Chapter 3

Joint family and members

Introduction

The Mitakshara law of joint family is founded upon agnatic relationship: the undivided family is characterised by community of interest and unity of possession among persons descended from a common ancestor in the male line.111

A joint Hindu family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters and it may consist of a single male member and widows of deceased male members of unmarried daughters.112 But a Hindu coparcenery is a much narrower body than the Hindu joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenery property, these being the sons, grandsons and great-grandsons of the holders of the joint property for the time being.113 Coparcenary 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.114

In a Hindu Undivided Family, governed by the Mitakshara law, no individual member of that family, while it remains undivided, can predicate that he has a certain definite share in the property of the family. The rights of the co-parceners are defined where there is partition. The partition consists in defining the shares of the co-parceners in the joint property, actual division of the property by metes and bounds is not necessary to constitute partition. Once the shares are defined, whether by agreement between the parties or otherwise, the partition is complete. The parties may thereafter, choose to divide the property by metes and bound or may continue to live together and enjoy the property in common as before. If they live together, the mode of enjoyment alone remains joint, but not the tenure of the property.115

The expression 'Hindu undivided family' must be construed in the sense in which it is understood under the Hindu Law. A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property and these are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, that is to say, the three generations next to the holder in unbroken male descent. Since under the Mitakshara Law, the right to joint family property by birth is vested in the male issue only, females who come in only as heirs to obstructed heritage (sapratibandha day), cannot be coparceners. But we are concerned under the Income-tax Act with the question whether the appellant's wife and unmarried daughter can with him be members of a Hindu undivided family and not of a coparcenary.116

Admission

An admission by a party is substantive evidence of the fact admitted and admissions duly proved are admissible as evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to the admissions.117

It was held that it was not possible to hold the defendants were making admissions in income-tax and wealth-tax returns on the basis of which the assessment orders were made only to suit the convenience of plaintiff.118

Adopted members

Among the Hindus, a peculiar religious significance has attached to the son, through Brahminical influence, although in its origin the custom of adoption was perhaps purely secular. The texts of the Hindus are themselves instinct with this doctrine of religious significance. The foundation of the Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of the line and the solemnisation of the necessary rites.119

A person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity. It is also true that the evidence in proof of the adoption should be free from all suspicion of fraud and so consistent and probable as to give on occasion for doubting its truth. Nonetheless the fact of adoption must be proved in the same way as any other fact.120

An adoption may either be made by a man himself or by his widow on his behalf. The adoption is to the male and it is obvious that an unmarried woman cannot adopt. For the purpose of adoption is to ensure spiritual benefit for a man after his death by offering of obligations and rice and libations of water to the manes periodically. Woman having no spiritual needs to be satisfied was not allowed to adopt for herself. But in either case it is a condition precedent for a valid adoption that he should be without any male issue living at the time of adoption.121

For a valid adoption the physical act of giving and taking is an essential requisite, a ceremony imperative in all adoptions, whatever the caste. And this requisite is satisfied in its essence only by the actual delivery and acceptance of the boy, even though there exists an expression of consent of an executed deed of adoption. In some cases to complete the adoption a "datta homan" has be considered necessary but in the case of the twice-born classes no such ceremony is needed if the adopted boy belongs to the same gotra as the adoptive father.122

The ceremonies of giving and taking are absolutely necessary in all cases, these ceremonies must be accompanied by the actual delivery of child; symbolical or constructive delivery by the mere parol expression of intention on the part of the giver and the taker without the presence of the body is not sufficient. Nor are deeds of gift and acceptance executed and registered in anticipation of the intended adoption nor acknowledgment, sufficient by themselves to constitute legal adoption, in the absence of actual gift and acceptance accompanied by actual delivery; a formal ceremony being essential for that purpose.123

The giving and receiving are absolutely necessary to the validity of an adoption. They are the operative part of the ceremony, being that part of it which transfers the boy from one family into another. But the Hindu Law does not require that there shall be any particular form so far as giving and acceptance are concerned. For a valid adoption, all that the law requires is that the natural father shall be asked by the adoptive parent to give his son in adoption, and that the boy shall be handed over and taken for this purpose.124

Where witnesses proved giving and taking and adoption also proved by invitation card and school register etc. of the child, the adoption can be treated to have been proved.125

Under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to anther and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall handover the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it. The exigencies of the situation arising out of diverse circumstances necessitated the introduction of the doctrine of delegation; and, therefore, the parents, after exercising their volition to give and take the boy in adoption, army both or either of them delegation, may both or either of them delegate the physical act of handing over the boy or receiving him, as the case may be, to a third party.126

The law never contemplates that the adoption deed must be executed in writing and registered.127 It is not a deed compulsorily registerable under Section 17 of the Indian Registration Act. What is required to prove the valid adoption is the free consent of both the parents giving in adoption and free consent of both the parents in taking the child in adoption and actually the ceremony of the giving and taking the child in adoption and must be duly proved.128 But when neither any deed of gift and acceptance executed and registered nor deed of acknowledgement acknowledging adoption is sufficient by itself to constitute legal adoption in the absence of actual giving and taking. It is not a substitute for actual giving or taking. Omission of day or date of adoption in a deed of acknowledgement is very vital. Such a deed loses all its significance.129 Similarly by mere placing the document on the record without proving the ceremonies of due adoption, it cannot be held that there was a valid adoption.130

However another view is that whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.131 It has also been observed that a registered adoption deed raises a presumption of valid adoption. This presumption is rebuttable, no doubt, but not by mere conjectures or discrepancies in evidence of little or no consequence. It is the totality of the circumstances and the evidence on record that must be taken into account and weighed in deciding whether such presumption stands rebutted.132 Supreme Court has also taken similar view that 'The presumption on account of registered deed of adoption can always be rebutted on the basis of evidence adduced before the Court which would include oral evidence.'133

The act of giving consent by spindas is not a religious act; it is the act of a guardian or protector of a widow, who is authorized to advise the widow who is presumed to be incompetent to form an independent opinion. His non-belief in Hindu scriptures cannot in any way detract from his capacity to perform the said act. The fact that he does not believe in such things does not make him any the less a Hindu. The non-belief in rituals or even in some dogmas does not ipso facto remove him from the fold of Hinduism. He was born a Hindu and continues to be one till he takes to another religion. But what is necessary is, being a Hindu, whether he was in a position to appreciate the question referred to him and give suitable answer to it. After going through his evidence, it was found that this defendant had applied his mind to the question before him. Whatever may be his personal predilections or views on Hindu religion and its rituals, he is a Hindu and he discharged his duty as a guardian of the widow in the matter of giving his consent. In the circumstances of the case, his consent was held sufficient to validate the adoption.134

The scope of the exercise of the power to grant consent to adoption depends

(1) on the nature of the power, and

(2) on the object for which it is exercised.

The nature of the power being fiduciary in character, it is implicit to it that it shall not be exercised so as to further the personal interests of the sapindas. The law does not countenance a conflict between duty and interest and if there is any such conflict, the duty is always made to prevail over the interest.135

The requirement for consent of a sapinda for adoption by a widow who has not obtained the consent of her husband in his lifetime was laid down because Hindu law considers a woman incapable of independent judgment and proceeds on the basis that a woman is likely to be easily misled by undesirable advisers.136 But the advice of a person incapable of independent judgment would hardly ensure that the adoption to be made by a widow is proper and justified. On the principles thus recognised in Hindu law, it would be justified to hold that a Hindu widow, even if she happens to be the nearest sapinda to the widow seeking to make the adoption, would not be a competent advisor and, consequently, there can be no requirement that her consent must be obtained for validating the adoption. The principles clearly point to the conclusion that the consent must be obtained from the nearest male sapinda.137

