Chapter 2

Definitions and interpretation:

Adoption

According to Black1 adoption is the statutory process of terminating a child's legal rights and duties toward the natural parents and substituting similar rights and duties towards adoptive parents.

Ancestor

The word 'ancestor' in its ordinary meaning includes an ascendant in the maternal, as well as the paternal, line; but the 'ancestral' estate in which under the Hindu law, a son acquires jointly with his father an interest by birth must be confined, as shown by the original text of the Mitakshara, to the property descending to the father from his male ancestor in the male line. Hence the estate, which is inherited by father from his maternal grandfather, cannot be held to be ancestral property in which his son has an interest jointly with him.2

Ancestral debt

In the case of a father manager, even if the debts are not for the benefit of the family, they are binding on the members of the family if they are antecedent debts which are not tainted by illegality or immorality. The debt incurred by brother manager will stand on a different plane from the debts incurred by a father manager, but only to this limited extent, namely, in the case of a brother manager, the debts have to be for the benefit of the family before they are said to be binding on the other members of the family. But for that, there is no other difference between the two sets of debts.3

Ancestral property

If a person inherits property, whether movable or immovable, from his father or father's father, father's father's father, it is ancestral property as regards his male issue. If a person has no son, son's son, or son's son's son, in existence at the time when he inherits the property, he holds the property as absolute owner thereof, and he can deal with it as he pleases…… A person inheriting property from his three immediate paternal ancestors holds it and must hold it, in coparcenary with his sons, son's son and son's son's son, but as regards other relations, he holds it and is entitled to hold it, as his absolute property.4

The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession.5

In respect of ancestral immovable property in the hands of any individual, there exists some sort of residuary interest in all the descendants of the first owner, or body of owners, however, remote and contingent may be the probability of some amount such descendants ever having the enjoyment of the property.6 The word 'ancestor' in its ordinary meaning includes an ascendant in the maternal, as well as the paternal, line; but the 'ancestral' estate in which under the Hindu law, a son acquires jointly with his father an interest by birth must be confined, as shown by the original text of the Mitakshara, to the property descending to the father from his male ancestor in the male line. Hence the estate, which is inherited by father from his maternal grandfather, cannot be held to be ancestral property in which his son has an interest jointly with him.7 A decree against the father does not of its own force create a mortgage binding on the son's interest.8 But If the debts have been contracted by the father and they are not immoral or irreligious, the interest of the sons in the coparcenary property can always be made liable for such debts.9 Therefore the father in a joint Hindu family may sell or mortgage the joint family property including sons' interest therein to discharge a debt contracted by him for his own personal benefit and such alienation binds the sons provided (a) the debt was antecedent to the alienation, and (b) it was not incurred for an immoral purpose.10

It is an erroneous view to take that merely because the possession by the common ancestor itself is not shown in the revenue records but that of a more remote direct ancestor is, it is non-ancestral even though the history of the land gives no indication of its acquisition by the descendants except by inheritance. Where land has been consolidated and in lieu of ancestral lands and non-ancestral land a consolidated area is given to a proprietor then such of the portion of the consolidated area which corresponds to the area of land which was ancestral will be ancestral land.11

When the father obtains the grandfather's property by way of gift, he receives it not because he is a son or has any legal right to such property but because his father chose to bestow a favour on him which he could have bestowed on any other person as well. The interest which he takes in such property must depend upon the will of the grantor. To find out whether a property is or is not ancestral in the hands of a particular person, not merely the relationship between the original and the present holder but the mode of transmission also must be looked to; and the property can ordinarily be reckoned as ancestral only if the present holder has got it by virtue of his being a son or descendant of the original owner. There is no warrant for saying that according to the Mitakshara, an affectionate gift by the father to the son constitutes ipso facto ancestral property in the hands of the donee.12 Therefore the property gifted by father cannot be treated as ancestral property.13

In case of devolution of property of maternal grand-father it was held that under the customary law of Punjab, the property is not ancestral property in the hands of the son of the beneficiary.14 Similarly Gift of property by maternal uncle to mother does not constitute ancestral property in the hands of children.15

The son has a right by birth in his father's and grand-father's estate but this is subject to a distinction made, namely, in the ancestral or grandfather's property in the hands of the father, the son has equal rights with his father; while in the self-acquired property of the father, his rights are unequal by reason of the father having an independent power over or predominant interest in the same. The ancestral property is one in which the son can assert an equal right with the father only when the grand-father's property has devolved on his father.16

