What is the basic concept of 'Uniform Civil Code' and its implications on personal laws?

 

From marriage to adoption, how Uniform Civil Code could subsume personal laws across religions

The Uniform Civil Code is back in the news again after Prime Minister Narendra Modi made a strong push for it. If it comes into force, separate personal laws governing marriages, divorce, and inheritance of Hindus, Muslims, Sikhs, Parsis, and other communities will be subsumed. 

The UCC is the proposal to have one law for the entire country, which will apply to all religious communities in personal matters such as marriage, divorce, inheritance, succession, custody and adoption. The implementation of the UCC is likely to subsume personal laws in the country.

WHAT IS LIKELY TO BE COVERED UNDER UCC?

Marriage, divorce, maintenance, guardianship, adoption, inheritance, and succession are all issues that come within the definition of a 'civil code'. Currently, under Indian law, all these issues are governed by separate provisions under religious customary laws or codified laws pertaining to each religion in India.

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Whether Hindu widow can inherit husband's property if she has not remarried on the day succession opens?

 It is very well true that if we have to deal with rights of a

particular party, we have to consider the provisions of relevant law in

its entirety. Section 14 of the Act of 1956 makes the female Hindu

being absolute owner if she possessed the property. Whereas Section 24 of the said Act disinherits the widow if she re-marries. Here this Court wants to note the difference in between the wordings of Section 2 of the Act of 1856 on one hand and the wordings of Section 24 of the Act of 1956. There is emphasis ‘on the date when succession opens’ as per Section 24 of the Act of 1956. The status of the widow being remarried continuing to be widow must be on the date when succession opens. The wordings “if on the date the succession opens” does not find place in Section 2 of the Act of 1856. So, we have to respect the intention of the legislators while incorporating these provisions in

Section 24 of the Act of 1956. {Para 14}

15] In other words, if the widow has not re-married when the

succession opens, the disqualification under Section 24 of the Act of

1956 will not be applicable. Admittedly, defendant-Sunanda re-married

in May, 1991 (i.e. after opening of succession on 19th April, 1991). For

the above discussion, contention of the appellant so as to disqualify the

defendant-Sunanda cannot be accepted.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

SECOND APPEAL NO.144 OF 2007

Smt. Jaiwantabai Shenuji Wankhade Vs  Sunanda w/o Ganesh Dode,

CORAM : S.M. MODAK, J.

PRONOUNCED ON : 23 rd AUGUST, 2021

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Whether on the death of Muslim his legal heirs will inherit his property as joint tenant or tenants in common?

 The cause of action for partition of properties is said to be a perpetually recurring one" See Monsharam Chak-ravarty & Ors. v. Gonesh Chandra Chakravarty & Ors. (2). In Mohammedan Law the doctrine of partial partition is not applicable because the heirs are tenants-in-common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate. The share,,, of heirs under Mohamedan Law are definite and known before actual partition. Therefore on partition of properties belonging to a deceased Muslim there is division by metes and bounds in accordance with the specific share of each heir being already determined by the law.

Supreme Court of India

Syed Shah Ghulam Ghouse Mohiuddin ... vs Syed Shah Ahmed Moriuddin Kamisul ... on 17 February, 1971

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What is difference between succession and survivorship as per Hindu Succession Act?

Prior to enactment of Hindu Succession Act 1956,on the death of one coparcener of joint family,other coparceners of joint family were getting property of joint family by survivorship and was not inherited by his legal heirs. This rule was partly abrogated by Hindu Succession Act 1956 and totally abrogated by Hindu Succession Amendment Act 2005.Now joint family property is inherited by legal heirs of deceased and not by other coparceners of joint family. Joint family property passes to legal heirs of deceased by succession or inheritance. 

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How to ascertain the legal heirs of female Hindu for succession to her property if her husband pre-deceased her?

The only reason why the High Court has allowed the second appeal is on the ground that the appellant is not an heir of her mother-in-law under the Hindu Succession Act.

3. This finding proceeds on a misconception of the provisions of the Hindu Succession Act. Section 15 of the Hindu Succession Act provides general rules of succession in the case of female Hindus. Under Sub-section (1), the property of a Hindu female dying intestate shall devolve (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband. Gomathi Ammal does not have any heirs falling under (a). Therefore, we have to examine who are the heirs of her husband. The heirs of a male Hindu are set out in the Schedule to the Hindu Succession Act. Heirs in Class I include a widow of a pre-deceased son. The appellant fits this description. But the High Court has held that when Sesha Iyengar, the husband of Gomathi Ammal died, their son Venkatarama Iyengar was alive. So the appellant cannot be called the widow of a pre-deceased son.

4. In order to decide who are the heirs of a female Hindu under category (b) of Section 15(1), one does not have to go back to the date of the death of the husband to ascertain who were his heirs at that time. The heirs have to be ascertained not at the time of the husband's death but at the time of the wife's death because the succession opens only at the time of her death. Her heirs under Section 15(1)(b) will have to be ascertained as if the succession to her husband had opened at the time of her death. Thus, if at the time of Gomathi Ammal's death, there is any heir of her husband who fits the description in the schedule of being the widow of his pre-deceased son, she will be one of the heirs entitled to succeed. The status of the heir must be determined at the time of the death of the female whose heirs are being ascertained. The appellant was the widow of a pre-deceased son on the date when Gomathi Ammal died. Therefore, the learned single Judge was not right in coming to the conclusion that the appellant is not an heir of Gomathi Ammal.

IN THE SUPREME COURT OF INDIA

C.A. No. 1944 of 1998 

Decided On: 03.04.1998

 Seethalakshmi Ammal Vs. Muthuvenkatarama Iyengar and Ors.

Hon'ble Judges/Coram:

S.V. Manohar and D.P. Wadhwa, JJ.