It would be negation of the fiduciary duty, if it is held that a sapinda could refuse to give his consent on the ground that the members of his branch or those of his brother's would be deprived of their inheritance. If that was the object of the refusal, it could not make any difference in the legal results, however the intention was camouflaged. Suppose a sapinda gives his consent on the condition that a member of his branch only should be adopted. In effect and substance he introduces his personal interests in the matter of his assent, with a view to secure the properties to his branch. It would only be a matter of degree should he extend the choice of the widow to the divided branches of his family comprehending a large group of sapindas, for even in that case the sapinda seeks to enforce his choice on the widow on extraneous considerations. In giving or withholding his consent in his capacity as guardian or the protector of the widow, the sapinda should form an honest and independent judgment on the advisability or otherwise of the proposed adoption with reference to the widow's branch of the family. The sapinda should bring to bear on impartial and judicial mind on the problem presented to him and should not be swerved by extraneous and irrelevant considerations. He shall ask himself two questions, viz., (i) whether the proposed adoption would achieve the object for which it was intended, and (ii) whether the boy selected was duly qualified. We have already noticed that the object of the adoption is two-fold: (1) to secure the performance of the funeral rites of the person to whom the adoption is made, and (2) to preserve the continuance of his lineage. The sapinda should first answer the question whether the proposed adoption would achieve the said purpose. If the widow's power to take a boy in adoption was not exhausted there would hardly be an occasion when a sapinda could object to the widow taking a boy in adoption, for every valid adoption would invariably be in discharge of a religious duty. But it is also permissible for a sapinda to take objection in the matter of selection of the boy on the ground that he is not duly qualified for being adopted; he may rely upon mandatory prohibitory rules laid down by shastras and recognized by courts in regard to the selection of a particular boy.138 The necessity of consent of the husband's sapindas would arise — if the Madras School of Mitakshara law was applicable — only where there was no authority from the husband.139

The very fact that consent is given by a sapinda implied that the adoption is considered desirable and is being resorted to by the widow for spiritual and religious considerations and not out of caprice. Every sapinda knows that, as soon as an adoption is made, spiritual benefit will accrue to the deceased husband and that the existence of the adopted son will perpetuate his line. Such consciousness is implied in giving the consent. It is only when the consent is being refused by a sapinda that it becomes relevant to see whether the refusal was justified on the ground that the adoption was not being made with such objects.140

Hindu widow in making an adoption exercises a power which she alone can exercise, though her competency is conditioned by other limitations. Whether she was authorized by her husband to take a boy in adoption or whether she obtained the assent of the sapindas, her discretion to make an adoption, or not to make it, is absolute and uncontrolled. She is not bound to make an adoption and she cannot be compelled to do so. But if she chooses to take a boy in adoption there is an essential distinction between the scope of the authority given by her husband and that of the assent given by the sapindas. As the widow acts only as a delegate or representative of her husband, her discretion in making an adoption is strictly conditioned by the terms of the authority conferred on her. But in the absence of any specific authorizaion by her husband, her power to take a boy in adoption is coterminus with that of her husband, subject only to the assent of the sapindas. To put it differently, the power to adopt is that of the widow as the representative of her husband and the requirement of assent of the sapindas is only a protection against the misuse of it. It is not, therefore, right to equate the authority of a husband with the assent of the sapindas.141

When there is express authority by the husband or when consent of the sapindas has been properly obtained the motive of the widow is irrelevant. The motive of the widow in making an adoption is irrelevant for the purpose of validating the adoption. Consequently, the refusal of the consent by sapindas on the ground that the motive of the widow is improper would amount to improperly withholding the consent.142

Right of Jain widow to adopt without authority of husband repeatedly recognised in judicial decisions. The custom found generally applicable to Jains all over India except Jains domicilde in Madras and Punjab. Such adoption by Hindu widow is valid.143

The power of a widow to adopt comes to an end by the interposition of a grandson or he son's widow competent to adopt" has become a part of Hindu Law, though the reasons for limiting the power may not be traceable to any Shastric text; and may have been differently stated in the several judgments. It is well known that in the absence of any clear Shastric text the courts have authority to decide cases on principles of justice, equity and good conscience and it is not of the rule are not consistent with these principles. During the arguments no substantial grounds have been suggested for holding that the rule is either inequitable or unjust or is repugnant to or inconsistent with any doctrine or theory of Hindu Law of adoption. In this situation we are bound to hold that it is too late in the day to say that there are no limitations of any kind on the widow's power to adopt excepting those that limit the power of her husband to adopt, i.e. that she cannot adopt in the presence of a son, grandson or great grandson. Hindu Law generally and in particular in matters of inheritance, alienation and adoption gives to the widow powers of a limited character and there is nothing in the limitations laid down by the course of decisions above referred to repugnant to that law. For the reasons given above, widow's power to make an adoption comes to an end by the interposition of a grandson or the son's widow competent to continue the line by adoption.144 Principles governing the adoption in such case145 are:

(1) That the interposition of a grandson, or the son's widow, competent to continue the line by adoption brings the mother's power of adoption to an end;

(2) that the power to adopt does not depend upon any question of vesting or divesting of property; and

(3) that a mother's authority to adopt is not extinguished by the mere fact that her son had attained ceremonial competence. It is too late in the day to say that there are no limitations of any kind on the widow's power to adopt excepting those that limit the power of her husband to adopt, i.e. that she cannot adopt in the presence of a son, grandson or great grandson.

Hindu Law generally and in particular in matters of inheritance, alienation and adoption gives to the widow powers of a limited character.146

The interposition of a grandson, or the son's widow, competent to continue the line by adoption brings the mother's power of adoption to an end. On the death of husband the responsibility for the continuance of the family line fell on his widow and by the power of adoption vesting in her, and the power of her mother in law to adopt was extinguished permanently and did not revive even on remarriage of widow. Consequently the adoption was invalid in the eye of law and adoptee did not get any interest in the suit properties.147

When there is no custom barring the adoption of the wife's sister's husband, it was held to be valid.148

The burden of proving existence of special family custom lies on the person relying on such custom. Therefore he has to prove that such custom is invariably in practice for a long time to seek relief on the basis such custom.149 But where a custom recognised by court, it becomes law and it can be given effect without the necessity of formal proof because the court can take judicial notice of such custom.150 Where custom is set up to prove that it is at variance with the ordinary law, it has to be proved that it is not opposed to public policy and that it is ancient invariable, continuous, notorious, not expressly forbidden by the legislature and not opposed to morality or public policy.151

Whether a particular rule recorded in the 'Riwaj-i-am' is mandatory on directory must depend on what is the essential characteristic of the custom. Under the Hindu law adoption is primarily a religious act intended to confer spiritual benefit on the adoptor and some of the rules have, therefore, been held to be mandatory and compliance with them regarded as a condition of the validity of the adoption. On the other hand, under the Customary Law in the Punjab, adoption is secular in character, the object being to appoint an heir and the rules relating to ceremonies and to preferences in selection have been held to be directory and adoptions made in disregard of them are not invalid.152

A customary adoption in the Punjab is ordinarily no more than a mere appointment of an heir creating a personal relationship between the adoptive father and the appointed heir only. There is no tie of kinship between the appointed heir and the collaterals of the adoptive father. The appointed heir does not acquire the right to succeed collaterally in the adoptive father's family. The status of the appointed heirs is thus materially different from that of a son adopted under the Hindu law.153

Adoption is made to ensure spiritual benefit for a man after his death. If a son is in existence to do so, adoption of another is meaningless, purposeless.154

A widow is the limited owner of the property after the death of her husband and after Hindu Succession Act came into force, has become an absolute owner and therefore the property of her husband vested in her and therefore merely by adopting a child she could not be deprived of any of her rights in the property. The adoption would come into play and the adopted child could get the rights for which he is entitled after her death.155

For adoption by a person other than natural Guardian, the jurisdiction to grant sanction vests in the Civil Court or District Court and not in the Family Court.156

The rule that adoption of a son of a Viruddha Sambandha girl should be avoided, can not be taken as mandatory so that the rule must be obeyed on pain of the adoption being otherwise invalid in law. Nanda Pandit has stated this merely as a recommendation and not as a mandatory prohibition. It is striking tha though the numerous Dharma Sutras and Grihya Sutras, deal at great length with the question of the girl who can be taken in marriage not one of them with the solitary exception of Ashvalayana has anything to say abut Virudha Sambandha. This rule introduced by Nanda Pandit is only a recommendation and consequently it is of no avail to show that the adoption of wife's sister's daughter's son is invalid. A marriage of a Hindu with his wife's sister's daughter is not invalid in law even though it may not be liked by certain people.157

As regards the power of the wife to adopt a son, it was observed that even before the Act came into force, the customary Hindu law recognized the right of the widow to make an adoption. The other two reasons could be concurrent where parents are without children. There may be cases where their property passes on to near and dear relative. Therefore, one of the near or dear relatives may be adopted in order to pass on the properties to such adopted child. Therefore, a married woman or a wife in praesenti stands outside the class of women who have been conferred rights u/s 8 of the Act. Section 8 of the Act contemplates the right of women to adopt who are single but have attained the age of majority, a widow and a woman who has divorced her husband. In all the three instances, the woman is single in status. Therefore, compared with those women, a woman in married status falls into a different class. The legislature has not made any discrimination between a wife and a woman answering to other descriptions. The right of the wife in married status falls u/s 7 of the Act. The adoption is to the family and not to individual spouses. This is the practice obtaining in all civilized societies which recognize the family as a unit in such societies. A child is adopted as a child adopted to the family and not the father or the mother separately. One cannot think of a situation in any civilized society that a wife may have a separate right to adopt a child without the consent of her husband and the husband may likewise do so. The complications are one to many to exhaustively enumerate the disasters that may fall on such a family. It could relate to property; it could relate to harmony within the family; it could relate to personal animosity giving expression to unbridled passion and to violence within the family. Therefore, with all the wisdom the legislature possessed, the Parliament has made law in such a way that the harmony of the family is not destroyed by permitting the wife to adopt separately without the consent of husband or vice versa.158

In one case where the question of proper age of adoptee at the time of adoption was concerned, the High Court, after finding that the factum of adoption had been established, stated as follows on the question of the validity of the adoption:

"The question then arises, is the adoption legal and valid in law in view of the provisions of the Act ? Section 10 of the Act inter alia provides that no person shall be capable of being taken in adoption unless the four conditions therein laid down are fulfilled. We are concerned with the fourth condition and it is as under:

'(iv) he or she has not completed to age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.'