Where throughout representation was that the property was self acquired by a member of a joint family from his own skill it was held that the property is not ancestral property.17

Antecedent debt

Antecedent debt means antecedent in fact as well as in time, that is to say, that the debt must be truly independent of and not part of the transactions impeached. The debt may be a debt incurred in connection with a trade started by the father. The father alone can alienate the sons' share in the case of a joint family. The privilege of alienating the whole of the joint family property for payment of an antecedent debt is the privilege only of the father, grandfather and great-grandfather qua the son or grandson only. No other person has any such privilege.18

Whatever may be the position under the English law, the theory of extinction does not exactly describe the position which arises on the death of a member of a Mitakshare joint family. The result of a long course of decisions is that certain legal acts continue to operate on the interest of the deceased member even when what is ordinarily spoken of as the rule of survivorship is taking effect. Thus, if a creditor obtains a decree against a member of a joint family and during the latter's life-time attaches his undivided interest in the family property, the creditor will be entitled to proceed against that interest to the extent necessary for the satisfaction of his claim even after the property has survived to the other members by reason of the death of the judgement-debtor. In some of the Provinces there have also been decisions recognising a right of voluntary alienation in each joint owner, in respect of his undivided share, when the alienation is for value; and, if in this part of the country a member creates a mortgage over his undivided share, such mortgage has been held to be operative even after the death of the mortgagor. According to several decisions of the Madras High Court, the alienation by a member of his undivided share does not disrupt the joint status and yet the rights of the purchaser have been held not to be defeated by the death of the alienor, though no suit for partition be instituted during his life-time. Results of this kind are wholly inconsistent with the theory of extinction or lapse, and even more so when the deceased happens to be the father of the survivors. It was recognised as early as in 188619 , that the application of the theory of the son's "pious obligation" to pay the father's debts has practically resulted in the pro tanto extinction of the son's independent rights in the family and Section 53 of the Civil Procedure Code provided that to the extent to which joint family property remained liable for the father's personal debts even after his death, it "shall be deemed to be property which has come to the hands of the son as his legal representative".20

Avyavaharika debt

Avyavaharika debt has been variously translated as being that which is not lawful or what is not just or what is not admissible under the law or under normal conditions. Colebrooke translated it as a debt for a cause repugnant to good morals. There is another track of decision which has translated it as meaning a debt which is not supported as valid by legal arguments. The term as given by Colebrooke makes the nearest approach to the true conception of the term used in the 'Smrithis' texts and may well be taken to represent its correct meaning and that it did not admit of a more precise definition.21

Caste

The status has to be determined on the basis of the recognition received by him from the members of the caste into which he seeks his entry as a member.22

A progeny of Hindu parents who converted to another religion, reconverting to Hinduism, could revive his parents' caste before their conversion, provided the intention of the progeny for conversion is a genuine one by abjuring his new religion and completely disassociating from it.23 But on conversion to Hinduism, a person born of Christian converts would not become a members of the caste to which his parents belonged prior to their conversion to Christianity, automatically or a matter of course, but he would become such member if the other members of the caste accept him as a member and admit him within the fold.24

Ceremonial marriage

According to Black25 a wedding that follows all the statutory requirements and that has been solemnized before a religious or civil official.

Civil marriage

According to Black26 a wedding ceremony conducted by an official, such as a judge, or by some other authorized person — as distinguished from one solemnized by a member of the clergy.

Co-owner

A person who is in concurrent ownership, possession, and enjoyment of property wit one or more others; a tenant in common, a joint tenant, or a tenant by the entitrety.27

Coparcenary

An estate that arises when two or more persons jointly inherit from one ancestor, the title and right of possession being shared equally by all. Coparcenary was a form of co-ownership created y common-law rules of descent upon intestacy when two or more persons together constituted the decedent's heir. Typically, this situation arose when the decedent was survived by no sons but by two or more daughters, so that the daughters took as coparcners. — Also termed parcenary; tenancy in coparcenary.28

Coparcener

A person to whom an estate descends jointly, and who hold it as an entire estate. — Also termed parcener.29

But sometimes two or more persons together constituted the heir, and in this case they took the land as 'parceners' or 'coparceners,' the latter expression being the more common……In theory of law coparceners together constituted a single heir: 'they be but one heir, and yet several persons.' They were called parceners because, as already seen, every coparcener had a common law right to have a partition made.30