Citation: AIR 1998 SC 1692

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Whether children born to adoptee father prior to his adoption can inherit his property in Adoptive family?

 Since the succession has opened after the death of Laxman on 10th

January, 1987, therefore, succession has to be in accordance with

the Act and not as per Hindu law as all text, rule or interpretation

of Hindu law prior to commencement of the Act have ceased to

have any effect unless expressly provided for in the said Act. This

Court in a Judgment reported as Bhaiya Ramanuj Pratap Deo v.

Lalu Maheshanuj Pratap Deo(1981) 4 SCC 613 held that a bare perusal of

Section 4 would indicate that any custom or usage as part of Hindu

law in force will cease to have effect after the enforcement of

Hindu Succession Act with respect to any matter for which

provision is made in the Act.

14. The principle that the Act will be applicable on the date succession

opens is well settled. Reference may be made to a judgment reported

as Bhanwar Singh v. Puran & Ors. (2008) 3 SCC 87, wherein this Court

held that the Act brought about a sea of change in the matter of

inheritance and succession amongst Hindus. Section 4 of the Act

contains a non- obstante provision in terms whereof any text, rule

or interpretation of Hindu Law or any custom or usage as part of

that law in force immediately before the commencement of the

Act, ceased to have effect with respect to any matter for which

provision is made therein save as otherwise expressly provided.

15. Since there is no provision of denying the rights of succession to

the natural born son of an adoptee father, therefore, the succession

will be in terms of the provisions of the Act alone.

In my opinion, the fictional severance of ties with the

natural family would not mean that her children would

cease to be her children or can be considered to be not

her children by means of a legal fiction. If by virtue of

the definition in Section 3(j) even the illegitimate

children of a Hindu female have been given a right to

inherit her property, then it would not be permissible to

say that her legitimate children should be excluded

because they were born to her prior to the date of her

husband’s adoption. If, however, the Legislature had

specifically provided for this, then effect must be given

to such a provision and the wishes of the Legislature

respected. Where, however, there is no such clear

provision, such exclusion would appear to be against

the plain language of the enactment and it would not

be proper to come to any such conclusion.”

21. In view of the provisions of the Act which do not make any

distinction between the son born to a father prior or after adoption

of his father and that there is no provision which bars the natural

born son to inherit the property of his natural father, therefore, the

High Court has rightly upheld the rights of the sons of Laxman. In

fact, in the Full Bench judgment of Bombay High Court in Martand

Jiwajee Patil, it has been held that the natural father retains the

right to give in adoption his son born before his own adoption.

Therefore, if he has a right to give his son in adoption, such son has

a right to inherit property by virtue of being an agnate. There was

a full blood relationship between the three sons and the daughter

who was born after adoption. All the children of Laxman are

entitled to inherit the property of their natural father and mother in

accordance with the provisions of the Act as succession has opened

after the death of Laxman in 1987 and subsequently the mother in

the year 1992.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6642-6643 OF 2010

KALINDI DAMODAR GARDE  Vs MANOHAR LAXMAN KULKARNI 

HEMANT GUPTA, J.

Dated:FEBRUARY 07, 2020.
Citation: (2020) 4 SCC 335

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Supreme Court: While considering right of succession of married daughter over leased property provisions of rent Act are not relevant

 From the impugned orders passed by the inventory court and the High Court, it is not in dispute that both the courts below have held against the Appellants, more particularly Appellant No. 1 - married daughter, mainly relying upon and considering Section 2(o) of the Goa Rent Act, which, as observed hereinabove, ought not to have been considered and has no relevance while considering the right of succession of a married daughter in the "lease premises" under the provisions of the erstwhile Portuguese Civil Code and subsequently on enactment of the Inventory Proceeding Act, 2012. The sum and substance of the above discussion would be that a married daughter would have a right of succession in the "lease premises" also.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2961 of 2019 

Decided On: 13.03.2019

 Uma Mahesh Bandekar Vs.   Vivek Sadanand Marathe 

Hon'ble Judges/Coram:

L. Nageswara Rao and M.R. Shah, JJ.

Citation: 2019(1) RCR(Rent) 401

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Supreme Court: While considering right of succession over lease property provisions of rent Act are not to be considered

We are of the opinion that both, the learned Inventory Court as well as the High Court have committed a grave error in relying upon the provisions of the Goa Rent Act, while considering the right of succession of a married daughter in the "lease premises" vis a vis and/or under the Inventory Proceeding Act, 2012.

9. At the outset, it is required to be noted that the proceedings before the inventory court as well as the High Court were under the provisions of the Inventory Proceeding Act, 2012/Portuguese Civil Code, which shall be continued on enactment of the Inventory Proceeding Act, 2012, as if those proceedings were/are initiated under the Inventory Proceeding Act, 2012 (in view of Section 460 of the Inventory Proceeding Act, 2012). It is required to be noted that the proceedings before the inventory court and the High Court were not at all with respect to Goa Rent Act. The proceedings were not between the landlord and the tenant. The provisions of Goa Rent Act shall be applicable with respect to dispute between the landlord and the tenant. As per the preamble of the Goa Rent Act, it has been enacted for control of rents and evictions. At the cost of repetition, it is observed that the dispute was neither under the provisions of the Goa Rent Act nor between the landlord and the tenant and therefore both, the inventory court as well as the High Court have erred in considering the provisions of the Goa Rent Act, more particularly Section 2(o) of the Goa Rent Act. The only question which was before the inventory court and the High Court was in respect of the rights of succession of a married daughter in the "lease premises" under the provisions of the Portuguese Civil Code and subsequently under the provisions of the Inventory Proceeding Act, 2012. Therefore, what is required to be considered is whether under the provisions of the Portuguese Civil Code and on enactment of Inventory Proceeding Act, 2012, whether the married daughter would have a right of succession in the "lease premises" or not?

