him by any member, living or
deceased, of his family, or with the aid of the joint fun ds of his family, or with the aid of the
funds of any member thereof, or
(b) himself or his family having, while he was acquiring his learning, been maintained or
supported, wholly or in part, by the joint funds of his family, or by the funds of any member
thereof.
4. Savings.—This Act shall not be deemed in any way to affect—
(a) the terms or incidents of any transfer of property made or effected before the
commencement of this Act,
(b) the validity, invalidity, effect or consequences of anything already suffered or done before
the commencement of this Act,
(c) any right or liability created under a partition, or an agreement for a partition, of joint family
property made before the commencement of this Act, or
(d) any remedy or proceeding in respect of such right or liability; or to render invalid or in any
way affect anything done before the commencement of this Act in any proceeding pending in a
 Court at such commencement; and any such remedy and any such proceeding as is herein
referred to may be enforced, instituted or continued, as the case may be, as if this Act had not
been passed.

6. Explain the karta's power of alienation of joint family property.

Alienation of Joint Hindu Property by Karta:

Karta can alienate property in three circumstances:

Legal Necessity
Benefit of Estate
Performance of religious & indispensable duties

Legal Necessity means a necessity which can be justified in law or sustained in law. The
Prerequisite conditions to validate any alienation under Legal Necessity are that the purpose
shall be lawful and the family does not have any alternative resource from which the necessity
can be fulfilled. Examples for this kind of necessity is to provide food, cloth, shelter to family
member, for marriage expenses, medical expenses, payment of rent etc.

Benefit of Estate includes those kinds of necessities which are required to benefit the joint
family estate. The transactions which are made to bring advantage to the property will be
considered valid. For example – sale of a small portion of property to improve condition of a
property which's valued more; or to fight hostile litigations against a property which's valued
more than the property sold etc.

Performance of religious & indispensable duties has also been given importance, and alienation
made for this purpose by Karta is also valid. In case when family has a requirement to perform a
religious ceremony, a property can be alienated to generate income to fulfill it. In case when a
family has contracted past debts for this purpose that can also be paid by alienating family's
property. Apart from aforementioned circumstances Karta can alienate the Joint Hindu Family
Property for any other purpose with the consent of major coparceners.

7. . Explain Christian intestate succession.

Basic Principles Of The Christian Law Of Succession

The Concept Of Succession
Before venturing into a discussion on the Christian Law of Succession, we would do well
to first make a preliminary study of what exactly succession is. Succession, in brief, deals
with how the property of a deceased person devolves on his heirs. This property may be
ancestral or self-acquired, and may devolve in two ways:

1. By Testamentary Succession, i.e. when the deceased has left a will bequeathing his
property to specific heirs
2. By Intestate Succession, i.e. when the deceased has not left a will, whereby the law
governing the deceased (according to his religion) steps in, and determines how his
estate will devolve.

The Indian Succession Act, 1925

The religion of the deceased determines the succession to his estate. For example,
succession among Hindus is governed by the Hindu Succession Act, 1956. As such,
Christians in general are governed by the Indian Succession Act of 1925 for succession
purposes.

S. 2(d) of the Act defines an “Indian Christian” hereby: “Indian Christian” means a native
of India who is, or in good faith claims to be, of unmixed Asiatic descent and who
professes any form of the Christian religion.

This was further clarified in the case of Abraham v. Abraham where the scope of this
definition of an ‘Indian Christian’ was delineated with regard to its actual working. This
case laid down that a Hindu who has converted to Christianity shall not be governed by
Hindu law (customary or otherwise) anymore, and any continuing obligatory force that
the Hindu law may have exercised upon him stands renounced. However, he was clearly
given the option to permit the old law to continue to have an effect on him, despite
having converted out of the old religion into the new one.

In 1865, the original Indian Succession Act was passed and a new question arose as to
whether, even under the provisions of this new Act, the convert could elect to be
governed by the old law. In the case of Kamawati v. Digbijoy thereafter it was held by
the Privy Council that the old law ceases to be applicable with regard to inheritance i.e.
succession. Thereafter in a recent 2001 judgement, the Allahabad High Court reiterated
that Hindu converts to Christianity will be bound solely by the succession laws
governing Christians, inclusive of the Indian Succession Act, 1925, and it will not be
possible for them to elect to be governed by the old law in this or related matters.