Coparcenary in India is a creature of Hindu law. The concept involves community of interest, unity of possession and common enjoyment. Each coparceners right extends to the whole family property; though each one of them has interest in the whole family property, he has no definite share therein.31

Coparcenary under Mithakhra Law is creature of law and it cannot be treated as individual. It is a body of individuals treated as such even though it is not an incorporated body and unless a definition includes unincorporated body of individual it does not fall with in the meaning of expression 'person'.32

Damdupat

According to the principle of damdupat the principal amount can only be doubled by length of time after which interest ceases and is not levied. But where interest is awarded on equitable grounds, the principle of Damdupat has no application on such interest.33

Decree and judgement

The concept of divorce existed even in Roman times and was certainly accepted by the Quran. However, it was unknown to Hindu Law and it was also unknown to Christian Law. A decree of divorce was originally granted by the Pope in the form of divorce a vinculo matrimonii. No Court whatsoever, either Civil or Criminal or Ecclesiastical could grant such a decree. King Henry VIII of England was anxious to divorce his wife who was the sister of the King of Spain. The Pope refused to oblige him, so Henry was forced to form his own Church called the Church of England and was able to get a divorce to marry Anne Boleyn. This divorce eventually led historically to the concept of the Ecclesiastical Courts granting a divorce which was generally known as a divorce a mensa et thero. For a long time in English legal history, a divorce could only be granted by the Ecclesiastical Courts and not by the ordinary Courts. The form of the divorce was a decree. The ordinary English Courts gave their decisions through Judgements, but there was no decree as is understood in Indian Law. The decision of the Court operated as enforceable decree. Even the Letters Patent issued by the King to create the Indian High Courts used the word ''judgement'' and not the word ''decree'' Thus, it was a matter of historical evolution that the term decree was used in matrimonial decisions recorded by the Church; the 'decree' was a kind of edict, whereas the Civil Courts used the term 'judgement'. When the English legal system was reformed and the jurisdiction to deal with matrimonial cases was withdrawn from the Ecclesiastical Courts and given to the ordinary Civil Courts for historical reasons, the term 'decree' continued to prevail as far as divorces and judicial separations were concerned. When a person approached the Matrimonial Courts, what he sought was a decree for divorce or nullity etc. if he got such a decree, the marriage came to an end. If he failed to get such a decree, then the marriage subsisted.34

Estate

According to Black35 estate is defined as under:

1. The amount, degree, nature, and quality or a person's interest in land or other property.

2. All that a person or entity owns, including both real and personal property.

3. The property that one leaves after death; the collective assets and liabilities of a dead person.

4. A tract of land, esp. one affected by an easement.

Family

According to Black36 family is defined as under:

1. A group consisting of parents and their children. — Also termed immediate family.

2. A group of persons connected by blood, by affinity, or by law.

3. A group of persons, usu. Relatives, who live together.

The word family in the context of the family arrangement is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute.37

Family always signifies a group, Plurality of persons is an essential attribute of a family. A single person, male or female, does not constitute a family. He or she would remain, what is inherent in the very nature of things, an individual, a lonely wayfarer till perchance he or she finds a mate. A family consisting of a single individual is a contradiction in terms.38

Family arrangement

To consider a settlement as a family arrangement, it is not necessary that the parties to the compromise should all belong to one family. The word family in the context of the family arrangement is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. If the dispute which is settled is one between near relations then the settlement of such a dispute can be considered as a family arrangement.39

The basis of all compromises and family settlement is the existence of doubtful claims or semblance of claim of the parties concerned in respect of the properties in dispute. The motive for settlement is to settle the existing disputes or anticipated disputes, which are likely to arise in future and to secure peace to the family so that the properties in dispute and the family concerned may not be ruined. The anticipated dispute must be real and not imaginary. The end is secured by settlement amongst the parties by resolving the conflicting claims by the process of giving and taking, which is the consideration of the compromise or family settlement. In all compromises, there is none, no compromise would be valid. 40

Dictionaries have proved the meaning of ''settlement'' as: 'the terms of which property is given to a person'. A 'settlement', the worst or the best which can be put upon the consequences of the settlement could be an agreement or arrangement between the parties for the benefit of the owners perhaps, with some responsibilities to some of the parties.41

Nomenclature of document is not relevant to decide it a document is a family settlement. A Gift with the condition that donee will forego his right of inheritance is a family arrangement.42

A family settlement in a concretised form, may be reduced into the form of the following propositions43 :

(1) The family settlement must be a bona fide one so as to resolve a fair and equitable division or allotment of properties between the various members of the family;