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2961 of 2019 

Decided On: 13.03.2019

Uma Mahesh Bandekar  Vs.  Vivek Sadanand Marathe

Hon'ble Judges/Coram:

L. Nageswara Rao and M.R. Shah, JJ.

Citation: 2019(1) RCR(Rent) 401

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Whether Child Born Out Of Marriage Between Muslim Man And Hindu Woman Entitled To get His Father's Property?

For example, if a man were to marry a nonscriptural
woman, the marriage would be only
invalid, for she might at any time adopt Islam or
any other revealed faith, and thus remove the
cause of invalidity. The children of such
marriage, therefore, would be legitimate.”
Tahrir Mahmood in his book Muslim Law in India and
Abroad, (2nd edition) at page 151 also affirms that the child of a
couple whose marriage is fasid, i.e., unlawful but not void, under
Muslim law will be legitimate. Only a child born outside of
wedlock or born of a batil marriage is not legitimate.
A.A.A. Fyzee, at page 76 of his book Outlines of
Muhammadan Law (5th edition) reiterates by citing Mulla that the
nikah of a Muslim man with an idolater or fireworshipper
is only
irregular and not void. He also refers to Ameer Ali’s proposition
that such a marriage would not affect the legitimacy of the
offspring, as the polytheistic woman may at any time adopt
Islam, which would at once remove the bar and validate the
marriage.
12. The position that a marriage between a Hindu woman and
Muslim man is merely irregular and the issue from such wedlock
is legitimate has also been affirmed by various High Courts. (See

Aisha Bi v. Saraswathi Fathima, (2012) 3 LW 937 (Mad),
Ihsan Hassan Khan v. Panna Lal, AIR 1928 Pat 19).
13. Thus, based on the above consistent view, we conclude that
the marriage of a Muslim man with an idolater or fireworshipper
is neither a valid (sahih) nor a void (batil) marriage, but is merely
an irregular (fasid) marriage. Any child born out of such wedlock
(fasid marriage) is entitled to claim a share in his father’s
property. It would not be out of place to emphasise at this
juncture that since Hindus are idol worshippers, which includes
worship of physical images/statues through offering of flowers,
adornment, etc., it is clear that the marriage of a Hindu female
with a Muslim male is not a regular or valid (sahih) marriage, but
merely an irregular (fasid) marriage.
14. In this view of the matter, the trial Court and the High
Court were justified in concluding that the plaintiff is the
legitimate son of Mohammed Ilias and Valliamma, and is entitled
to his share in the property as per law. 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5158 OF 2013

MOHAMMED SALIM  Vs SHAMSUDEEN 

MOHAN M. SHANTANAGOUDAR, J.

Dated:January 22, 2019.

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Whether children born out of void marriage can claim share in property of their parents during their life time?

 Thus, it is now made more than clear that, the children of a void marriage, though regarded as legitimate, such children would not be entitled to any share in the properties, which are ancestral coparcenary joint family properties of their parents. Their right to claim the share remains limited only to the extent of the separate property of their father, but in that property, they cannot make any claim during the lifetime of their father. Their right in the separate properties of their father will accrue only on the death of their father and, that too, by way of succession.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 737 of 2013, Civil Application No. 1729 of 2013 and Second Appeal No. 738 of 2013

Decided On: 30.07.2018

 Balkrishna Pandurang Halde Vs. Yeshodabai Balkrishna Halde

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(6) MHLJ 947

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Whether plaintiff has proved his title if defendant has failed to prove his title?

As pointed out by the Apex Court in its decision reported in Brahma Nand v. Mathra Puri, MANU/SC/0295/1964 : A.I.R. 1965 SC 1506, the plaintiff has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant has no title to the property. Applying the above proposition of law, as pointed out by the Apex Court, I am of the firm view that the plaintiff has not established his case, consequently the judgment and decree of the courts below are erroneous and liable to be set aside."
5(af). In other words, aforesaid case law is for the proposition that plaintiff has to succeed or fail on the title he establishes and plaintiff cannot succeed by saying that defendant has no title to the property. To put it in terms of a generic legal principle, plaintiff has to discharge his burden of proof and cannot succeed by picking holes in the defence of defendant.

5(ag). In the instant case, from the narrative and discussion supra, it will be clear that plaintiffs who claim title to the suit property by succession have not been able to establish that Palani Kudumban predeceased Thavasi. To be noted, Palani Kudumban predeceased Thavasi and Thavasi inherited the entire suit property is pivotal and non negotiable for plaintiffs to establish their title. In other words, it is the sheet anchor and bedrock of plaintiffs' case.

5(ah). Having failed in discharging this burden of proof, attempt on the part of plaintiffs to say that it is unlikely that Ayyakutty could have become sole and absolute owner of suit property, it is unlikely that Ex. A.3 would have been executed jointly by two wives of Thavasi and wife of Palani Kudumban in 1947 if Palani Kudumban had predeceased Thavasi are all clearly attempts to pick holes in the case of defendant. Obviously, this is impermissible and plaintiffs cannot succeed on such basis. To be noted, it is not only a mere case of picking holes in the defence of defendant, it is a case of casting a cloud on the defence by making several presumptions and assumptions which are all in the realm of surmises and conjectures.

IN THE HIGH COURT OF MADRAS (MADURAI BENCH)

S.A. No. 871 of 2002

Decided On: 18.04.2018

 Chinnan  Vs. Sangan and Ors.

Hon'ble Judges/Coram:
M. Sundar, J.

Citation: AIR 2018(NOC) 904 Mad

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Whether court can direct bank to deposit money of deceased for distribution to legal heirs inspite of nomination?