A the time when the plaintiff was adopted he was about 22 years old, but even though there is a difference of opinion between various schools as the age when a boy may be adopted, so far as the Bombay Stated is concerned the position is well settled in view of more than one judicial decision. As pointed out in Mulla's Hindu Law, 14th Edition at page 550 in the Bombay State a person may be adopted at any age though he may be older than the adopter and though he may be married and have children. The adoption is not invalid although it took place after the thread ceremony of the boy was performed. Thus the custom is judicially recognised in the Bombay State as regards adoption of a child at any age. Once the custom is judicially recognised, it is not required to be independently proved is subsequent cases. The plaintiff and the defendant No. 1 belonged to the area which was part of the old Bombay State and accordingly such a custom prevailed amongst them as regards adoption of a child at any age. Even independently of this position, in the old Bombay State evidence was led of two instances of adoption of person belonging to the same caste as the plaintiff where a child was adopted at the age above 15 years after the Act came into force. Thus, in my opinion, in view of the settled position in law as judicially recognised, if the factum of the adoption is established its validity cannot be challenged on the ground that the adopted child had completed age of 15 years at the time of his adoption."

The Supreme Court after referring to the above observations of the High Court held that it is well supported by a long line of decisions of that High Court including the subsequent decision of the Full Bench of that High Court159 and affirmed the decision of the High Court.160

Adoption by unmarried woman

Aliyasanthan system

Under the Aliyasanthana system of Law, where a gift or disposition is made in favour of all the members of a Kavaru, the law presumes that it is a gift or disposition in favour of that Kavaru and that the named persons will inherit the properties with the incidents of Aliyasanthana law or Marumakkathayam law.162

Burden of proof

The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate.163

The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but where it is admitted that one of the coparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the other side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief.164

There cannot be any doubt that it is possible that aboriginals of non-Hindu can become sufficiently Hinduised so that in the matter of inheritance and succession they are prima facie governed by the Hindu Law, except so far as any custom at variance with such law is proved. The burden of proof is initially upon the plaintiff to show that the parties have become "Hindus out and out" or "have become sufficiently Hinduised" so as to be governed in the matter of succession and inheritance by any School of Hindu Law. 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.165

In India a Hindu is governed by his personal branch of law which he carries with him wherever he goes. But the law of the province wherein he resides prima facie governs him and in this sense and to this extent only the law of domicile is of relevance or importance. But if it is shown that a person came from another Province, the presumption will be that he is governed by the law or the special custom by which he would have been governed in his earlier home at the time of migration. An inference of migration can well be made from the known facts of the chief characteristics of the family, the language, observance of customs and rites though they are not sufficient to prove that they are governed by a particular school or law. The presumption can be displaced by showing that the immigrant had renounced the law of the place of his origin and adopted the law of the place to which he had migrated. The onus lies on the person alleging that the family had renounce the law of its origin and adopted that prevailing in the place of which he had migrated.166

Coparcener

A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters but a Hindu coparcenery is a much narrower body than the Hindu joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenery property, these being the sons, grandsons and great-grandsons of the holders of the joint property for the time being.167 Coparcenary 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.168

An individual member of the joint Hindu family has no definite share in the corpacenary property. By an alienation of his undivided interest in the coparcenary property, a coparcenary of their right to the property. The objects of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. It is true that there is alienation by gift and the law in this regard has developed gradually, but that is for the purpose of preventing a joining Hindu family from being disintegrated.169

For formation of a coparcenary under the Hindu Law, a nucleus of property which has come down to the father from his father, grandfather or great grandfather is not necessary, provided the persons constituting it stand in the relation of father and son or any other relationship requisite for a coparcenary.170 Property acquired jointly by father and son living together becomes joint family property even in the absence of family nucleus for its acquisition.171

The fact that a firm carrying on business is a joint family concern is itself a nucleus and the property acquired by the joint labours of the members must be deemed to be the joint family property.172

A Coparcenery can exist under Mitakshra Law even with a sole lunatic member. Even though an insane person may not have a right to a share or to claim a partition but when another coparcener disrupts the joint family status, the insane coparcener gets the right to seek severance subject to postponement of the right till he is cured173

But a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior consent of all other coparceners. Such a gift would be quite legal and valid. Such gift should be construed as relinquishment or renunciation of his undivided interest by the donor in favour of the other coparceners. Although the gift is ostensibly in favour of donee, but really the donor meant to relinquish his interest in the coparcenary in favour of donee and his sons. Such renunciation enures for the benefit of all other coparceners and not for the sole benefit of the coparcener in whose favour the renunciation was made.174

So long as a family remains as undivided family, two or more members of it, whether they are members of different branches or of one and the same branch of the family can have no legal existence as a separate independent unit; but all the members of a branch or of a sub-branch, can form a distinct and separate corporate unit within the larger corporate family and hold property as such. But the law does not recognise some of the members of a joint family belonging to different branches or even to a single branch, as a corporate unit. Any acquisition of property by some such persons could be held by them only as co-sharers or co-tenants and the property would pass by inheritance and not by survivorship.175

Congenial disqualification of coparcener

Where a member of the joint family had no congenial disqualification and had acquired by birth an interest in the joint property later supervening disqualification while,. It might debar him from claiming a partition, but it would not prevent him from acquiring the property by survivorship when none of the disqualifications enumerated in the Hindu Inheritance (Removal of Disabilities) Act, 1928, which excludes an heir from inheritance has been pleaded or proved.176

Daughter

Maintenance by a man of his dependants is, with the Hindus, a primary duty. They hold that he must be just, before he is generous, his charity beginning at home; and that even sacrifice is mockery, if to the injury of those whom he is bound to maintain. Nor of his duty in this respect are his children the only objects, co-extensive as it is with the family whatever be its composition, as consisting of other relations and connections, including (it may be) illegitimate offspring. It extends according to Manu and Yajnavalkya to the outcast, if not to the adulterous wife; not to mention such as are excluded from the inheritance, whether through their fault, or their misfortune; all being entitled to be maintained with food and raiment.177

A destitute widowed daughter has a right of maintenance against her brothers after the death of her father when she could not get sufficient provision from her deceased husband's family for her maintenance.178

A gift out of affection may be made, to a wife, to a daughter and even to a son, provided the gift is within reasonable limits. A gift for example of the whole or almost the whole of the ancestral moveable property cannot be upheld as a gift through affection. But so far as immovable ancestral property is concerned, the power of gift is much more circumscribed than in the case of moveable ancestral property. A Hindu father or any other managing member has power to make a gift of ancestral immovable property within reasonable limits for "pious purposes.179

Daughter in law

Under the Hindu law there is a moral obligation on the father-in-law to maintain the daughter-in-law and the heirs who inherit the property are liable to maintain the dependants. It is the duty of the Hindu heirs to provide for the bodily and mental or spiritual needs of their immediate and nearer ancestors to relieve them from bodily and mental discomfort and to protect their souls from the consequences of sin. They should maintain the dependants of the persons of property they succeeded. Merely because the property is transferred by gift or by will in favour of the heirs the obligation is not extinct. When there is property in the hands of the heirs belonging to the deceased who had a moral duty to provide maintenance, it becomes a legal duty on the heirs. It makes no difference whether the property is received either by way of succession or by way of gift or will, the principle being common in either case.180

The moral obligation of a father-in-law possessed of separate or self-acquired property to maintain the widowed daughter-in-law ripens into a legal obligation in the hands of persons to whom he has either bequeathed or made a gift of his property.181