Will, however, the incidents of the joint family (in the case of those converting out of the
Hindu religion) continue to apply? The Courts in this regard have not been able to reach
a uniform conclusion. In the case of Francis v. Gabri the Bombay High Court held that if
a family were to convert out of Hinduism into Christianity, the coparcenary rights of that
family would remain untouched. But the Madras High Court held in the case of Francis v.
Tellis that the effect of conversion out of Hinduism would be to render all coparcenary
rights thenceforth individual rights. In this case, out of two brothers, one of them
converted to Christianity. It was held that upon his death it would not be possible for
the other brother to succeed to the entire estate by way of the doctrine of survivorship.

Intestate Succession Among Indian Christians

S. 30 of the Indian Succession Act, 1925 defines intestate succession thus: A person is
deemed to die intestate in respect of all property of which he has not made a
testamentary disposition which is capable of taking effect. Thus any property which has
not already been bequeathed or allocated as per legal process, will, upon the death of
the owner, insofar as he is an Indian Christian, devolve as per the rules contained in
Chapter II of the Act. It would be worthwhile to note at this point that intestacy is either
total or partial. There is a total intestacy where the deceased does not effectively
dispose of any beneficial interest in any of his property by will. There is a partial
intestacy where the deceased effectively disposes of some, but not all, of the beneficial
interest in his property by will.

Domicile
The Domicile of the deceased plays an integral role in determining the method of
devolution of his property. Halsbury defined ‘domicile’ thus: “A person’s domicile is that
country in which he either has or is deemed by law to have his permanent home.” S.5 of
the Act categorically states that succession to the movable property of the deceased will
be governed by the lex loci as per where he had his domicile at the time of his death;
whereas succession to his immovable property will be governed by the law of India (lex
loci rei sital), no matter where he was domiciled at the time of his death. Also, S. 6
further qualifies this provision by stating that a person can have only one domicile for
the purpose of succession to his movable property. It must be noted that domicile and
nationality differ from each other – domicile deals with immediate residence, whereas
nationality implies the original allegiance borne by the person. S. 15 lays down that
upon and during subsistence of marriage, the wife acquires the domicile of her husband
automatically.

Kindred Or Consanguinity
S. 24 of the Act makes an initial reference to the concept of kindred and consanguinity,
defining it as “the connection or relation of persons descended from the same stock or
common ancestor.” S. 25 qualifies ‘lineal consanguinity’ with regard to descent in a
direct line. Under this head fall those relations who are descendants from one another
or both from the same common ancestor. Now, succession can be either ‘per capita’
(one share to each heir, when they are all of the same degree of relationship) or ‘per
stirpes’ (division according to branches when degrees of relationship are discrete). For
Christians, if one were to claim through a relative who was of the same degree as the
nearest kindred to the deceased, one would be deemed to stand in the shoes of such
relative and claim ‘per stirpes.’

S. 26 qualifies ‘collateral consanguinity’ as occurring when persons are descended from

the same stock or common ancestor, but not in a direct line (for example, two brothers).
It is interesting to note that the law for Christians does not make any distinction
between relations through the father or the mother. If the relations from the paternal
and maternal sides are equally related to the intestate, they are all entitled to succeed
and will take equal share among themselves. Also, no distinction is made between full-
blood/half-blood/uterine relations; and a posthumous child is treated as a child who
was present when the intestate died, so long as the child has been born alive and was in
the womb when the intestate died.

Christian law does not recognise children born out of wedlock; it only deals with
legitimate marriages. Furthermore it does not recognise polygamous marriages either.
However, a decision has been made to the effect that it does recognise adoption and an
adopted child is deemed to have all the rights of a child natural-born, although the law
does not expressly say so.

The law of intestate succession under S. 32 states that: The property of an intestate
devolves upon the wife or husband or upon those who are of the kindred of the
deceased, in the order and according to the rules hereinafter contained in this Chapter.
However, as aforementioned, the Act recognises three types of heirs for Christians: the
spouse, the lineal descendants, and the kindred. These shall be dealt with now.

Rights Of The Widow And Widower

S. 33, S. 33-A, S. 34 of the Act govern succession to the widow. Together they lay down
that if the deceased has left behind both a widow and lineal descendants, she will get
one-third share in his estate while the remaining two-thirds will go to the latter. If no
lineal descendants have been left but other kindred are alive, one-half of the estate
passes to the widow and the rest to the kindred. And if no kindred are left either, the
whole of the estate shall belong to his widow. Where, however, the intestate has left a
widow but no lineal descendants, and the net value of his property does not exceed five
thousand rupees, the whole of the property will go to the widow – but this provision
does not apply to Indian Christians.
S. 35 lays down the rights of the widower of the deceased. It says quite simply that he
shall have the same rights in respect of her property as she would in the event that he
predeceased her (intestate).