With regard to the first point, this Court in a Judgment reported in MANU/GH/0183/1997 : 1998 (2) GLT 350 in the case of Smt. Sunita Shambhu Shirodkar v. Shri Madhukar Lotlikar & Ors. has held that the nominee does not step into the shoes of the legal heirs merely on account of his nomination by the depositor. The provisions of Section 45ZA of the Banking Regulations Act relied upon by the learned Counsel appearing for the Respondent No. 1 have also been taken into consideration whilst coming to the conclusion that even though the nominee may have a right to recover the amounts from the Bank, nevertheless, it is always open to the Court to direct such amount to be deposited in the Court for distribution among the legal heirs. The learned Single Judge of this Court has observed at Paras 10, 11, 12 and 13 thus :

"10. Now as far as the State of Goa is concerned, the law of succession which is in force in the State provides that where any person dies without disposing of his properties, or disposing only a part thereof, or having made the disposition, the will is annulled, revoked or lapses, all legal heirs shall have the said properties or part thereof, in respect of which the testator has not made any disposition. The provisions in this regard are found in Article 1968 of Portuguese Civil Code. The order of legal succession is firstly to the descendants, then to the ascendants, followed by brothers and their descendants, then surviving spouse, then to the collaterals and lastly to the State as is provided in Article 1969 of the said Code.

11. Applying the law laid down by the Apex Court in the above referred matter and considering the provisions of the law of succession in force in the State as also the provisions contained in Section 45ZA of the said Act, it is clear that whenever a depositor appoints his nominee and the depositor dies before the maturity of the fixed deposit for release, the nominee so appointed would certainly be entitled to collect the amount payable on such fixed deposit amount on its maturity for release. However, that would not take away the right of the legal heirs of the deceased depositor from claiming right to the amount standing to the credit of the deceased depositor in accordance with the provisions of law of succession in force. This is so because a nominee is merely a representative of the lawful successor of the deceased depositor to receive the payment on the maturity of the deposit for release. The nominee does not step in the shoes of the legal heirs merely on account of nomination by a depositor.

IN THE HIGH COURT OF BOMBAY AT GOA

Second Appeal No. 49 of 2016

Decided On: 15.03.2017

 Vishwanath Yadav and Ors.Vs. Kashinath Yadav and Ors.

Hon'ble Judges/Coram:

F.M. Reis, J.

Citation: 2017(4) MHLJ 162,AIR 2017 Bom 258

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Whether estate will vest in nominee instead of legal heirs in case of nomination?

The provisions relating to nominations under the various Enactments have been consistently interpreted by the Apex Court by holding that the nominee does not get absolute title to the property subject matter of the nomination. The reason is by its very nature, when a share holder or a deposit holder or an insurance policy holder or a member of a Co-operative Society makes a nomination during his life time, he does not transfer his interest in favour of the nominee. It is always held that the nomination does not override the law in relation to testamentary or intestate succession. The provisions regarding nomination are made with a view to ensure that the estate or the rights of the deceased subject matter of the nomination are protected till the legal representatives of the deceased take appropriate steps. None of the provisions of the aforesaid Statutes providing for nominations deal with the succession, testamentary or non-testamentary. As observed by the Apex Court, the legislative intention is not to provide a third kind of succession. In Sarbati Devi, the Apex Court held in paragraph 5 which reads thus:

" ......But the summary of the relevant provisions of Section 39 given above establishes clearly that the policy-holder continues to hold interest in the policy during his lifetime and the nominee acquires no sort of interest in the policy during the lifetime of the policy-

holder. If that is so, on the death of the policy-holder the amount payable under the policy becomes part of his estate which is governed by the law of succession applicable to him. Such succession may be testamentary or intestate. There is no warrant for the position that Section 39of the Act operates as a third kind of succession which is styled as a 'statutory testament' in para 16 of the decision of the Delhi High Court in Uma Sehgal case [AIR 1982 Del 36 : ILR (1981) 2 Del 315] . If Section 39 of the Act is contrasted with Section 38 of the Act which provides for transfer or assignment of the rights under a policy, the tenuous character of the right of a nominee would  become more pronounced. It is difficult to hold thatSection 39 of the Act was intended to act as a third mode of succession provided by the statute. The provision in sub-section (6) of Section 39 which says that the amount shall be payable to the nominee or nominees does not mean that the amount shall belong to the nominee or nominees. We have to bear in mind here the special care which law and judicial precedents take in the matter of execution and proof of wills which have the effect of diverting the estate from the ordinary course of intestate succession and that the rigour of the rules governing the testamentary succession is not relaxed even where wills are registered."

(emphasis added) The object of the provisions of the Companies Act is not to either provide a mode of succession or to deal with succession. The object of the Section 109A is to ensure that the deceased shareholder is represented by some one as the value of the shares is subject to market forces. Various advantages keep on accruing to shareholders. For example, allotment of Bonus shares. There are general meetings held of the Companies in which a shareholder is required to be represented.

The provision is enacted to ensure that the commerce does not suffer due to delay on the part of the legal heirs in establishing their rights of succession and claiming the shares of a Company.

35. Considering the consistent view taken by the Apex Court while interpreting the provisions relating to nominations under various Statutes (including the view in the recent decision in the case of Indrani Wahi), there is no reason to make a departure from theconsistent view. The provisions of the Companies Act including Sections 109A and109B, in the light of the object of the said Enactment, do not warrant any such departure. The so called vesting under Section 109A does not create a third mode of succession. It is not intended to create a third mode of succession. The Companies Act has nothing to do with the law of succession. We have gone through every decision and material relied upon by the Appellants to which we have not made a specific reference in this Judgment. We hold that there was no reason to take a view which is contrary to the view taken in the long line of the decisions of the Apex Court on interpretation of provisions regarding nominations. Hence, the view taken in Kokate's case is not correct. We answer the first question in the negative and the third question in the affirmative. The second question is answered accordingly.