Under section 19 of Hindu Adoptions & Maintenance Act, 1956 one of the conditions for the father-in-law to maintain the daughter-in-law is that the daughter-in-law is not able to maintain herself from the estate of her parents. A clear finding is necessary whether her parents have estate sufficient to maintain her and on what circumstances, she is unable to maintain herself or by her parents. For this purpose parents of plaintiff are required to be heard. This is possible if they are made parties to the suit. In their absence any finding will not bind them. Where, from the estate of the parents, the daughter-in-law can maintain herself, question of obligation of father-in-law does not arise. It is also to be found out whether there is any coparcenary property in the hands of the father-in-law from which daughter-in-law is deprived of her share.182

Effect of Hindu Succession Act, 1956

Upon death of Karta, succession to the share of Karta by other members of family takes place according to Hindu Succession Act. The members continuing to live together enjoying the property as before, therefore in the absence of any separation the family continues to remain joint and even though the individual interest of some members had become fixed, it does not amount to partition.183

A male member succeeding the deceased father does not inherit property as a Karta but as an individual after the amendment of Hindu Succession Act, 1956. A property which devolved on a Hindu would not be Hindu Undivided Family property in his hands vis-à-vis his own sons.184

On a reading of Section 18 of the Hindu Succession Act it is clear that the words used therein are "nature of the relationship is the same in every other respect" and not that the relationship should be of the same nature. From the above wording of the Section, it is clear that the relationship of a brother and sister is the same irrespective of the difference in sex among them. To find out whether a person is excluded under Section 18 or not, the relationship is to be reckoned in terms of the degrees of ascent or descent or both. The Hindu Succession Act was enacted for the purpose of giving an equal right to a son and a daughter whereby taking away the distinction between them which existed under the Hindu law. From the wording of Section 18 and from the object of the Hindu Succession Act, it is abundantly clear that the Act never intended to make any difference between a man or woman in case of succession of the properties of a male or female. By virtue of Section 18 of the Hindu Succession Act, full brothers and sisters have to be preferred and the a heir coming under Class-II will stand excluded when sisters by full blood are available.185

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.186

Father of adoptee

Where mental capacity of adopting father was doubtful, it was held that the adoption by way of a written deed which was not registered due to doubts about mental capacity of the executant at the time of adoption is invalid.187

Female

Prior to the enactment of local law of Mysore, viz. Women's Rights Act, 1933, a female in Mysore had no right to share in joint Hindu family property. Their right was confined to maintenance, residence and marriage expenses but the position has changed after enactment. The mother, Grand mother and Great Grand mother all are entitled to share in the property alongwith sole surviving male coparcener.188

A female may continue to be a member of the joint family, but if any property purchased in her name even though there may be sufficient nucleus, there can be no presumption that the property is joint family property.189

The widow of deceased coparcener and mother of minor coparcener is not a coparcener. She has no legal qualification to become manager of joint Hindu family or to alienate the property of joint family.190

Illattom adoption

Illattom adoption is something peculiar to certain communities in the State of Tamil Nadu and in the State of Andhra Pradesh. There is prevalence of the custom of illattom adoption in the communities concerned, namely, Reddies, Kappus and Kammas in the State of Tamil Nadu and in the State of Andhra Pradesh. It is a custom of affiliating a son-in-law and giving him a share. This custom has now judicial recognition.191

Although an illatom son-in-law has some rights similar to those of a natural son born after the adoption of the illatom son-in-law, his rights are not identical to those of conferred by law on a son or an adopted son. To cite two main differences, he does not succeed to the properties of his father-in-law by survivorship, but only on account of custom or an agreement giving him a share in the property of his father-in-law. His position is not identical to that of an adopted son because he does not lose his right in his natural family on being taken as an illatom son-in-law and continues to be entitled to a share in the property of his natural father. It is, therefore, difficult to regard an illatom son-in-law who has attained majority as a major son.192

There are two essential conditions which should be satisfied before Courts could spell out illattom adoption. One is the adoptee must marry the daughter of the adoptor. So far as this condition is concerned, this did happen, need not be a matter of disputation. The secend condition is that there should be an agreement to give the son-in-law taken in illattom adoption a share. Mere marrying the daughter of the family and mere living in the house of the father-in-law and helping him in the administration and management of the properties, would not lead to the result of affiliation. The second condition is the significant and important one and there should be requisite specific agreement which alone could form the basis for this affiliation.193

Illegitimate son

The illegitimate son of a Sudra by a continuous concubine has the status of a son, and that he is a member of the family; that the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son; that where the father has left no separate property and no legitimate son, but was joint with his collaterals, the illegitimate son is not entitled to demand a partition of the joint family property in their hands, but is entitled as a member of the family to maintenance out of that property. This statement of the law, may be supplemented by three other well-settled principles, these being firstly, that the illegitimate son does not acquire by birth any interest in his father's estate and he cannot therefore demand partition against his father during the latter's lifetime, secondly that on his father's death, the illegitimate son succeeds as a coparcener to the separate estate of the father along with the legitimate son(s) with a right of survivorship and is entitled to enforce partition against the legitimate son(s) and thirdly that on a partition between a legitimate and an illegitimate son, the illegitimate son takes only one-half of what he would have taken if he was a legitimate son.194

But in a later case it has been held with reference to the provision of Hindu Marriage Act, 1955 and Madras Hindu (Bigamy Prevention and Divorce) Act, 1949, that an illegitimate son can not be treated as a coparcener.195

Once it is established that for the purpose of succession an illegitimate son of a Sudra has the status of a son and that he is entitled to succeed to his putative father's entire self-acquired property in the absence of a son, widow, daughter or daughter's son and to a share along with them, and there is no escape from the consequential and logical position that he shall be entitled to succeed to the other half share when succession opens after the widow's death. The intervention of the widow only postpones the opening of succession to the extent of half share but it cannot divert the succession through a different channel, for she cannot constitute herself a new stock of descent.196

In regard to a child of a void marriage following principles have been laid down197 :

(1) a child of a marriage which is void under the provisions of Hindu Marriage Act whether a decree of nullity is passed or not, is a legitimate child. (Section 16(1), Hindu Marriage Act);

(2) Such a child does not acquire right to property which a legitimate child would, but the legitimacy confers upon him right to property of his parents. (Section 16(3), Hindu Marriage Act);

(3) The property to which such a child can lay claim must be the separate property of the parents and not the coparcenary property in which the parent has a share. (Contrary view in Reghunath v. Nana, 1985 (87) Bom LR 488) is not the correct law;

(4) Since no child, whether legitimate or otherwise acquires right by birth in separate property of its parent, a child of any void marriage can only succeed to the property of its parent in accordance with the provisions of Section 8 or Section 15, Hindu Succession Act;

(5) A child of a void marriage is related to its parents within the meaning of Section 3(1)(j), Hindu Succession Act because of the provisions of Section 16, Hindu Marriage Act proviso to Section 3(1)(j) must be confined to those children who are not clothed with legitimacy under Section 16, Hindu Marriage Act.

Kartha or manager

Power of the manager of a joint family acting on behalf of the minor members is a limited power and it can be exercised in a case of need or for the benefit of the estate. If the particular transaction is one which a prudent owner would make, in order to benefit the estate, the bona fide lender is not affected in any manner. But to sustain the transaction, the actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon the estate has to be found out. A lender is bound to inquire into the necessities for the loan, and to satisfy as well as he can, with reference to the parties with whom he is dealing, that the manager is acting in the particular instance for the benefit of the estate. If he does inquire, and acts honestly, the real existence of an alleged sufficient necessity is not a condition precedent to the validity of the charge on the estate. A bona fide creditor will not suffer when he has acted honestly and with due caution.198

Two persons may look after the affairs of a joint Hindu family on the basis of the members of the joint Hindu family clothing them with authority to represent the family. They would be two persons entitled to represent the family and their power to represent would depend on the terms of the authority conferred on them by the members of the joint Hindu family. Their authority to act for the family is not derived under any principle of Hindu Law, but is based on the members of the Joint Hindu family conferring certain authority on them. It cannot, therefore, be said that when two such representatives of a joint Hindu family sue and obtain a decree in their favour for the benefit of the joint Hindu family, and an appeal is filed against both of them as respondents representing the joint Hindu family, the other representative would continue to represent the joint family on the death of one of the representatives, he could not possibly do so when the authority given by the joint Hindu family be to the effect that both of them were to act jointly. In the absence of any knowledge about the terms of authority of the two representatives, it is not possible to urge successfully that on the death of one of the representatives, the other representative still continued to represent the joint Hindu family. On the death of one of the representatives, the karta of the family, in accordance with the principles of Hindu Law, will automatically be the person entitled to represent the joint Hindu family till such time that the family again decides to confer the authority on specified members of the joint Hindu family to represent it.199