Rights Of Children And Other Lineal Descendants

If the widow is still alive, the lineal descendants will take two-thirds of the estate; if not,
they will take it in whole. Per capita (equal division of shares) applies if they stand in the
same degree of relationship to the deceased. This is as per Sections 36-40 of the Act.
Importantly, case law has determined that the heirs to a Christian shall take his property
as tenants-in-common and not as joint tenants.

Also, the religion of the heirs will not act as estoppel with regard to succession. Even the
Hindu father of a son who had converted to Christianity was held entitled to inherit from
him after his death.

As per S. 48, where the intestate has left neither lineal descendant, nor parent, nor
sibling, his property shall be divided equally among those of his relatives who are in the
nearest degree of kin to him. If there are no heirs whatsoever to the intestate, the
doctrine of escheat can be invoked by the Government, whereupon the estate of the
deceased will revert to the State.

Testamentary Succession Among Indian Christians

A will is the expression by a person of wishes which he intends to take effect only at his
death. In order to make a valid will, a testator must have a testamentary intention i.e. he
must intend the wishes to which he gives deliberate expression to take effect only at his
death.

Testamentary Succession is dealt with under Part VI of the Indian Succession Act, 1925.
According to S. 59, every person of sound mind, not being a minor, may dispose of his
property by will. The explanations to this Section further expand the ambit of
testamentary disposition of estate by categorically stating that married women as also
deaf/dumb/blind persons who are not thereby incapacitated to make a will are all
entitled to disposing their property by will. Soundness of mind and freedom from
intoxication or any illness that render a person incapable of knowing what he is doing
are also laid down as prerequisites to the process.

Part VI of the Act encompasses 134 Sections from S. 57 to S. 191, that comprehensively
deal with all issues connected with wills and codicils, and the making and enforcing of
the same, including capacity to make a will, formalities needed for wills, bequests which
can be validly made etc.
 8. What is meant by settlement of spousal property ? Suggest relorms.
Marital property is basically all the assets and liabilities acquired during
the course of the marriage.  Assets might include hSome, cars, furniture,
shares in a company, rental income and savings. Liabilities can include
any debt, such as mortgages or other loans and leases.

The concept of what is a spousal property (also known as marital

property) and what is a separate property is a matter of confusion, but
what is understood so far is that spousal property includes all the
movable or immovable property bought by the husband or wife through
their mixed earnings after marriage or a separate property which is used
extensively by both the parties equally or a gift which they got together
during their marriage. Now, separate property includes property bought
before marriage or property inherited individually or a gift received before
marriage or property bought exclusively from one’s own hard earned
money and then it is used by that person itself.

Now the confusion only arises when there is a divorce and then the
question of distribution of spousal property arises. As far as the marriage
is going strong, the spouses do not care as to in who’s name the property
is bought and who is paying the money. They plan their future as a
lifelong affair and are repugnant to the idea of divorce[1]. Earlier the
concentration was more on current needs such as food, clothing etc, but
now with the concept of instalment purchases and mortgages, married
couples are concentrating more on immovable property such as house
etc. So, the spouses either contribute financially equally or with their
skills and hard work.

Meaning of Marriage Settlement

According to the Merriam Webster, the legal definition of a marriage settlement

is basically a written contract between the husband and the wife upon their
divorce talking about things like custody, maintenance and property division.

 What does the settlement of spousal property mean?

As discussed above, when a property is bought by the couple during their
marriage never do they think about division of their property upon divorce
because no one ever thinks about that. They always use all their properties
together and so frequently that, it is difficult to conclude as to who needs it
more. It is only during the divorce proceedings that the calculation of the
amount of property division is done.

Now divorce is a very difficult situation for the women when compared to the
men because not all women will be qualified enough to work and earn a
handsome salary. Sometimes the divorced lady is at a much tougher position
than a widow when compared financially. When a man dies then the widow
becomes his heir and thus can get his property through succession[2]. But in a
divorce this is no such thing, the lady is not the heir and thus the question of
maintenance and support comes into the picture.

For maintenance, there are many provisions in the Indian Law which talk about
both interim maintenance and alimony[3].

Calculating maintenance is not that difficult when compared to calculating the

amount of share in the divided property because of the fact that there are
generally two types of women when we look at them for the contribution
towards the buying of that property. One of them is the working class who,
earns enough money so that she can pool in her money with that of her
husband’s to buy any property and the other one is the stay at home, who does
not earn but takes care of the family, children and the whole house and also
supports her husband in almost every way even if not financially. It is said that
her physical contribution is no less than her husband’s financial contribution[4].
It is very difficult to calculate the share in the property as to how much will the
stay at home women will get upon divorce. Thus in the case of White v White
[2001] 1 A.C. 596 the English court has said that the domestic and the financial
contribution of both the spouses have to been seen and evaluated equally. In
this above-mentioned case the court also clarifies the meaning of Section 25 (2)
(f) of the Matrimonial Causes Act, 1973, so it says that this S

ection does not talk about the contribution of the parties in terms of wealth but
rather talks about the contribution made by the parties towards the welfare of
the family[5].