(2) The said settlement must be voluntary and should not be induced by fraud coercion or undue influence;

(3) The family arrangements may be even oral in which case no registration is necessary;44

(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17 the Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claim or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld, and the Courts will find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, which may not involve legal claim are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.45

Even if the family arrangements was not registered, it could be used for collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement and for the purpose of applying the rule of estoppel which flowed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement.46

The parties to a settlement need not establish any pre-existing right in the property to validate the family settlement.47

The members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. However, the family arrangement may be oral or it may be in writing but before a family arrangement can be held to be a binding one, it should be voluntary one and should not be induced by fraud, coercion and undue influence.48

Estoppel is rule of evidence which prevents a party from alleging and proving the truth. It is a rule underlying many branches of the law which precludes a person who, will full knowledge of his rights, has once elected to assent to a transaction voidable at his instance and has thus elected not to exercise his right to avoid it, from going back on that and avoiding it at a later stage. Having made his election he is bound by it.49

A plea of estoppel can be invoked only in support of or to maintain a family arrangement where the court finds that the parties should not be allowed to resile from a particular arrangement under which they have taken some benefit. If for some grounds which are not 'frivolous or untenable' the court finds that a party is entitled to re-open the arrangement or establishes that the continued enforcement of the family arrangement is wholly impracticable, unnecessary and unjust in the changed circumstances of the case, as has been established in this case, there is no question of applying the equitable principle of estoppel and holding any of the parties to such restrictive provisions in a family arrangement. This is especially so in the case of family arrangements intended to have application only for a limited time or purpose in contrast to family arrangements entered into for the purpose of effecting out and out partition, gift etc. In any case, the courts will not accept such a plea of estoppel put forward in defence by a party who has himself gone against the very same provisions which he wants the court to enforce strictly against the other party or parties.50

Where the plaintiff, who is 'in titulo' now that the succession has opened out, unequivocally assented to the arrangement with full knowledge of the facts and accepted benefit under it, therefore, he is now precluded from avoiding it, and any attempts he made to go behind that assent when it suited his purpose cannot render the assent once given nugatory even though it was given when he was not 'in titulo; and even though the assent was to a series of gifts.51

A settlement is not binding upon the persons who are not parties to it.52

Courts have laid emphasis on:

(1) existence of disputes as against intention to avoid future disputes;

(2) the tribunal or forum so chosen is intended to act judicially after taking into account relevant evidence before it and the submissions made by the parties before it; and

(3) the decision is intended to bind the parties. Nomenclature used by the parties may not be conclusive. One must examine the true intent and purport of the agreement. There are, of course, the statutory requirements of a written agreement, existing or future disputes and an intention to refer them to arbitration.

Where Memorandum of Understanding has been substantially acted upon and the hence the parties must be held to the settlement which is in the interest of the family and which avoids disputes between the members of the family. Such settlement have to be viewed a little differently from ordinary contracts and their internal mechanism for working out the settlement should not be lightly disturbed.53 The court will lean towards upholding the family settlement as it is intended to bring about family peace and to avoid future disputes which may ruin the family. But while determining whether a particular transaction is a family settlement or not, it is necessary to bear in mind whether the settlement entered into by the parties concerned is bona fide settlement of conflicting claims of the parties. It is not for the court to determine whether at the time of the settlement the parties have antecedent title or not. It is sufficient that the parties asserted some kind of antecedent title or semblance of title.54

Where a partition is made on the basis of valuation given in the deed of arrangement, itself the valuation can neither be called baseless nor the arrangement be challenged as inequitable.55

A family arrangement which is for the benefit of the family generally can be enforced in a court of law. But before the court would do so, it must be shown that there was an occasion for effecting a family arrangement and that it was acted upon.56 But an undertaking to pay without any consideration, is not binding but the other terms constituting family arrangement are enforceable.57

A compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resides in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary. But the principle can be carried further and so strongly do the Courts bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present. But in that event, the formalities of law about the passing of title by transfer would have to be observed.58

Hindu

A child born in India is presumed to have his father's religion and his corresponding civil and social status. A person born from Hindu father can validly be a member of Hindu Undivided Family headed by his father.59

A person may be a Hindu by birth or by conversion. A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism. But a bona fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiation is necessary to effectuate conversion.60

A declaration of one's belief must necessarily mean a declaration is such a way that it would be known to those whom it may interest. Therefore, if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion he will be taken as professing the other religion. In the face of such an open declaration it would be idle to enquire further as to whether the conversion to another religion was efficacious.61

