Whether in Maharashtra in civil case summons can be served to female?

 In view of above, the subordinate courts are directed to ignore the restrictions contained in Order V Rule 15 of the Code of Civil Procedure, as amended by the Bombay High Court with effect from 01.10.1983, which requires service to be done only on adult male member of the family and instead follow Rule 15 of Order V of Code of Civil Procedure 1908 as enacted by Parliament, which reads as follows:

"15. Where service may be on an adult member of defendant's family.- Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him.

Explanation.- A servant is not a member of the family within the meaning of this rule."

Bombay High Court

Rajkumar Sampatraoji Kuthe vs Iind Additional District Judge on 16 September, 2011

Bench: S.A. Bobde, M.N. Gilani

                                             1

          

Print Page

Whether Article 65(b) of limitation Act is applicable to suit filed by legal heirs of female who was absolute owner of suit property?

Article 65(b) applies where the female was a 'limited owner' with regard to the disputed property. Hence, if the sale is not for legal purposes, it would not be binding on the estate, the husband's heirs who would be entitled to inherit the estate after the widow's death, would be entitled on such death to sue for the recovery of the property from the purchaser. As their right would be one derived from the husband and not from the widow, it would be independent of the widow and they would be the persons "entitled to sue for possession of the property on the death of the widow" within the meaning of Explanation (b) to Article 65. Hence, the above Explanation will apply to their suit and they would be entitled to a period of 12 years from the widow's death within which to bring the suit as held by Full Bench verdicts in Amar Singh and Ors. v. Sewa Ram and Ors. MANU/PH/0271/1960 : AIR 1960 Punjab 530, Harak Singh v. Kailash Singh and Anr. MANU/BH/0191/1958 : AIR 1958 Pat. 581; and Mt. Lukai W/o Katikram and Ors. v. Niranjan Dayaram and Ors. MANU/MP/0056/1958 : AIR 1958 MP 160.

13. In the instant case possession never became adverse to the Plaintiffs. There is concurrent finding recorded that the Plaintiffs were in joint possession of the disputed land on the date of filing of the suit. The Defendants have taken the plea of ouster and the suit has been filed beyond 12 years of death of Shakuntalabai but they have not been able to prove their adverse possession. On the contrary the finding is that Chimasaheb admitted the title of Anandibai. The finding is that till 1976, Chimasaheb never denied the title of Anandibai. Be that as it may. As adverse possession has not been concurrently found by the three courts and in this case the starting point of limitation would not be the date of death of Shakuntalabai in the year 1962 as she was full owner, as such suit could not be said to be barred by limitation.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3110 of 2012

Decided On: 25.04.2017

Bapusaheb Chimasaheb Naik-Nimbalkar (dead through L.Rs.) and Ors. Vs.  Mahesh Vijaysinha Rajebhosale and Ors.

Hon'ble Judges/Coram:

Arun Mishra and S. Abdul Nazeer, JJ.

Citation: 2018(1) MHLJ11

Print Page

Whether property in name of female members of joint family can be treated as property of joint family?

In a Hindu joint family, if one sues for partition on the foot that the properties claimed by him are joint family properties, then three circumstances ordinarily arise. The first one is an admitted case where there is no dispute about the existence of joint family properties at all. He second is a case where certain properties are admitted to be joint family properties and the other properties in which a share is claimed are alleged to be the accretions or acquisitions from the income of the available joint family properties or in the alternative have been acquired by a sale or conversion of such available properties. The third head is that the properties standing in the names of the female members of the family are benami and that such a state of affairs has been deliberately created by the manager or the head of the family and that really the properties or the amounts standing in the names of female members are properties of the joint family. It is by now well established that properties standing in the names of the female members are their own, unless there is definite, clinching proof to the contrary by the challenging member. It is not for the female member to prove how she acquired the same. In ordinary cases also where a plea of benami is set up it is for the person who comes to Court to establish that the properties standing in the name of the other co-parceners or members are really joint family, properties which stemmed from the joint family nucleus. 

IN THE HIGH COURT OF MADRAS

Decided On: 13.08.1976

Ranganayaki Ammal and Ors. Vs. S.R. Srinivasan and Ors.

Print Page

Whether female member of joint family is required to prove how she acquired property standing in her name?

It is well settled legal principal that initially burden lies upon the member who alleges that a particular property is a joint family property to the extent that the alleged joint family nucleus must have left sufficient surplus income and by utilising the same, the property in question could have been acquired. If the initial burden as referred to above is proved, then the burden shifts to the member of the joint family setting up claim that it is his/her personal property and the same has been acquired without any assistance from the joint family property. On the failure to prove the existence of nucleus, the inevitable presumption is that the acquisition in question is nothing but self acquisition. Mere fact of existence of a joint family does not lead to the presumption that a property held by any of its members is joint family property unless the above aspects are proved. If the property acquired is standing in the name the of the female member of a joint family, she need not prove as to how she acquired it.