Where the manager enters into a transaction and mixed charge on the joint family estate not for any legal necessity nor for any benefit of the estate and creditor also does not make the necessary enquiry to find out whether in fact the loan is for the benefit of the estate or not then such a loan by the manager cannot be enforced on the other members of the joint family or against the joint family property.200 Where ancestral property is sold for the purpose of discharging debts incurred by the father and the bulk of the proceeds of the sale is so accounted, the fact that a small part of the consideration is not accounted for will not invalidate the sale.201

The Karta of a joint Mitakshara Hindu family, therefore, is not accountable for the rents, issues and profits, which came into his hands during his management of the properties as Karta. But he is still bound to keep true and correct accounts and to show the savings effected from the income of the joint family property.202

In case of death of Karta (Karanavan) of HUF (Tarward) mortgage of property was effected by junior member of Tarward as its de facto Kartha, it was held that validity of mortgage of joint family property by junior member, cannot be assailed.203

Under the Madras School of Mitakshara law a Kartha had no power to make a gift of even his undivided interest in the coparcenary properties to his concubine. The gifts were therefore invalid. The invalid gifts were not validated by the disruption of the joint family subsequently. After the disruption of the joint family, donor was free to make a gift of his divided interest in the coparcenary properties to the concubine, but since he did not make any such gift, the transfers by way of gift deed executed earlier were and are invalid.204

Married daughter

The object of the proviso to Section 23 of the Hindu Succession Act, 1956 is to make a provision for residence in a family dwelling house to a daughter who is unmarried or if married has been deserted by or has separated from her husband or is a widow and not to render her homeless in case she is not entitled to seek her share in such house unless the male heirs seek partition of the family dwelling house. The object of the proviso will be defeated and it will encourage the married daughter to desert her husband or live separately from her husband if it is held that the daughter, who deserts her husband or lives on her own accord separately from her husband, is entitled to a residence in a family dwelling house. Therefore, such an interpretation has to be avoided.205

Right of married daughter to claim partition of family dwelling house remain dormant till male heir chose to divide. Therefore a married daughter cannot claim right of residence in family dwelling house.206

The mother who spent the amount on marriage of daughter is entitled to claim the marriage expenses from the father, if it was properly pleaded and proved even though the mother is also bound to maintain the daughter.207

Marumakkattayam Law.

The principal incident of Marumakkattayam law is that it is matriarchate. Members of the family constituting a Marumakkattayam tarwad are descended through a common ancestress in the female line with equal rights in the property of the family. Under the customary Marumakkattayam law no partition of the family estate may be made, but items of the family property may by agreement be separately enjoyed by the Members. On death the interest of a member devolved by survivorship. Management of the family property remained in the hands of the eldest male member, and in the absence of a male member a female member. A tarwad may consist of two or more branches known as thavazhies; each tavazhi or branch consisting of one of the female members of the tarwad and her children and all her descendants in the female line. Every tarwad consisted of a mother and her children, male and female, living in commensality, with joint rights in property.208

Under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law. But the said principle has not been accepted or applied to acquisition of properties in the name of a junior member of a tarwad (anandravan). If a property is acquired in the name of the karnavan, there is a strong presumption that it is a tarwad property and that the presumption must hold good unless and until it is rebutted by acceptable evidence.209

Minor

A minor has no legal competence to enter into contract but natural guardian can bind him with the contract entered on his behalf to purchase the property if the contract is for the benefit of the minor.210

Section 11 of Hindu Minority & Guardianship Act, 1956, also operate with reference to minor's interest in the joint family property. Further, Section 6 mentions who are natural guardians for the minor's property other than his interest in the joint family. While so, when the succeeding Section 8 deals with powers of a natural guardian, it is but natural to imply— when there is nothing to indicate contra in that section— that the said powers are that of natural guardian of minor's property other than his interest in the joint family property. Therefore it was held that Section 11 of said Act will apply to all properties of a minor, including the minor's interest in the joint family property.211

When the natural guardian viz., father of minor is still alive, no other person has right to alienate the property. Even if father of the minors abandoned them, any other person cannot assume the role of their guardian and alienate their property on the pretext that the alienation is beneficial to them or that as a result of the alienation another property has been purchased for the benefit of the minors.212

Another view is that having regard to the language employed in Section 11, the entitlement of the de facto guardian to deal with or dispose of a property of a Hindu minor will not spring merely from the fact of a person being a de facto guardian. That is to say that, there may be circumstances, as for instance, that there is no other person left alive to look after the minor, or the interest of the legal guardian is adverse to that of the minor. In such case, the de facto guardian is not acting as such merely by reason of that fact, but due to the existence of other circumstances which make it necessary for her to act as a de facto guardian. Therefore Section 11 does not render such sale void.213

There is a distinction between the custody and guardianship of the person of a minor on his father's death and the custody and management of the minor's interest in the coparcenary property. Though a widow may be entitled to a share equal to the son in the joint family property. She is not a member of the coparcenary. On the father's death, she may be entitled to the custody of the person of her minor son and even of his separate property but she is not entitled to act as guardian of undivided interest of the minor in the coparcenary. The guardianship of the entire coparcenary property including the minor's share as well as that of the widowed mother vests in the eldest son, and he on the father's death becomes the Karta of the joint family estate. If the minor is a member of a joint family governed by the Mitakshara Law, the father as Karta (manager) is entitled to the management of the whole coparcenary property including the minor's interest. After the father's death, the management of the property including the minor's interest therein, passes to the oldest son as karta. The mother is not entitled to the custody of the undivided interest of her minor son in the joint family property because such property is not separate property, though she is entitled to the custody of his person and to his separate property, if any.214

The inflexible rule in respect of minors is that it is incumbent on the plaintiff suing a minor defendant to file an application in Court for the appointment of a guardian and the subsequent steps that are to be taken are within the purview or province of the Court. If an application is not made as provided by Order 32, Rule 3 of Civil Procedure Code, 1908, any guardian who may have acted for the minor, would not be clothed with the requisite authority to act as such. The consent that can be presumed is only if an application has been made, and notice issued to the proposed guardian. The non-compliance with the mandatory provisions of Order 32, Rules 3 and 4 of the Code makes a decree void and must also be presumed to have caused prejudice to the minor.216 The full bench of this court had however taken a contrary view that 'the crux of the matter is that it has to be seen whether the minor was effectively represented in the litigation. If he was, then the non-compliance with the provisions of Order 32, Rule 3, which are mandatory, would not render the decision void. But if the non-compliance has caused prejudice to the minor or he was not effectively represented, the decision will be void, i.e., the minor can either ignore it or avoid it. This approach is in consonance with justice because where the matter had been properly contested and no prejudice has been caused to the minor, it will be sheer injustice to the other side to re-open the matter again, litigation is a very expensive affair and the general principle of law is that it should not be encouraged.'217