When a person embraces Christianity, he loses the membership of the Adi Dravida Hindu caste. The Christian religion does not recognize any caste classifications. All Christians are treated as equals and there is no distinction between the Christian and another of the type that is recognized between members of different castes belonging to Hindu religion. In fact, caste system prevails only amongst Hindus or possibly in some religious closely allied to the Hindu religion like Sikhism. Christianity is prevalent not only in India, but almost all over the world and nowhere does Christianity recognise caste division. The tenets of Christianity militate against persons professing Christian faith being divided or discriminated on the basis of any such classification as the caste system. Therefore on conversion to Christianity he ceased to belong to the Adi Dravida caste and, consequently, the burden lay on the him to establish that, on his reverting to the Hindu religion by professing it again, he also became once again a member of the Adi Dravida Hindu caste.62

In order to prove that the parties have become 'sufficiently Hinduised' and/or 'out and out Hinduised' it was necessary for the plaintiff to show that the family and/or others of the village and/or neighbouring villages have adopted Hindu religion and have been following all the rites and customs normally followed by Hindus.63

When a Hindu male marry Christian female, both the persons become Hindus to form a coparcenary as there is no prohibition on inter-religion marriage.64

Conversion of a Hindu wife to Islam does not ipso facto dissolve the marriage tie with her husband. She continues to be his wife in spite of her conversion until and unless the Court passes the decree of divorce. Even then the wife is not disentitled to maintenance.65

Hindu undivided family

The expression Hindu undivided family has not been statutorily defined. The reason for the omission evidently is that the expression has a well-known connotation under the Hindu law and for this reason the Legislature did not want to define the expression. The expression Hindu undivided family is, therefore, to be construed in the sense in which it is understood under the Hindu law.66

Husband

According to Black67 a husband is a married man; a man who has a lawful wife living. Etymologically, the word signified the house bond, the man who, according to Saxon ideas and institutions, held around him the family, for which he legally responsible.

Marriage

According to Black68 marriage is defined as the legal union of a man and woman as husband and wife. Although the common law regarded marriage as a civil contract, it is more properly the civil status or relationship existing between a man and a woman who agree to and do live together as spouses. The essentials of a valid marriage are (1) parties legally capable of contracting marriage, (2) mutual consent or agreement, and (3) an actual contracting in the form prescribed by law.

Lineal

The expression 'lineal' is defined as "in a direct line". Therefore a Lineal descent would be as from father or grandfather to son or grandson.69

Lingayat

Lingayats are Dravidian, that is to say, they belong to a stock that was established in India before the arrival of the Aryans. Of the Brahamanic triad - Brahma, Visnu and Siva they acknowledge only the God Siva, whose emblem, the linga, they bear on their persons, All wearers of the linga were proclaimed equal in the eves of God. The traditional Lingayat teacher is Basava. The denial of the supremacy of the Brahamans, coupled with the assertion of the essential equality of all men, constituted a vital departure from the doctrines of orthodox Hinduism. Other important innovations were : the prohibition of child-marriage; the removal of all restriction on widows remarrying. The Lingayats appear to consist of three groups of sub-divisions viz.:

(1) Panchamsalis with full astavarna rites

(2) Non-Panchamsalis with astavarna rites

(3) Non-Panchamsalis without astavarana rites.

The astavarna or eightfold sacrament is a principal Lingayat ceremony. while describing the Lingayats marriage ceremony it goes on to say that the tying of the tali is the binding portion of the ceremony. Before the tali is given to the bridegroom, it is passed round the assembly to be touched by all and blessed . As soon as the bridegroom ties it on the bride, all those present throw over the pair a shower of rice. The bridegroom places some cummin seed and jagri or unrefined sugar, on the bride's head, and the bride does the same to the bridegroom.70

The Gazetteer of Bombay State, Dharwar District, 1959 contains a description of Lingayats marriage and the marriage rules. At page 138 it says: 'The Lingayats do not allow the children of brothers to intermarry, nor may sister's children. Marriage with a mother's sister's daughter is also prohibited. A man may marry his sister's daughter, but if the sister be a younger sister such marriage is looked on with disfavour. Widow marriage is allowed at the present day, except amongst Jangamas. Divorce is permissible. The chief feature of the actual marriage ceremony is the tying on of the mangalsutra ( bride's luck neck-thread), is performed by the bridegroom under the Jangama's discretion. The ceremony begins by the mathapati bowing to the mangalsutra, and proclaiming that it is about to be tied to the bride's neck. The bridegroom lays his right hand on the bride's right hand, the mathapati lays the lucky thread on the boy's hand. The teacher gives the order to tie on the lucky thread and the Bridegroom ties it on the girl's neck.'71

Minor

According to Black72 minor is a person who has not reached full legal age; a child or juvenile. — Also termed infant.

