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QUESTION AS TO WHETHER CHILDREN FROM A SECOND MARRIAGE OF A HINDU DIED INTESTED WOULD HAVE A SHARE IN THE ANCESTRAL PROPERTY AN ANALYSIS OF JUDGMENT REFERRED TO LARGER BENCH

August 12, 2021

To understand the question, we must know the law. Preliminary: Point to be considered about Second Marriage is a person is in relation without taking divorce and is not a widower, than what is stated herein is applicable. If Second Marriage is legal than children born out of wedlock have equal rights that of first marriage. Hindu Law: This is pertaining to Hindu succession and testator who died without making a WILL. Such succession is governed by Hindu Succession Act,1956. Who is Hindu? According to Hindu Succession Act it applies to : (a) to any person, who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj; (b) to any person who is a Buddhist, Jaina or Sikh by religion; and (c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. The  Explanation says.—The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:— (a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion; (b) any child, legitimate or illegitimate one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; (c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion. It also applies to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs and  included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section. Pondicherry: this Act shall apply to the Renouncants of the Union territory of Pondicherry.” [Regulation 7 of 1963, sec. 3 and First Sch. (w.e.f. 1-10-1963).] (a) “agnate”—one person is said to be an “agnate” of another if the two are related by blood or adoption wholly through males; (c) “cognate” — one person is said to be a cognate of another if the two are related by blood or adoption but not wholly through males; (d) the expression “custom” and “usage” signify any rule which having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family; (e) “full blood”, “half blood” and “uterine blood”— (i) two persons are said to be […]

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CAN THERE BE TWO PROBATES /LETTERS OF ADMINISTRATION IN INDIA?

November 18, 2020

An interesting question came up recently, can there be more than one probate ? One for  Specific property and another for rest or general properties? It was a different question, and I was curious to know can this happen? So, started reading provisions and on research I got the answer. No, you will have to read entire blog. It was not easy for me too. So, let’s go… When there is a Will or application of Letters of Administration its governed by Indian Succession Act,1925. Otherwise property is devolved as per personal succession. Let’s see provisions of The Indian Succession Act,1925 Section 232 in The Indian Succession Act, 1925 232. Grant of administration of universal or residuary legatees.—When— (a) the deceased has made a Will, but has not appointed an executor, or (b) the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the Will, or (c) the executor dies after having proved the will, but before he has administered all the estate of the deceased, a universal or a residuary legatee may be admitted to prove the Will, and letters of administration with the Will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered. Section 254 in The Indian Succession Act, 1925 254. Appointment, as administrator, of person other than one who, in ordinary circumstances, would be entitled to administration.— (1) When a person has died intestate, or leaving a Will of which there is no executor willing and competent to act or where the executor is, at the time of the death of such person, resident out of the State, and it appears to the Court to be necessary or convenient to appoint some person to administer the estate or any part thereof, other than the person who, in ordinary circumstances, would be entitled to a grant of administration, the Court may, in its discretion, having regard to consanguinity, amount of interest, the safety of the estate and probability that it will be properly administered, appoint such person as it thinks fit to be an administrator. (2) In every such case letters of administration may be limited or not as the Court thinks fit. Section 255 in The Indian Succession Act, 1925 255. Probate or administration, with Will annexed, subject to exception.—Whenever the nature of the case requires that an exception be made probate of a Will, or letters of administration with the Will annexed, shall be granted subject to such exception. Section 257 in The Indian Succession Act, 1925 257. Probate or administration of rest.—Whenever a grant with exception of probate, or of letters of administration with or without the Will annexed, has been made, the person entitled to probate or administration of the remainder of the deceased’s estate may take a grant of probate or letters of administration as the case may be, of the rest of the deceased’s estate. The answer to the question propounded in the order of reference must be found only in chapters 1 and 2 […]

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CAN HUF CO-PARCENER GIFT HIS UNDIVIDED INTEREST IN THE PROPERTY TO ANOTHER CO-PARCENER?

November 14, 2020

Let us first understand the Hindu Law to discuss and answer this question. 30. Testamentary succession. —[***] Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so[disposed of by him or by her], in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus. Explanation.— The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this[section.] Hindus have two schools of thought Dayabhaga and Mitakshara. Dayabhaga is practiced in West Bengal while Mitakshara is followed in rest of India. Coparcener: The evolution of law: The term coparcener under the Mitakshara system of jurisprudence has a distinct meaning. Its essential characteristic is that the coparcener possesses a right to the family property by birth, the existence of a mere right to partition of family property, cannot be regarded as the touch-stone of coparcenership. Only a male born or adopted into the family can under the ordinary Hindu law, be a coparcener. the right of the widow of a coparcener under the Act is derived under the statute and not by any fiction so as to enable her to take under the general law. So far as alienation of coparcenary property are concerned, it appears that such alienation were permissible in eighteenth century. Indeed, in Suraj Bunsi Koer v. Sheo Proshad Singh and Ors., ILR 6 IA 88 the Privy Council observed as follows:- ” it has been settled law in the presidency of Madras that one coparcener may dispose of ancestral undivided estate, even by contract and conveyance, to the extent of his own share; and a fortiori that such share may be seized and sold in execution for his separate debt.” Thus, the Privy Council also noticed that in Madras alienations by gift were recognized. Such alienations were held by their Lordships to be inconsistent with the strict theory of joint and undivided Hindu family. It is, however, a settled law that a coparcener may alienate his undivided interest in the coparcenary property for a valuable consideration even without the consent of other coparceners. As has been observed by the Privy Council in Suraj Bunsi Koer’s case (supra), such recognition of alienations of coparcenary property for valuable considerations has been one of gradual growth rounded upon the equity which the purchaser for value has to be allowed to stand in his vendor’s shoes and to work out his rights by means of a partition. Although at the time of the judgment of the Privy Council in Suraj Bunsi Koer’s case, the Madras Courts recognised alienations by gift, as time passed the courts of law declared alienations by gift of undivided interest […]

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