The Hindu Minority & Guardianship Act, 1956 is intended to amend and codify certain parts of the law relating to minors and guardianship among Hindus. Section 2 of the Act indicates, that the provisions of the Act are in addition to and save as expressly provided, not in derogation of the Guardian and Wards Act, 1890. Section 5 of the Act makes it clear that any other law in force immediately before the commencement of the Act shall cease to have any effect to the extent of inconsistency with any provisions in the Act. In that context, the Act prevails over any other law in regard to the maters provided for by the Act. There is thus a clear indication that the Act is not a complete code relating to the Hindu Law on minority and guardianship and as far as the maters not covered by the Act are concerned, they are regulated by the Hindu Law as well as other statutes o the subject. However, in respect of the subject-matter with which it deals, it is a codifying enactment. Section 6 indicates who are the natural guardians of a Hindu minor. It is provided that in the case of a boy or an unmarried girl, the father and after him the mother shall be the natural guardian. Section 8 of the Act deals with the power of the natural guardian. Section 8(1) confers power on the natural guardian subject to the provisions of that Section to do all acts which ae necessary or reasonable and proper for the benefits of the minor. Sub-section 2 of Section 8 then provides that the natural guardian shall not without the previous permission of the court mortgage, charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor. Sub-section 3 of Section 8 state that any disposal of immovable property by a natural guardian in contravention of sub-section (2) is voidable at the instance of the minor or any person claiming under him. Sub-sections 4 & 5 deal with the permission to be sought by the natural guardian. Therefore, section 8 on its terms, clearly displace any other rule of law relating to alienation of the properties of a Hindu minor by the natural guardian of that minor. While Section 8(1) enables a natural guardian to do all acts which are necessary or reasonable and proper for the benefit of the minor, it is subject to the other sub-sections of that Section. Sub-section (2) in positive terms interdicts the guardian from selling the property of the minor. Read in the context of Section 5 of the Act, it is clear that there is a statutory prohibition on a natural guardian from selling the immovable property of a minor without the previous permission of the court. The words of section 8(2) of the Act are imperative and courts are not left with any jurisdiction for whittling down the scope of that provision. It is obvious that any action of a natural guardian in contravention of the positive mandate of Section 8(2) of the Act could not be taken cognizance of by the Court. It must be remembered that it is sub-section (1) of Section 8 of the Act that give the power to the natural guardian to do acts for the benefit of the minor, but that is subject to sub-sections 2 to 5 of that Section. In the face of Section 8(1) of the Act there is no scope for tracing the power of the guardian to any existing rule of Hindu Law. Thus a transaction in violation of Section 8(2) of the Act has necessarily to be treated as a transaction in violation of a statue and consequently void.218 Thus any transaction by a natural guardian, of the immovable property of the minor without permission of the court will not have nay legal force and would not be binding on the minor.219 An action to avoid such transaction may as well be by instituting an action to recover possession of the property. It would therefore suffice if the transaction is avoided by the institution of the suit for recovery of possession.220

Till the legal guardian is removed for the minors, the minors are deemed to be under the protection and custody of the Court. The guardian is responsible to the Court and is obliged to act in the best interest of the minors. He cannot part with the property of the minors without the permission of the Court and he cannot sell the property of the minors to the detriment of the minors.221

Where the father has converted into Islam and he married a Muslim girl, as per the Proviso in Section 6 of the Hindu Minority and Guardianship Act he has ceased to be a Hindu and hence he is not entitled to act a natural guardian to the minors. As per this section after the father the mother would be the natural guardian of the minors.222

While both the parents are duty-bound to take care of the person and property of their minor child and act in the best interest of his welfare, it was held that in all situations where the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or mental incapacity, the mother can act as natural guardian of the minor and all her actions would be valid even during the life time of the father, who would be deemed to be "absent" for the purposes of Section 6(a) of the Hindu Minority & Guardianship Act, 1956 and Section 19(b) of the Guardians & Wards Act, 1890.223

Where the partition is effected between the members of the Hindu Undivided Family which includes minor coparcenars, the partition is binding on the minors also if it is done in good faith and in bona fide manner, keeping into account the interests of the minors. Where, however, a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unfair and unjust and is detrimental to the interests of the minors, the partition is not binding on a minor and it can be reopened at any time. And in such a case, it is the duty of the court to protect and safeguard the interests of the minors. And the onus to prove that the partition was just and fair is on the party supporting the partition. Such a partition could be reopened at the instance of a minor coparcener though there was no fraud, misrepresentation or undue influence, and despite the fact that at the time of partition his branch was represented by his father.224

Any children of a marriage which is null and void under Section 11, Hindu Marriage Act, 1955, whether there has been a decree of nullity granted in respect of that marriage or not or whether the said marriage has been held to be void or not in proceeding under the Hindu Marriage Act, 1955, would be regarded as legitimate. The legitimacy, therefore, extends not only to the children of a void marriage which has been declared so in proceedings under the Hindu Marriage Act, 1955 but also to the children of such a marriage, whether it has been so declared or not in proceedings under the Act. The proviso to the original Section 16 is sub-Section (3) in the new Section 16. The effect of conferring legitimacy on a child of a void marriage is the same today as it was before the amendment of 1976.225

Place of residence

The conception of residence in the case of fictitious person such as a company, is as artificial as the company itself, and the locality of the residence can only be determined by analogy, by asking where is the head and seat and directing power of the affairs of the company. As a general rule, the control and management of a business remains in the hand of a person or a group of persons, and the question to be asked is where from the person or group of persons controls or directs the business.226 Reference was made to the following principles:

Mere activity by the company in a place does not create residence with the result that a company may be residing in one place and doing a great deal of business in another.

The central management and control of a company may be divided, and it may keep house and do business in more than one place, and, if so, it may have more than one residence.

In case of dual residence, it is necessary to show that the company performs some of the vital organic functions incidental to its existence as such in both the places, so that in fact there are two centres of management.

In this case on the one hand, the head and karta of the assessee's family who controlled and managed its affairs permanently lived in Colombo and the family was domiciled in Ceylon. On the other hand, certain acts were done by the karta himself in British India, which though not conclusive by themselves to establish the existence of more than one centre of control for the affairs of the family, but were by no means irrelevant to the matter in issue and, therefore, cannot be completely ruled out of consideration in determining the residence of joint family for the purpose of taxation.227

Presumption of adoption

In the case of a Hindu, long recognition as an adopted son, raised even stronger presumption in favour of the validity of his adoption, arising from the possibility of the loss of his rights in his own family by being adopted in another family. In the case of an ancient adoption showing that the boy was treated for a long time as the adopted son at a time when there was no controversy is sufficient to prove the adoption although evidence of actual giving and taking is not forthcoming.228

The correct rule of estoppel applicable in the case of adoption is that it does not confer status. It shuts out the mouth of certain persons if they try to deny the adoption, but where both parties are equally conversant with the true state of facts this doctrine has no application.229

If there is any document purporting to record an adoption made and it is signed by the person giving and the person taking the child in adoption, and that document is registered under any law for the time being in force and it is produced before any Court, the Court shall presume that the adoption has been made in compliance with the provisions of the Act, unless and until it is disproved.230

Once a registered adoption deed is produced before any Court recording the factum of adoption and it is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved. The presumption at the first place is conclusive, but it is rebuttable provided the deed of adoption is disproved. Once a registered deed of adoption was filed, the duty was not of propounder to establish the due execution and registration of the deed.231

Under Section 16 of the Hindu Adoptions & Maintenance Act, 1956, if any document registered under any law for the time being in force is produced before any court purporting to record the adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved. In the present case, the deed of adoption is not signed by any person giving the child in adoption. The copy which is produced before us does not indicate that this is a registered deed of adoption. Therefore, no presumption under Section 16 could have been drawn relating to the validity of the adoption.232

The presumption on account of registered deed of adoption can always be rebutted on the basis of evidence adduced before the Court which would include oral evidence.233

The mere fact of performance of these funeral rites does not necessarily support an adoption. The performance of these rites frequently varies according to the circumstances of each case and the view and usage of different families. Where the evidence led by the claimant showed that in the absence of the son, junior relations like a younger brother or a younger nephew performs the obsequial ceremonies, it was held that it was no proof of adoption.234

Where the deceased husband desiring to adopt son authorised widow to make the adoption but no son adopted by widow it was held that the son proposed to be adopted cannot claim any right when no adoption was actually made. It was observed that 'the rules of construction of a will against a postponement of vesting and avoidance of intestacy are not absolute and the court cannot embark on the task of construing a will with a preconceived notion that intestacy must be avoided or vesting must not be postponed. The intention of the testator should be ascertained by construing the will as a whole and giving the relevant clauses in the will their plain grammatical meaning considered together.'235

Where all the parties to the adoption and all those who could have given evidence in favour of its validity had passed away, the presumption in such case is very heavy in favour of adoption.236

Putrika putra

All the digests, lectures and treatises support the view that the practice of appointing a daughter as a putrika and of treating her son as putrika putra had become obsolete several centuries ago. When a person had two or more daughters, the appointment of one of them would give her primacy over the wife and the other daughters (not so appointed) and her son (appointed daughter's son) would succeed to the exclusion of the wife and other daughters and their sons and also to the exclusion of his own uterine brothers (i.e. the other sons of the appointed daughter). Whereas in the case of plurality of sons all sons would succeed equally in the case of appointment of a daughter, other daughters and their sons alongwith the wife would get excluded. It is probably to prevent this kind of inequality which would arise among the daughters and daughter's sons, the practice of appointing a single daughter as a putrika to raise an issue must have been abandoned when people were satistified that their religious feelings were satisfied by the statement of Manu that all sons of daughters whether appointed or not had the right to offer oblations and their filial yearnings were satisfied by the promotion of daughter's sons in the order of succession next only to the son as the wife and daughters had been interposed only as limited holders. It was held that the practice of appointing a daughter as a putrika to beget a son who would become the putrika putra had become obsolete.237