Owelty

While effecting such a partition it would not be possible to divide the properties by metes and bounds there being of necessity an allocation of properties of unequal values amongst the members of the joint family. Properties of a larger value might go to one member and properties of a smaller value to another and therefore there would have to be an adjustment of the values by providing for the payment by the former to the latter by way of equalisation of their shares. This position has been recognized in law and a provision for such payment is termed 'a provision for owelty or equality of partition.'73

Parent

According to Black74 a parent the lawful father or mother of someone. In ordinary usage, the term denotes more than responsibility for conception and birth. The term commonly include (1) either the natural father or the natural mother of a child, (2) the adoptive father or adoptive mother of a child, (3) a child's putative blood parent who has expressly acknowledged paternity, and (4) an individual or agency whose status as guardian has been established by judicial decree. In law, parental status base on any criterion may be terminated by judicial decreed.

Partition

According to Black75 partition is something that separates one part of a space from another. It is the act of dividing; esp., the division or real property held jointly or in common by tow or more persons into individually owned interests. A definitive partition is a partition that is irrevocable and provisional partition is a temporary partition, often made before the remainder of the property can be divided. The provisional partition is generally declared by a preliminary decree of the court in a suit for partition.

Partition is adjustment of the ownership of many persons in the aggregate wealth by assigning particular portions of the aggregate to a several ownership.76 Upon partition allocation of property taken on rent by joint family, to the share of a coparcener does not constitute a transfer of property.77

Partition is an act which brings about a change in the nature of ownership of the joint property and not a partition which brings about the mode of enjoyment of property. Decision of coparceners to enjoy the fruits of a particular property in a particular manner, by itself does not bring about a partition.78

Pious purpose

What is generally understood by "pious purposes" is gift for charitable and or religious purposes. But the Court has extended the meaning of "pious purposes" to cases where a Hindu father makes a gift within reasonable limits of immovable ancestral property to his daughter in fulfilment of an ante nuptial promise made on the occasion of the settlement of the terms of her marriage, and the same can also be done by the mother in case the father is dead.79

Property

The word 'property' is a term of the widest import and subject to any limitation which the context may require it signifies every possible interest which a person can acquire, hold or enjoy. A distinction should be drawn between a tenant continuing in possession after determination of the lease, without the consent of the landlord and a tenant doing so with the landlord's consent. The former is called a tenant by sufferance and the latter is a tenant holding over. A lessee holding over with the consent of the lessor is in a better position than a mere tenant at sufferance or a tenant at will. A tenancy by sufferance is converted into a tenancy at will by the assent of the landlord. Such assent may be expressed by acceptance of rent by the lessor from the lessee or otherwise assenting to his possession. Such assent after the determination of the tenancy would create new tenancy.80 Where rights of a lessee, in the leasehold property were fairly comprehensive besides the lease for a period of 35 years with an option of renewal for a further period of 35 years and the power to demolish the old structure and construct a new one, such right was a sufficient interest in the property.81 The words "property" as well as "interest in joint family property" are wide enough to cover agricultural lands.82

According to section 6 of Transfer of Property Act, 1882 'property of any kind may be transferred, except as otherwise provided by said Act or by any other law for the time being in force' which includes —

(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.

(b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to any one except the owner of the property affected thereby.

(c) An easement cannot be transferred apart from the dominant heritage.

(d) An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.

(dd) A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred.

(e) A mere right to sue cannot be transferred.

(f) A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable.

(g) Stipends allowed to military, naval, air force and civil pensioners of the Government and political pensions cannot be transferred.

(h) No transfer can be made (1) insofar as it is opposed to the nature of the interest affected thereby, or (2) for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872), or (3) to a person legally disqualified to be transferee.

(i) Nothing in this section shall be deemed to authorize a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Courts of Wards, to assign his interest as such tenant, farmer or lessee.'

However the provisions of this Act are applicable on all transfers except the transfers relating to 'immovable property'. The term 'immovable property' has been defined by section 3(26) of General Clauses Act, 1897 as:—

Immovable property shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.