Bombay High Court

Shakti Yezdani And Anr vs Jayanand Jayant Salgonkar on 1 December, 2016

Bench: A.S. Oka

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Whether sanyasi can hold personal property?

A math is typically a Hindu religious institution. It was described in Krishna Singh v. Mathura Ahir MANU/SC/0657/1981 : AIR 1980 SC 707 by the Supreme Court, in the following manner:

"'Math' means a place for the residence of ascetics and their pupils, and the like. Since the time of Sankaracharya, who established Hindu maths, these maths developed into institutions devoted to the teaching of different systems of Hindu religious philosophy, presided over by ascetics, who were held in great reverence as religious preceptors, and princes and noblemen endowed these institutions with large grants of property. Dr. Bijan Kumar Mukherjea in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trusts, 4th ed. p. 321 succinctly states:

'Math' in ordinary language signifies an abode or residence of ascetics. In legal parlance it connotes a monastic institution presided over by a particular order who generally are disciples or co-disciples of the superior."

Sital Das (supra) is authority for the proposition that the consequence of entry of an individual into a monastic order, is his civil death:

"entrance into a religious order generally operates as a civil death. The man who becomes an ascetic severs his connection with the members of his natural family and being adopted by his preceptor becomes, so to say a spiritual son of the latter. The other disciples of his Guru are regarded as his brothers, while the co-disciples of his Guru are looked upon as uncles and in this way a spiritual family is established on the analogy of a natural family."

Krishna Singh (supra) states that property belonging to a 'math' is attached to the office of the mahant, and passed by inheritance only who fill the office. This creates an obligation to maintain the trust: "The head of a math, as such, is not a trustee in the sense in which that term is generally understood, but in legal contemplation he has an estate for life in its permanent endowment and an absolute in the income derived from the offerings of his followers, subject only to the burden of maintaining the institution." In Parma Nand v. Nihal Chand MANU/PR/0035/1938 : 65 IA 252 (Privy Council) it was held that:

"this circumstance (the descent from Guru to Chela) does not necessarily lead to the conclusion that a property, when acquired by a Mahant, loses its secular character and partakes of a religious character."

This formulation of law was approved by a larger Bench (of five judges) of the Supreme Court in Gurcharan Prasad (supra). The Supreme Court also took note of and approved Raghbir Lala v. Mohammad Said MANU/PR/0002/1942 : AIR 1943 PC 7, where it was held that:

"No doubt if a question arises whether particular property acquired by a given individual was acquired on his own behalf or on behalf of some other person or institution with whom or with which he was connected the circumstance that the individual so acquiring property was a professed ascetic may have some importance. But it is out of question to suppose that a man's religious opinions or professions can make him incapable in law of holding property."

The Court concluded that "we cannot but hold that the properties in their charge were their personal properties unless it be established that any particular item of property was the subject matter of an endowment or a gift for a particular charitable purpose."

16. Math Sauna (supra) was relied upon by the learned Single Judge to find that even an ascetic or sanyasi can hold personal property and that there is no automatic consequence that upon the ascetic's death, the Guru Bhai becomes heir to the estate of the deceased guru:

"All the facts and circumstances must be taken into consideration and on a balancing of the entire evidence it has to be determined whether the property can be said to belong to the Math or deity or is the personal property of the Mahant, the burden of proof resting on the party who makes the claim."

17. Certain legal principles, therefore, emerge, which have to be applied upon the death of a sanyasi or ascetic. Firstly, his entry into the monastic order has the consequence of a civil death. The "normal" line of succession then gets broken; all properties vest in the Math. Secondly, upon his death, the properties held by him are to be treated as the monastic order's property. Thirdly, there is no presumption regarding lack of the sanyasi's capacity to hold property for himself.

IN THE HIGH COURT OF DELHI

FAO (OS) 513/2012 and 26/2013

Decided On: 30.09.2015

Appellants: Swami Gurudev Muni Chela Sant Sewa Dass Ji
Vs.
Respondent: State and Ors.

Hon'ble Judges/Coram:S. Ravindra Bhat and Deepa Sharma, JJ.

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What are rights of legal heirs of deceased tenant in tenanted premises?

It is obvious that the provisions of section 5(11)(c) of the Rent Act provides for a right of succession different from the one under the ordinary law. It must, therefore, follow that the right of possession also will be of the person who is a tenant under section 5(11)(c). In the circumstances, even if the plaintiff may be entitled to tenancy rights as an heir of Soonabai under the ordinary law, she will have no right of possession, in any case right to immediate possession. No doubt, Bombay Rent Act is a statute which is supposed to be enacted as a temporary measure and so, it was not enacted to last till repealed but for a limited period which is being extended from time to time. It would, therefore appear that the mode of succession provided by the Rent Act is not a permanent mode and the right of the heirs or legal representatives, under the normal law is suspended and eclipsed till the preferential right conferred by section 5(11)(c) to tenancy continues. Hence, at the time of the filing of the suit and even at present, it cannot be said that the plaintiff as an heir and right to the tenancy of or to occupy block C. Her claim can only be to recognition as a tenant under section 5(11)(c) and to occupation alone or jointly with other under the provisions of Rent Act. It is held by this Court that only one person can be recognised as a tenant under section 5(11)(c). However, it is not decided that all other persons who were already staying in the premises will have to go out. I do not think that the intention of the legislature was to protect the possession of only one of the members of the tenant's family or to give a right of protected possession only to one of the heirs. This question will have to be considered when it arises.

Equivalent Citation : 1981 MhLJ876

IN THE HIGH COURT OF BOMBAY

First Appeal No. 662 of 1977

Decided On: 24.07.1981

 C.J. Ghadiali and Ors.