IN THE HIGH COURT OF MADRAS

A.S. No. 593 of 2016 and C.M.P. No. 15815 of 2016

Decided On: 27.04.2017

Sadasivam and Ors. Vs.  Sankar and Ors.

Hon'ble Judges/Coram:
R. Subbiah and M.S. Ramesh, JJ.
Citation: AIR 2017 Madras 175

Print Page

Whether under muslim law female can perform act of Mutawalli?

It is not disputed that under Mahomedan Law a femalealso can perform the act of Mutawalli. If a female can perform the
act of Mutawalli the defendant No.5 should not have appointed any 
other person as Mutawalli in exercise of the power under Section 63
of the Wakf Act, 1995. The testator in his Will creating the Wakf did
not say anything about the performance of any spiritual duties but
simply stated about lighting of candle and maintenance of the
Mosque out of the income of the Wakf property and those can be
performed by any Mutawalli whether a male or female. From the
pleadings and evidence of defendant No.5 it is clear that only based
on the statement of the President and Secretary of the SubDivisional
Committee the defendant No.5 without having any
enquiry appointed Abdul Mannan Choudhury as Mutawali and
thereafter Abdul Hannan Choudhury as Mutawali which was not at
all called for. There is nothing in the Mahomedan Law as admitted
by the defendants also that a female cannot perform the act of
Mutawalli. The plaintiff admittedly being a descendent of the
testator Nachir Mohammed can perform the act of Mutawalli
irrespective of the fact that her mother died before the death of her
grandmother Esha Bibi. That point that Laila Bibi died before Esha
Bibi is not material point to be considered by the Court and I do not
find any importance to be attached on that issue. I have therefore
no hesitation to come to the conclusion that the plaintiff being the
legal representative of the testator Nachir Mohammad was/is

entitled to act as Mutawali of the Wakf property.

THE HIGH COURT OF TRIPURA
 AGARTALA
RSA NO.67 OF 2008


Smt. Rahima Begam Choudhury,
 -Vs –
The State of Tripura,
BEFORE
HON’BLE MR. JUSTICE S.C. DAS


Date of delivery of
Judgment & Order : 06.05.2015
Citation:AIR 2016(NOC) 549 Tri

Print Page

Whether Widow who remarries loses rights over late husband's property?

Section 14(1) categorically states that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner. The explanation to section 14(1) clarifies that property includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever etc. We do not find any provision in Hindu Succession Act, 1956 in pari materia with section 2 of the Hindu Widows' Re-Marriage Act, 1856. In other words, there is no provision that disqualifies a widow of a male Hindu from inheriting from her husband if she remarries, after his death.

Bombay High Court

Sanjay Purshottam Patankar vs Smt. Prajakta Pramod Patil on 25 June, 2015

CORAM: V.M. KANADE & B.P. COLABAWALLA JJ. 

PRONOUNCED ON : 25TH JUNE, 2015 

Print Page

Whether hindu female can blend her property with property of joint family?

The theory of blending under the Hindu Law involves the process of a wider sharing of one's own properties by permitting the members of one's joint family the privilege of common ownership and common enjoyment of such properties. But, while introducing. new sharers in one's exclusive property one does not by the process of blending efface oneself by renouncing one's own interest in favour of others. To blend is to share along with others and not to surrender one's interest in favour of others to the exclusion of oneself. If a Hindu female who is a member of an undivided family impresses her absolute exclusive property with the character of joint family property, she creates new the exclusion of herself because not being a to demand a share in the joint family She has no right for survivorship and is of the joint family property. Her right to property is contingent, inter alia, on a husband and his sons. Under s. 3 (2) and claimants to her property to coparcener she has no right property by asking for a partition. entitled only to be maintained out demand a share in the joint family partition taking place between her (3) of the Hindu Women's Right to Property Act, 1937, her right to demand a partition in the joint family property of the Mitakshara joint family accrued on the death of her husband. Thus, the expression 'blending' is inapposite in the case of a Hindu female who puts her separate property, be it her absolute property or limited estate, in the joint family stock.

It is well settled that a Hindu coparcenary is a much narrower body than the joint family and it includes only those persons who acquire by birth an interest in _the joint or coparcenary property. These are the three generations next to the holder in unbroken male descent (see Mulla's Hindu Law, 14th Ed. p. 262, para 213). A Hindu female therefore is not a coparcener. Even the right to reunite is limited under the Hindu law to males (Mulla, p. 430, para 342). It does not therefore militate against the fundamental notions governing a Hindu joint family that a female member of the joint family cannot blend her separate property, even if she is an absolute owner thereof, with the joint family property.

In our opinion, therefore, the income of Rs. 21,544 from Nishat Talkies was not assessable in the hands of the Hindu undivided family on the basis that the appellant had blended it with the joint family property.

Supreme Court of India

Pushpa Devi vs Commissioner Of Income Tax, New ... on 30 August, 1977
Equivalent citations: 1977 AIR 2230, 1978 SCR (1) 329

Print Page