Relation of adoptee back to father

The principle of relation back applies only when the claim made by the adopted son relates to the estate of his adoptive father. This estate may be definite and ascertained as when he is the sole and absolute owner of the properties, or it may be fluctuating as when he is a member of a joint Hindu family, in which the interest of the coparceners is liable to increase by death or decrease by birth. In either case, it is the interest of the adoptive father which the adopted son is declared entitled to take as on the date of his death. It is not in consonance with the principle well-established in Indian jurisprudence, and that the relation back of the right of an adopted son is only 'quoad' the estate of the adoptive father. Moreover, the law as laid down therein leads to results which are highly inconvenient. When an adoption is made by a widow of either a coparceners or a separated member, then the right of the adopted son to claim properties as on the date of the death of the adoptive father by reason of the theory of relation back is subject to the limitation that alienations made prior to the date of adoption are binding in him, if they were for purposes binding on the state.238

The fiction that an adoption relates back to the date of the death of the adoptive father applies only when the claim of the adoptive son relates to the estate of the adoptive father. But where the succession to the property of a person other than the adoptive further is involved, the principle applicable is not the rule of relation back but the rule that inheritance once vested cannot be divested. The rights of an adopted son cannot be more than that of his adoptive father. Therefore it was held that if the plaintiff's adoptive father was alive in 1933 when the partition took place, he could not have obtained anything more than 1/3rd share in the family properties. Therefore it is beyond comprehension as to how the plaintiff could acquire a greater right than his adoptive father could have had if he had been alive on the date of partition and that he could have got if he had been adopted prior to that date. Thus the plaintiff's claim for a half share in the family properties was held unsustainable.239

Thus, transferee from limited owners, whether they be widows or coparceners in a joint family, are amply protected. But no such safeguard exists in respect of property inherited from a collateral, because if the adopted son is entitled on the theory of relation back to divest that property, the position of the mesne holder would be that of an owner possessing a title defeasible on adoption, and the result of such adoption must be to extinguish that title and that of all persons claiming under him. The alienees from him would have no protection, as there could be no question of supporting the alienations on the ground of necessity or benefit. And if the adoption takes place long after the succession to the collateral had opened and the property might have meanwhile changed hands several times, the title of the purchasers would be liable to be disturbed quite a long time after the alienations. To subscribe to a view of the law which leads to consequences so inconvenient is not possible.240

Relation of adoptee with natural family

In questions regarding succession and certain other matters, the law in the Punjab is contained in Section 5 of the Punjab Laws Act, No. IV of 1872. Clause (b) of that section provides that the rule of decision in such matters shall be the Hindu law where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act or has been modified by any such custom as is referred to in clause (a) thereof. Clause (a) provides that any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished and has not been declared to be void by any competent authority shall be applied in such matters. The position therefore that emerges is, where the parties are Hindus, the Hindu law would apply in the first instance and whosoever asserts a custom at variance with the Hindu law shall have to prove it, though the quantum of proof required in support of the custom which is general and well-recognised may be small while in other cases of what are called special customs the quantum may be larger. The position as it emerges from a comparison of the entries in the riwaj-i-am of 1865, 1911-12 and 1940 is somewhat confused and the (P&H) High Court therefore thought that the custom recorded in para 48 should be adhered to as Brahmins and Khatris did not accept the extreme position that a son given away in adoption was excluded altogether from succeeding in his natural father's family as recorded in 1911-12. This conclusion seems to be fortified by the statements of Brahmins and Khatis in 1911-12 that a son given away in adoption succeeded in the family of his natural father if he had no brother — though the High Court did not notice this part of the answer in the riwaj-i-am of 1911-12. The conclusion therefore at which Supreme Court arrived was that amongst Brahmins and Khatris of Amritsar district, a son given away in adoption can succeed to the property of his natural father only if there is no other son of the natural father; if there is another son he cannot succeed.241

Rights of adopted member

Adoption has the effect of transferring the adopted boy form his natural family into the adoptive family. It confers upon the adoptee the same rights and privileges in the family of the adopter as the legitimate son, except in a few cases. Those case relate to marriage and adoption and to the share on a partition between an adopted and an after-born son. The mere fact that adoption does not sever the tie of blood between him and members of the natural family will not take him out of the line of lineal descendants of the adoptive father.242

Right of adoptee to retain his interest in the erstwhile family for the purpose of succession is a matter of custom which if proved by production of agreement, succession can take place in accordance with the custom.243 In questions regarding succession and certain other matters, the law in the Punjab is contained in Section 5 of the Punjab Laws Act, No. IV of 1872. Clause (b) of that section provides that the rule of decision in such matters shall be the Hindu law where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act or has been modified by any such custom as is referred to in clause (a) thereof. Clause (a) provides that any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished and has not been declared to be void by any competent authority shall be applied in such matters. The position therefore that emerges is, where the parties are Hindus, the Hindu law would apply in the first instance and whosoever asserts a custom at variance with the Hindu law shall have to prove it, though the quantum of proof required in support of the custom which is general and well-recognised may be small while in other cases of what are called special customs the quantum may be larger. The position as it emerges from a comparison of the entries in the riwaj-i-am of 1865, 1911-12 and 1940 is somewhat confused and the High Court therefore thought that the custom recorded in para 48 should be adhered to as Brahmins and Khatris did not accept the extreme position that a son given away in adoption was excluded altogether from succeeding in his natural father's family as recorded in 1911-12. This conclusion seems to be fortified by the statements of Brahmins and Khatis in 1911-12 that a son given away in adoption succeeded in the family of his natural father if he had no brother — though the High Court did not notice this part of the answer in the riwaj-i-am of 1911-12. The conclusion therefore at which we arrive is that amongst Brahmins and Khatris of Amritsar district, a son given away in adoption can succeed to the property of his natural father only if there is no other son of the natural father; if there is another son he cannot succeed.244

Principle of ascertaining the powers of a son adopted by Hindu widow, to seek re-opening of partition are as under245 :

(i) A widow's adoption cannot be stultified by an anterior partition of the joint family and the adopted son can claim a share as if he were begotten and alive when the adoptive father breathed his last;

(ii) Nevertheless, the factum of partition is not wiped out by the later adoption;

(iii) Any disposition testamentary or inter vivos, lawfully made antecedent to the adoption is immune to challenge by the adopted son;

(iv) lawful alienation, in this context, means not necessarily for a family necessity but alienation made competently in accordance with law;

(v) A widow's power of alienation is limited and if — and only if — the conditions set by the Hindu Law are fulfilled will the alienation bind a subsequently adopted son. So also alienation by the Karta of an undivided Hindu family or transfer by a coparcener governed by the Banaras school;

(vi) Once partitioned validly, the share of a member of a Mitakshara Hindu family in which his own issue have no right by birth can be transferred by him at his will and such transfers, be they by will, gift or sale, bind the adopted son who comes later on the scene. Of course, the position of a void or voidable transfer by such a sharer may stand on a separate footing.246

Rights of members

In the case of ordinary joint family property, the members of the family have:

(1) the right of partition;

(2) the right to restrain alienations by the head of the family except for necessity;

(3) the right of maintenance; and

(4) the right of survivorship.247

A coparcener/member is entitled to maintenance so long as the family remains joint.248

Sole surviving coparcener

The legal position in regard to a sole surviving coparcener is as under249 :

(i) A sole surviving coparcener can dispose of the coparcenary property as if it were his separate property as long as he remains the sole surviving coparcener but not thereafter; and

(ii) any alienations made before a son is born to or adopted by him remain unaffected and the same cannot be objected to or challenged by the new coparcener.