Vs.

 Z.B. Wadiwalla

Hon'ble Judges/Coram:

N.A. Mody, J.

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Whether Hindu widow will become absolute owner of property from which she has right to receive maintenance?

 After hearing the learned counsel on either side, the

following question is formulated for decision in the second

appeal :


                 "Whether the right of Kalikutty for maintenance

                 out of the proceeds of the suit property    has

                 become an absolute right in her favour by virtue

                 of Section 14 of the Hindu Succession Act?"

        4. The right of maintenance of a Hindu widow is not a

right to property, but only a right against the property [See

Vaddeboyina Tulasamma v. Vaddeboyina Sesha Reddi

(AIR 1977 SC 1944)]. In Suraj Mal v. Babu Lal (AIR 1985

Delhi 95), the Delhi High Court         held that the provisions

contained in Section 14 of the Hindu Succession Act would

apply to property possessed by a Hindu female and to which

she had some kind of title, however restricted the nature of her

interest may be. It was clarified by the Delhi High Court in the

said case that Section 14 of the Hindu Succession Act will not

have any application to a case where a widow had no rights

whatsoever in the properties except a right of maintenance out

of the proceeds of the property. Later, in Ram Vishal v. Jagan

Nath [(2004)9 SCC 302], the Apex Court reiterated the

aforesaid propositions holding that to come within the scope of


the said Section of the Hindu Succession Act, the Hindu female

must not only be possessed of the property but she must have

acquired the property either by way of inheritance or devise, or

at a partition or "in lieu of maintenance or arrears of

maintenance" or by gift or her own skill or exertion or by

purchase or by prescription and a mere right of maintenance

without acquisition of some right in the property is not sufficient

to attract the said Section. Paragraph 16 of the said judgment

of the Apex Court reads thus :



          "16. In our view, the authority in Raghubar Singh case3 can be of

          no assistance to the respondent. As has been held by this Court, a

          pre-existing right is a sine qua non for conferment of a full

          ownership under Section 14 of the Hindu Succession Act. The

          Hindu female must not only be possessed of the property but she

          must have acquired the property. Such acquisition must be either

          by way of inheritance or devise, or at a partition or "in lieu of

          maintenance or arrears of maintenance" or by gift or by her own

          skill or exertion, or by purchase or by prescription. In the present

          matter, it is nobody's case that Manki had got possession of the

          1/4th share in lieu of maintenance or in arrears of maintenance. It

          was also not their case that there was a partition of the property

          and that in such partition, she had been given the property. A


          mere right of maintenance without actual acquisition in any

          manner is not sufficient to attract Section 14."



As far as the present case is concerned, the plaintiff has no

case that Kalikutty had acquired any right in the property by

way of inheritance or devise, or at a partition or "in lieu of

maintenance or arrears of maintenance" or by gift or her own

skill or exertion or by purchase or by prescription. As such, it

cannot be held that Kalikutty had limited interest in the

property within the meaning of Section 14 of the Hindu

Succession Act.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                    PRESENT:

                   THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

           THURSDAY, THE 7TH DAYOF JANUARY 2016

                                              SA.No. 357 of 2003
                                       

            VASUDEVAN,
           Vs
           DEVAKAY,
             Citation: AIR 2016 (NOC) 442 Kerala

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Whether wife of brother of deceased husband of widow is entitled to succeed to her property as agnate?

 Mr. Mankapure, faced with this position, faintly urged that Sonabai did not qualify as 'agnate' within the meaning assigned to this term under Section 3(1)(a) of the said Act, since according to him, Sonabai was not related to her husband Shivba 'by blood'. This contention, however, is no longer res integra. The Division Bench of this Court, in case of Nanasaheb Devre (supra), has precisely considered and rejected such contention.

24. The Division Bench of this Court in case of Nanasaheb Devre (supra), has held that the provisions of said Act were meant to codify the law relating to intestate succession among the Hindus and to achieve uniformity and certainty about various otherwise nebulous and shifting matters. This objective has, however, to be understood against the backdrop of existing interpreting system of personal law. Therefore, it would not be appropriate to begin with any legislative premise that the term related "by blood" has been introduced in any narrow sense. Rather, effort will have to be made to reach its applicative connotation. By reference to several precedents and principles, the Division Bench has held that conceptually, the Hindu marriage, as far as the wife is concerned, clearly brings out consanguine results, the wife merging and sharing the particles of the body of her husband and as such that of their common ancestor. Such kinship or consanguinity conceptually as well as physically cannot be less than of the blood relationship. Marriage is not only social but religious fact to a Hindu. It distinctively brings about union of two persons involving acceptance of a female into the family of the male spouse. Relation that ensues, is not restricted to male that marries but to the entire family of the male. Married wife in a family, thus becomes related to it wholly through her male spouse. The definition of the word "related" shows that to be related, persons could be treated as related to each other only if they belong to lawful or legitimate kinship. The definition makes reference to "kinship". The accepted modes by which such kinship results are clearly implied. Kinship is blood relationship. In social unit like family, marriage is an apparent mode of forging such relation. As far as the definition of "agnate" is concerned, the statute contemplates that this relationship should arise firstly, "by blood or adoption", and secondly, wholly through males. The words employed by the defining clauses having reference to blood will have to be understood and interpreted so as to further the obvious object of the Act and as far as possible to provide uniform system of succession. Law is not merely a biological text tracing decent and ascent. It is a sociological sanction in favour of those who can claim succession to the deceased. Sociology and history of given law often speak through the legislated words. The choice of the words "by blood" in the definition along with the word "adoption" is clearly intended to recognise all social modes resulting in the legitimate relationship. The words "by blood" cannot be read as "by birth" so as to restrict them to genetical incidence of family, for legislature, had it intended, would have surely spoken in that way.