So the broad issue which the author would like to answer is – How to find a
compromise between the husband and the wife so that both of them are treated
equally? and  How to recognise the contribution of the working as well as the
non- working woman equally in this type of non- contractual relationship such
as buying of property in a marriage?

Indian courts rarely talk about the quantification of a housewife’s contribution in

the family. However there are some tiny efforts put in by the Apex court and
thus in the case of Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and Ors
(2009) (10) SCALE 675 says- “For compensating a husband for loss of a wife,
therefore courts consider the loss of income to the family. It may not be difficult
when she had been earning. Even otherwise a wife’s contribution to the family
in terms of money can always be worked out. Every housewife makes a
contribution to her family. It is capable of measuring in monetary
terms  although the emotional aspect of it cannot be[6].”   

In all those countries where ever there are laws relating to the settlement of
matrimonial property upon divorce all of them follow the rule of equal division.
So, the basic idea is that each spouse should exit the marriage on the same
economic or financial level[7]. Michael Davie in “Matrimonial Property in
England and American Conflict of Laws”  says that each spouse will retain all
those properties with themselves with which they had entered into the marriage
which means this is their separate property. So, all those properties which they
buy or acquire after their marriage then that is a part of their matrimonial
property.

Amendment to the Marriage Laws in India in 2013

Finally, in the year 2013, there was a bill that was passed by the Rajya sabha
saying that now the women would get 50% share in the property of the
husband upon divorce. This is the “THE MARRIAGE LAWS (AMENDMENT) BILL,
2013”.

A major change is that this rule is applicable to all the properties of the husband
acquired before and after the marriage, whereas as in the earlier law the wife
gets share only in those properties which are acquired by husband only after
marriage. So, if it is a joint property then first she will get her 50% share then
later the half of 50% share of the husband too. Thus, giving her a 75% share in
the property and the husband just a 25%.

What the author thinks is that this is an anti-male law, because now the
husband will be in a lower position. Even though the Parliament has the right to
make special laws for women under Article 15 but still both the sexes should be
in an equal footing rather than doing this kind of injustice. Both the parties
while going through a divorce suffer emotionally as well as financially. Which
means that it is not always the wife who suffers but the husband can also suffer
equally, thus if we have such a law then the husband will suffer more than the
wife. We should try to have all the laws in our country which are gender neutral
and equal. Because of the fact that after marriage when  a couple buys property
then both are the equal partners of the property in a fair and a legitimate
manner hence why is it that the wife will get 75% of the property and the
husband just 25% when actually he has contributed equal amount to build or
buy this property. Why is it that the women is not supposed to give her
streedhan which she has got in her own name and only the husband has to now
give his separate property which includes the ancestral property, vara dakshina
and property received through gift during divorce? Isn’t this discriminatory?
Earlier there was a hue and cry that women were always discriminated but now
all the laws in the name of uplifting the female section of the society are
drafting such laws that are actually keeping the women on a higher pedestal
than men rather than  keeping them on an equal footing. This amendment can
give rise to misuse of this law, a similar situation as to the misuse of Section
498A of the Indian Penal Code. One of the problems that this amendment would
have started is, that it would have led to a decrease in the sanctity of marriage.
None of the husbands would ever trust their wives and thus they would never
buy property in his name and rather would buy it in his mother’s name or
father’s name or any other relative’s name so that his wife will not have a right
in that property upon divorce.

But now fortunately this amendment was only passed by the Upper house and
not by the Lower house and thus the Hindu Marriage Act, 1955 and the Special
Marriage Act, 1954 has not been amended.

9. Explain religious pluralism and its implications in lndia

Uniform Civil Code Religious and pluralism

Uniform civil code means uniformity in personal laws. It will be a neutral law
which doesn’t have anything to do with religion, the concept of uniform civil
code originated from the concept of civil law code which includes:

Modernization: Some communities think that Uniform Civil Code is ban for
them as it is against their religion. Nevertheless it is modernization of their
religious law which will boost up their equality and will make them rich
traditionally and socially.

Diverse culture: Country has diverse culture, tradition, religion to make them
more progressive then, we need to remove discrimination on basis of religion,
caste, sex. Uniform Civil Code is the modern way to treat everyone equal in
every aspect.
Justice: This code will help in speedy justice to everyone and courts will have
less burden so justice will not be delayed.