According to section 3 of Transfer of Property Act, 1882 'immovable property' does not include standing timber, growing crops or grass.

These definitions are very widely worded and includes virtually a large number of things, transfer of which shall be out of the purview of this Act. Yet the definition is quite vague when compared to clause (d) of section 269UA of Income Tax Act, 1961, according to which—

(d) "immovable property" means—

(i) any land or any building or part of a building, and includes, where any land or any building or part of a building is to be transferred together with any machinery, plant, furniture, fittings or other things, such machinery, plant, furniture, fittings or other things also.

Explanation— For the purposes of this sub-clause, "land, building, part of a building, machinery, plant, furniture, fittings and other things" include any rights therein;

(ii) any rights in or with respect to any land or any building or a part of a building (whether or not including any machinery, plant, furniture, fittings or other things, therein) which has been constructed or which is to be constructed, accruing or arising from any transaction (whether by way of becoming a member of, or acquiring shares in, a co-operative society, company or other association of persons or by way of any agreement or any arrangement of whatever nature), not being a transaction by way of sale, exchange or lease of such land, building or part of a building;

Immovable property includes all that is real property under English Law and every interest in immovable property or a benefit arising out land is immovable property.83

Creation of an interest in immovable property or a right to possess it that distinguishes a lease from a licence. A licence does not create an interest in the property to which it relates while a lease does. There is in other words transfer of a right to enjoy the property in case of a lease.84 Right to hold bazaar on the land has been held to be an interest in land and therefore an integral part of immovable property.85

Similarly a right to carry on mining operations in land to extract a specified mineral and to remove and appropriate that mineral, is a 'right to enjoy immoveable property' and therefore is an interest in property.86 But an agreement not granting exclusive possession and control of the land but merely granting the right to pluck, cut, carry away and appropriate the forest produce that might have been existing at the time of the contract or which might have come into existence during the short period of the currency of the agreements. Such agreements possessed the characteristics of licences and did not amount to leases hence created no interest in the land. 87 Life interest is a fractional interest in property, falling short of the entire interest in it. It is a well-known species of property under many systems of law, ancient and modern.88 However reversioners interest in the limited estate succeeded by a Hindu widow is in the nature of spes successionis89 and so long as widow is alive no one has any vested interest in the succession.90

Section 3(26) of General Clauses Act, defines "immoveable property" as including benefits that arise out of the land. Transfer of Property Act does not defines the term except to say that immoveable property does not include standing timber, growing crops or grass. As fish do not come under the category the definition in the General Clauses Act applies and as a 'profit a pendre' is regarded as a benefit arising out of land it follows that it is immoveable property.91 It was reiterated that the right to catch and carry away the fish being a 'profit a prendre' i.e. a profit or benefit arising out of the land, it has to be regarded as immovable property.92

A right in any property could be extinguished even when the property ceases to exist. Therefore when a capital asset ceases, the right therein is also extinguished.93

Partnership

Whatever may be the character of the property which is brought in by the partners when the partnership is formed or which may be acquired in the course of the business of the partnership it becomes the property of the firm and what a partner is entitled to is his share of profit, if any, accruing to the partnership from the realisation of this property, and upon dissolution of the partnership to a share in the money representing the value of the property. No doubt, since a firm has no legal existence, the partnership property will vest in all the partners and in that sense every partner has an interest in the property of the partnership.94 However it has been held that the partner's share in partnership firm is in the nature of movable property and the instrument evidencing dissolution found to be in the nature of relinquishment of the interest in the firm which does not require registration.95

Relative

The provision in Section 16 of the Hindu Marriage Act provides that notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under the Act and whether or not the marriage is held to be void otherwise than on a petition under the Act. It has to be noted that by this provision what has been done is to give legitimacy to the children born to the parents whose marriage is null and void under the section by the use of a deeming provision. This only indicates that if a general term is used as children, son or daughters, the law can take into account only children born in lawful wedlock. Similarly, the word used relative by blood must be understood as a relative by blood through lawful wedlock.96

Religion

According to Black97 religion is a system of faith and worship usu. involving belief in a supreme being and usu. Containing a moral or ethical code; est., such a system recognized and practiced by a particular church, sect, or denomination. In construing the protections under the Establishment Clause and the Free Exercise Clause98 , American courts have interpreted the term religion quite broadly to include a wide variety of theistic and non-theistic beliefs.