25. The Division Bench of this Court at paragraph '17' has observed thus:

17 What then is the meaning of the word blood ? Does it signify only the vital fluid that sustains the life or is it also indicative of relationship which results in kinship by known and accepted modalities ? There are various meanings assigned to the word "blood", including the one biologically attributed. From Webster's Third new International Dictionary, pages 236 and 237, the following relevant meanings can be extracted :

"Blood" : 1 a. the fluid that circulates in the principal vascular system of vertebrate animals carrying nourishment and oxygen to all parts of the body and bringing away waste products for excretion and that consists of a liquid plasma containing dissolved nutrients, waste products and other substances and suspended red blood cells, leukocytes, and blood platelets-see CIRCULATION, RESPIRATION; COAGULATI-ON;
2a. blood regarded as a vital principle :LIFEBLOOD; broadly: LIFE, b : human blood regarded as a hereditary differentiating factor typical of and specific to a given family, stock lineage, or race (English-) : esp : the national royal-used with the (a prince of the-), c : the whole body of physical traits passed from parent to offspring whether in men, animals, or plant; d : relationship by decent from a common ancestor (the Delaware grape shows a strong strain or vinifera) : KIN-SHIP CONSANGUINITY (-is thicker than water), e : person related through a common familial or racial descent : KINDRED, LINEAGE, STOCK, RACE; also, obs. : KINSMAN, RELATIVE.
The connotation of the word, therefore, is not merely biological but includes familial, racial and other recognised modes of kinship amongst men. It is futile to submit that the words related by blood should be equated with related by birth, though birth may be the primary incident of relationship between the two human beings. That is, however, of the only incident that brings about human relations into existence. When community of men develops and social relationship evolves, manifold relations come into being and in the context of relations, when the word blood is used, it suitably indicates the relationship by descent from a common ancestor or a kinship or consanguinity amongst a recognised social group. Marriage is an acknowledged social form bringing two beings together amongst the society of Hindus as a result of which the female enters the family of the male and becomes kindred of the family of the male and as such gets related as a kin of that family having common ancestor in the husbands family. The term by blood, therefore, in our view, has no biological or genetic limitation, but, including that, has a wider reach in the context of the personal law of Hindus and takes in female that enters by marriage the family of the male. Only because after the words by blood, the Legislature has put the words or adoption, thus indicating another legal form by which a person becomes the kin in the family, it is not possible to exclude the marriage from the connotation of the term "by blood". To have the relationship of the kind of agnate, it follows that relationship should arise wholly through males and should be a relationship of blood. As we have indicated, even prior to the present enactment, the applicative law held that as a result of marriage, a widow truly became gotraja sapinda in her husband's family. The principle on the basis of which the applicative judgments were rendered was clearly the principle to hold that by marriage the wife shared the community of the common particles of the body and was as such a relative by blood.

26. Applying the aforesaid principles, submission of Mr. Mankapure that Sonabai or her legal representatives could not be included within the expression 'agnate' cannot be accepted. The first substantial question of law, will also have to be decided against the Appellants-Petitioners.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 532 of 1988 and Second Appeal No. 567 of 2005

Decided On: 10.12.2015

Appellants: Mahadev S. More and Ors.
Vs.
Respondent: Sukhdeo S. More and Ors.

Hon'ble Judges/Coram:M.S. Sonak, J.

Citation:2016(2) MHLJ 341 Bom,AIR 2016 Bom 151

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UK High Court's Judgment on Modern Perspective of Donatio Mortis Causa

There are three requirements to constitute a valid DMC. They are:

i) Donor contemplates his impending death.
ii) Donor makes a gift which will only take effect if and when his contemplated death occurs. Until then Donor has the right to revoke the gift.
iii) Donor delivers dominion over the subject matter of the gift to Recipient.

As many judges have observed, the doctrine of DMC (Donatio Mortis Causa) in the context of English law is an anomaly. It enables Donor to transfer property upon his death without complying with any of the formalities of section 9 of the Wills Act or section 52 of the Law of Property Act. Thus the doctrine paves the way for all of the abuses which those statutes are intended to prevent.The Lord Chancellor in Jones v Selby and Lord Chelmsford in Cosnahan drew attention to this risk. They stressed the need for the strictest scrutiny of the factual evidence. The Court of Appeal rightly stressed in Birch that the courts must not allow DMC to be used as a device in order to validate ineffective wills.

Neutral Citation Number: [2015] EWCA Civ 581
		Case No: A3/2014/2704

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, CHANCERY DIVISION
MR HOLLANDER QC, SITTING AS A DEPUTY HIGH COURT JUDGE
HC12E03256

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/06/2015

B e f o r e :
LORD JUSTICE JACKSON
LORD JUSTICE PATTEN
and
LORD JUSTICE SALES
____________________
Between:

	KENNETH PAUL KING	Claimant/ Respondent
	- and -
	(1) THE CHILTERN DOG RESCUE (2) REDWINGS HORSE SANCTUARY	Defendants/Appellants

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Whether exclusion of natural legal heirs from inheritance is suspicious circumstance surrounding execution of Will?

 I do not find any substance in the contentions raised by the learned counsel for the appellant-defendant no.3. Defendant no. 3 has based his claim on the basis of the Will dated 06.10.1998(Ex.DW6/A/DW7/1). This is an admitted fact that the original Will was not produced in the Court. So, the original Will has not seen the day of the light. Only, the certified copy thereof has been produced in evidence by defendant no.3. No explanation has been given by the appellant as to why the original Will was not produced in evidence. It is also an admitted fact that no permission was taken by defendant no.3 to lead the secondary evidence to produce the certified copy of the Will dated 06.10.1998. Thus, the non production of the original Will raises the adverse inference against defendant no.3-appellant.