Abolish discrimination: People only need to understand that the Uniform Civil
Code is sign to abolish discrimination amongst everyone and this code will not
harmed by any religion and no one should get harm by their own religion.

Secularism: UCC involves secularism. UCC is both glorified as well as criticised

but in today scenario implementation of UCC is must to stop the internal war of
the country and to make the nation growing traditionally as well as
economically.

Equal in laws: According to Article 14 of the Indian constitution, every single

citizen is equal in the eyes of law and court. But in India, we have personal laws
based on the particular religion. For example, a Muslim can marry multiple
times and he will not be prosecuted but if there is any Hindu, Christian or Sikh
then he will be prosecuted by the court which is against the saying of Article 14
of Indian constitution. This is not equality in real means. If we want equality
then there should be the same laws related to marriage, adoption, divorce,
inheritance, family, land etc. Then the exact definition of equality will be
defined. In some aspects personal laws are violation of article 14 of the
constitution of India.

Uniformity: To maintain the uniformity of laws the government must adopt the
piecemeal ways.

Uniform principles: The word uniformity means all communities must be

governed by uniform principles.

Awareness Camp: This will modernization and humanize all personal laws.
Government should take steps towards increasing the awareness camp among
public and tell them benefits of this code so, no other person can manipulate
them.

No hurt to religious sentiments: This code must keep balance between

religions, fundamental rights and not hurt sentiments of any religion.

Equal to every community: This code should be without biasness and in

uniformity which is equal for every community.
Implication of Uniform Civil Code

 Equal Status For All: Uniform Civil Code (UCC) will have a common civil
and personal law which is equal for all irrespective of their religion, class,
caste, gender etc.
 Help in Build a new society: Almost 55% of Indian populations are below
25 years. Their social attitudes and aspirations are shaped by universal and
global principles of equality, humanity, and modernity. Uniform Civil Code
(UCC) will help to utilize their full potential towards nation building.
 Support and Promote National Integration: After the formation of
Uniform Civil Code (UCC), every citizen will be equal which will boost the
national integrity. Then the gender, caste, creed, etc. will not be a matter.
 Social Reform: India is a secular country and has so many personal laws
which discriminate Indian citizen on the basis of gender, religion, culture,
etc. and every personal law is different from other law. So after the
implementation of Uniform Civil Code (UCC), India will undergo another
social reform in this century and Indian citizen will also enjoy a codified
personal law.
 Gender Equality: This will be the best advantages especially for women as
still after so many years of independence, they are battling and struggling
for their rights. Personal laws of almost all religions are discriminatory
towards women. Uniform Civil Code (UCC) will enable to abolish gender
discrimination and will bring both men and women at par.

10.What are the various constitutional provisions to implement gender

iustice in lndia?
(see attached pdf)

11.Doctrine of Aul

There may be cases where the arithmetic sum of the functional shares allotted
to the heirs of the deceased is more than equity or less than equity. Where the
sum of the shares is less than equity, then the doctrine of Aul or doctrine of
increase is applied. When the total shares exceed unity, then the shares of each
sharer is reduced by making a common denominator and increasing the
denominator in order to equate it to the sum of numerators. 

Let us understand with the help of an illustration.

Where the husband gets ½ share and 2 full sisters get ⅔ share, the total
becomes 7/6 which is greater than 1. This means that the doctrine of Aul is to
be applied. 

Step 1: Make a common denominator. So, the common denominator is 6.

Step 2: Increase the denominator and make it equal to the sum of the
numerators. So, 3/6 + 4/6 changes to 3/7 + 4/7 = 7/7 = 1. 

Now, the shares are divided proportionately. The husband will get a 3/7 share
and the sisters will get 4/7 share collectively.    

12.Doctrine of Radd
After the division of shares, the total allotted shares are less than 1, and there
is no residuary to inherit the residue, then the residue reverts back to the
sharers in the same proportion of their shares. The only exception to this rule is
that the wife or husband is not entitled to receive the return in the presence of
an heir. This is the doctrine of radd or doctrine of return. 

Following is an illustration for better understanding.

The Mother of the deceased has ⅙ share and the daughter has ½ share of the
estate. The total is ⅔, which is less than 1. Hence, the doctrine of radd will be
applied.

Step 1: Make a common denominator. Here, the common denominator is 6.

Step 2: Decrease the denominator and make it equal to the sum of the
numerators. So, ⅙ + 3/6 becomes ¼ + ¾ which is equal to 1. 

Thus, the mother will get ¼ share and the daughter will get ¾ share.