Religious endowment

A dedication of property for a religious or a charitable purpose can, according to Hindu Law, be validly made orally and no writing is necessary to create an endowment except where it is created by a will. It can be made by a gift inter vivos or by a bequest or by a ceremonial or relinquishment. An appropriation of property for specific religious or charitable purposes is all that is necessary for a valid dedication.99

From very ancient times the sacred writings of the Hindus divided works productive of religious merit into two divisions named ishta and purta a classification which has come down to our times. So much so that the entire objects of Hindu endowments will be found included within the enumeration of ishta and purta works. In the Rig Veda ishtapurttam (sacrifices and charities) are described as the means of going to heaven. In commenting on the same passage Sayana explained ishtapurtta to denote "the gifts bestowed in srauta and smarka rites". In the Taittiriya Aranyaka, ishtapurtta occur in much the same sense and Sayana in commenting on the same explains ishta to denote "Vedic rites like Darsa, Purnamasa etc. and purta "to denote Smarkta works like tanks, wells etc." Tanks, wells with flights of steps, temples, the bestowing of foods, and groves — these are called purttam. Under Hindu Law a tank can be an object of charity and when a dedication is made in favour of a tank, the same is considered as a charitable institution.100

Although Courts in India have for a long time adopted the technical meaning of charitable trusts and charitable purposes which the Courts in England have placed upon the term 'charity' in the Statute of Elizabeth, and therefore, all purposes which according to English law are charitable will be charitable under Hindu law, the Hindu concept of charity is so comprehensive that there are other purposes in addition which are recognised as charitable purposes. Hence, what are purely religious purposes and what religious purposes will be charitable purposes must be decided according to Hindu notions and Hindu law.101

In the absence of any authority, textual or by way of a precedent, it can not be held that the dedication for 'akhara' or wrestling ground was for either a religious or charitable purpose as recognised by Hindu Law.102

Succession of trusteeship in the charitable trust is governed by ordinary rules of inheritance under Hindu Law.103

Succession

The expression inheritance only denotes property passing on death from the deceased to his heirs. But the expression succession might denote not only succession on the death of a person either by testate succession or by intestate succession, but also other modes of change of ownership inter vivos, as and when we say that there is a succession to a business when there is a mere transfer of the business as a going concern from one living proprietor to another. The expression devolution, however, is a term of widest import. It certainly includes a devolution or passing of property on the death of a person. But devolution of interest is not confined merely testamentary or intestate succession. Any process recognized by the law under which property changes hands from one owner to another even inter vivos, if it cannot altogether be regarded as a disposition, transfer or conveyance or succession or inheritance, must be regarded as a devolution. Devolution should denote not merely succession on death, but also a change of ownership from one living being or body, whether incorporated or not, to another living being or body, whether incorporated or not.104

Void marriage

According to Black105 a marriage that is invalid from its inception, that cannot be made valid, and that can be terminated by either party without obtaining a divorce or annulment. For example, a marriage is void if the parties are too closely related or if either party is already married.

Voidable marriage

According to Black106 a marriage that is initially invalid but that remains in effect unless terminated by court order. For example, a marriage is voidable if either party is underage or otherwise legally incompetent, or if one party used fraud, duress, or force to induce the other party to enter the marriage. The legal imperfection in such a marriage can be inquired into only during the lives of both spouses, in a proceeding to obtain a judgement declaring it void.

Widow's estate

The "woman's estate" under the Hindu Law is an anomalous conception created by a long course of decisions in an attempt to reconcile various conflicting interests.107 The definitive expression of women's estate and widow's estate' is the result of the Sastric law codified through judicial precedents. Thus the term 'women's estate' in its larger connotation means 'all property which has given to a woman by any means and from any source whatsoever and includes both properties in which she has absolute estate stridhana and property in which she has only a limited interest and the term is used in the context only later sense of property in which she takes only a limited or qualified interest. Such property is either property inherited by woman, or property which has been allotted to her in a partition in her husband's family.108

Such a property may be either inherited from a male or a female. To that generic expression 'woman's estate' the decree-holder qualifies within 'widow's estate'. The meaning and implication of 'widow's estate' can be thus read as hereunder:

'A widow or other limited heir is not a tenant-for-life, but is owner of the property inherited by her, subject to certain restrictions on alienation, and subject to its devolving upon the next heirs of the last full owner upon her death. The whole estate is for the time vested in her, and she represents it completely. As by Privy Council109 , her right is of the nature of a right of property; her position is that of owner; limited; but, so long as she is alive no one has any vested interest in the succession.'110