The learned First Appellate Court has categorically mentioned that DW-7 Kishan Chand Yadav, the scribe cannot be considered to be the attesting witness and legally no fault can be found with these observations of the learned First Appellate Court. DW-8 Rajesh, the attesting witness of the Will has been a tenant of the beneficiary for the last more than 25 years. His presence at the time of execution of the Will is seriously suspected as he could not tell as to whether the Will was written by the deed writer in his own hand writing or was got typed by him. DW-9 Sube Singh is also not the attesting witness of the Will. He has examined simply to identify the signatures of his brother Jagdish, another witness of the Will.

The learned First Appellate Court has also narrated the suspicious circumstances surrounding the Will dated 06.10.1998 that no reason has been given by the testator as to why the other natural legal heirs were excluded from inheritance. It was also found from the evidence on record that Sardar Singh was not on good speaking terms with defendant no.3. He has misused the power of attorney earlier executed by deceased Sardar Singh in favour of defendant no.3 and executed the lease deed of the land owned by Sardar Singh in favour of his wife. Due to which Sardar Singh has got canceled his power of attorney. In these circumstances, it was not plausible that Sardar Singh  would have executed the Will in favour of defendant no. 3 Jai Singh- appellant. Mere, this fact that said Will is registered, is no ground to establish the valid execution of the Will. Thus, I do not find any infirmity in the findings recorded by the learned First Appellate Court.

Punjab-Haryana High Court

Jai Singh vs Pavitra Devi & Ors on 7 January, 2016

CM No. 75-C of 2016 in/and R.S.A No. 31 of 2016 (O&M)       
CORAM : HON'BLE MR. JUSTICE DARSHAN SINGH

Citation;AIR 2016(NOC) 276 P&H

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Judgment of Supreme Court Of Queensland on interpretation of will

The principles of construction governing the approach to be taken by the court on an
application such as this are of long-standing. The object is to discover the testator’s
intention through examination of the words used in the will.2 To do so, regard is had to
the rules of construction traditionally applied by the courts and the aids to construction
contained in s 33C of the Succession Act 1981 (Qld).3
[4] At the heart of this interpretative exercise is the consideration of the usual meaning of the
language used in the testamentary provision in question, and this is to be done in light of
the will read as a whole.4
If the meaning of the provision is clear, the will shall be given
that construction.5 However, in determining what a testator meant by the words used in
the will, the court may receive evidence under the “armchair rule” so as to place itself in
the position of the testator at the time when the will was made. In this way, the court can
take account of the material circumstances which were known (or ought to have been
known) by the testator at the time when he or she used the words contained in the will.
The rationale for the rule is to be found in the proposition that “the meaning of words
varies according to the circumstances of and concerning which they are used”6
and,
because of that, the court is often assisted by establishing the context in which the
testamentary intentions were expressed. Importantly, such a rule applies where those
intentions appear, on a plain reading of the will, to be clear as well as in circumstances
where s 33C of the Act applies.Section 33C applies where the language used in the will, or part of it, is: (1) meaningless;
(2) ambiguous on the face of the will; or (3) ambiguous in the light of surrounding
circumstances. The provision does not prevent the admission of evidence that would
otherwise be admissible in a proceeding to interpret a will,8
but it makes clear that the
court may have regard to extrinsic evidence to help in the interpretation of language which
may be characterised in one of the three ways to which I have just referred. Where the
language is meaningless or ambiguous on the face of the will, such extrinsic evidence can
include evidence of the testator’s intention but, where the language is considered to be
ambiguous in the light of surrounding circumstances, evidence of the testator’s intention
is not admissible to establish any of those circumstances.
[6] The court is bound to construe the will “as trained legal minds would do”.9 That, however,
is not to say that the will must be construed in a strictly technical or legalistic sense; its
As to which, see Smith at 32-33, [24]-[25] per Atkinson J.
9 Ralph v Carrick (1879) 11 Ch D 873 at 878 per Cotton LJ; cited with approval by Isaacs J in Fell at 273.4
construction should be “sensitive to the factual context of ordinary life and
circumstances”.10 Further, the court should lean towards a construction which preserves,
rather than destroys, its effect.11 If the will shows that the testator must necessarily have
intended that an interest be given but there are no words in the will which expressly have
that effect, the court is to “supply the defect by implication, and thus to mould the
language of the testator, so as to carry into effect, as far as possible, the intention which
it is of opinion that the testator has on the whole will, sufficiently declared”.
12 But, as to
this, the court will not give effect to any intention which is “not expressed or plainly
implied”13 in the language of the will; there is no room for “gratuitous, groundless,
fanciful implication”.14 On the other hand, if the contents of a will show that a word has
been “undesignedly omitted or undesignedly inserted, and demonstrate what addition by
construction or what rejection by construction will fulfil the intention with which the
document was written, the addition or rejection will by construction be made”.15
Background
SUPREME COURT OF QUEENSLAND
CITATION: Suthers & Anor v Suthers & Ors [2015] QSC 285
PARTIES: ANDREA SUTHERS and ANTHONY DAVID
SUTHERS (as executors of the Will of JESSIE ANNIE
SUTHERS)
(applicants)
v
ANDREA SUTHERS and ANTHONY DAVID
SUTHERS and RODERICK JOHN SUTHERS
(as beneficiaries under the Will of JESSIE ANNIE
SUTHERS)
(respondents)
FILE NO/S: SC 7638 of 2015
DIVISION: Trial Division
PROCEEDING: Application
ORIGINATING
COURT:
Supreme Court at Brisbane
DELIVERED ON: 14 October 2015
DELIVERED AT: Brisbane

JUDGE: Burns J
Read full judgment here; Click here

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