It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as 'joint property' of the undivided family. The property which was the joint family property of the Hindu undivided family did not cease to be so because of the 'temporary reduction of the coparcenary unit to a single individual.'250

All persons lineally descended from a common ancestor including their wives and unmarried daughters constitute a Hindu undivided family which is the normal condition of Hindu society. There need not be at least two male members to constitute a Hindu undivided family. A Hindu undivided family can consist of a male Hindu, his wife and unmarried daughter. As against this the Hindu coparcenary is a much narrower body that the joint family.251

Single male

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.252 However it was also held that the property received by the assessee on partition did not cease to be joint Hindu family property only for the reason that there was no other member of the joint Hindu family at a given time. On the birth of a daughter, the Hindu undivided family came into existence because the daughter constituted a joint Hindu family with her father qua the ancestral property received by him on partition.253

Son in law

See under Illattom adoption

Suspicious adoption

Where the father of adoptee was aged about 30 years and had two daughters through his wife, it was observed that at that time he could not have possibly considered of not be-getting a son in future. There was nothing on record to remove the doubt a to why he at the age of 30 when his wife was living gave up all hopes of begetting a son and, therefore, would think of taking a boy in adoption.254

Young age of the adoptive parents, and prospect of having children, has to be noted. In the absence of special circumstances the only son being taken in adoption appears to be somewhat unusual and improbable, though it is pleaded that after loss of several sons during infancy, couple wanted to adopt a son. The plea of adoption can not be discarded only on the ground of the only son being given in adoption.255

Unborn child

A child in embryo is to be considered as a person in existence for certain purposes is a rule not peculiar to Hindu Law but obtains in other systems of jurisprudence, as well.256

The main object of adoption is to secure spiritual benefit to the adopter, though its secondary object is to secure an heir to perpetuate the adopter's name. Such being the significance of adoption, its validity shall not be made to depend upon the contingencies that may or may not happen. It was suggested that an adoption cannot be made unless there is certainty of not getting a son and that if the wife is pregnant, there is a likelihood of the adopter begetting a son and, therefore, the adoption made is void. When a son in his mother's womb is equated with a son in existence, vis-à-vis his right to set aside an alienation or to reopen a partition, the argument proceeds, the father cannot validly adopt, as from the date of conception the son must be deemed to be in existence. But there is an essential distinction between an alienation, partition and inheritance on the one hand and adoption on the other; his right to set aside an alienation hinges on his secular right to secure his share in the property belonging to the family, as he has a right by birth in the joint family property and transactions effected by the father in excess of his power when he was in the embryo are voidable at his instance; but, in the case of adoption, it secures mainly spiritual benefit to the father and the power to adopt is conferred on him to achieve that object. The doctrine evolved wholly for a secular purpose would be inappropriate to a case of adoption. Court should be very reluctant to extend it to adoption, as it would lead to many anomalies and in some events defeat the object of the conferment of the power itself. The scope of the power must be reasonably construed so as to enable the donee of the power to discharge his religious duty. Therefore, the existence of a son in embryo does not invalidate an adoption.257

The existence of a child yet unborn is a fiction created for the benefit of the child that is born with a view to protect its rights to property. The rule which is intended for the protection of the unborn is recognised in cases of succession. The after-born son was held entitled to the protection of his property rights which he was held to have acquired from the moment he was conceived by his mother by the application of the fiction that he should be deemed to have been in existence from that time. Thus decided cases only show that the application of the fiction is resorted to when it is necessary for the benefit of the child. It is purely by a fiction of law that an unborn son is deemed to be in existence under that system for the purpose of protection his rights after he is born. That this fiction of law is not of universal application is clear from the fact that there are well recognised exceptions in it e.g. :

(1) an unborn son could not be given in adoption to another and

(2) a person can adopt a son to himself although his wife is pregnant at that time.

This he would be entitled to do even if he was aware of the pregnancy of his wife at the time of the adoption. A fiction of law is created for a particular purpose, it can be applied and used for that purpose alone and extended no further. If the fictitious existence of an unborn son is recognised in law for the protection of his proprietary rights, it cannot obviously be applied to a case where such rights are not imperilled or do not arise for consideration. A son who has not come into existence will not be a member of the family for the purpose of levy and assessment of income tax.258

Although there is no authority in Hindu Law to justify the doctrine that a Hindu cannot make a gift or bequest for the benefit of an unborn person yet that doctrine has been engrafted on Hindu Law by the decision of the Judicial Committee, which has stood a great length of time and on the basis of that decision rights have been regulated, arrangements as to property have been made and titles to property have passed. In a proper case the maxim communis error facit jus may be applied.259 This doctrine has been altered by three Acts, namely Hindu Transfers and Bequests Act, 1 of 1914, the Hindu Disposition of Property Act of 1916 and the Hindu Transfers and Bequests (City of Madras) Act, 1921. The legal position under these Acts is that no bequest shall be invalid by reason only that any person for whose benefit it may have been made was not born at the date of the testator's death. This rule, however, is subject to the limitations and provisions contained in Sections 113, 114, 115 and 116 of the Indian Succession Act, 1925.260

Widow

An adoption by widow would not divest the adoptive mother of the ownership of property.261

A widow's power of alienation is limited and if— and only if— the conditions set by the Hindu Law are fulfilled will the alienation bind a subsequently adopted son. So also alienation by the Karta of an undivided Hindu family or transfer by a coparcener governed by the Banaras school.262

On a share being given to widow prior to coming into force of the Hindu Succession Act, 1956, she acquired limited interest. Property of her husband did not vest in her. If at that stage she would have adopted plaintiff, question would have been different and plaintiff could have challenged alienation if any made by her. However, while she was continuing to possess properties with limited interest, the Hindu Succession Act, 1956, came into force. In view of Section 14(1) of the Act she became absolute owner of the property of her husband. While continuing as absolute owner, she alienated properties. Even if she would not have alienated any property, she could not have been divested of those properties as the same vested in her absolutely and by adoption, plaintiff has no right to divest her in view of clear language of Section 12(c) of the Hindu Adoptions & Maintenance Act, 1956.263

Under the Hindu Law, the widows of a person inherit as a body or as a unit and not as tenants in common, though, after they have so inherited, they may, for convenience of enjoyment, divide the property between themselves. Interpreting Act XVIII of 1937 in the light of this principle, the intention of the Legislature must have been to give to the widows, where there is more than one widow, a unit of share along with the sons. That this must have been the intention will become clear from the proviso, which enacts that the widow of a predeceased son shall inherit in like manner as a son. Where a predeceased son has left more than one widow, it could hardly have been intended that these widows should claim a per capita division with the other sons of their father-in-law. Such a division would subject the shares of the other sons to diminution by the mere accident of their brother's death.264

The window after the introduction in the coparcenary could not be held to have become a coparcener, because one of the essential characteristics of a coparcener, namely, acquisition of interest by birth, is wholly wanting in her case, yet when the Legislature which was fully aware of the status of a Hindu widow under the Shastric Law chose to improve her status by conferring a new right on her under the Act of 1937, and with this avowed object clothed her with all the rights and concomitants of a coparcener's interest, it is futile to contend that the window could not be treated either as a member of the Hindu coparcenary or as having been conferred coparcenary interest in the property. Even though the widow is not a coparcener in the strictly legal sense of the term, the interest which she has is the same interest as her husband and that is the coparcenary interest with the only limitation placed on her by Section 3(3) of the Act of 1937, namely, that her interest would be the limited interest of a Hindu widow.265

A widow would be considered an ostensible successor to her husband unless it be known that her husband was a member of a joint Hindu family and the property over which mutation was to be made was joint family property.266

A full ownership conferred on a Hindu female under Section 14(1) of Hindu Succession Act, 1956 is not defeatable by the adoption made by her to her deceased husband after the Act came into force. When she has inherited the property of her husband as class-I heir, she is entitled to full ownership over the property of her husband; and, as such, because of the subsequent adoption, she will not be divested of her right.267

The widow though not a coparcener has a right to succeed to the property of her husband on his death after the enforcement of Hindu Women's Right to Property Act, 1937. She also has the right to alienate the property without any need to obtain the consent of other coparceners.268

Wife

The ancient Hindu Society has always placed the wife on a high pedestal. It is said that , "It is said, 'the house (building) is not the house'. The mistress of the house is said to be the house. A house without the lady of the house is worse than a dreary forest".

Manava Dharma Sastra or the Institutes of Manu with the Gloss of Kulluka, comprising the Indian system of duties, religious and civil, translated by Sir Willian Jones and collated with the Sanskrit Text by Grayes Chammey Hughten, Esq. Third Edition, Chapter 3 verses 55 to 60 read as follows:—

55. Married women must be honoured and adorned by their fathers and brethren, by their husbands, and by the brethren of their husbands, if they seek aboundant prosperity.

56. Where females are honoured there the deities are pleased; but where they are dishonoured, there, all religious acts become fruitless.

57. Where female relations are made miserable, the family of him who makes them so, very soon wholly perishes; but, where they are not unhappy, the family always increases.

58. On whatever houses the women of a family, not being duly honoured, pronounce an imprecation, those houses, with all that belong to them, utterly perish, as if destroyed by a sacrifice for the death of an enemy.

59. Let those women, therefore be continually supplied with ornaments, apparel and food at festivals and at jubilees, by men desirous of wealth.

60. In whatever family the Husband is contented with his wife, and the wife with her husband, in that house will fortune be assuredly permanent.269

A matrimonial alliance which is nurtured and sustained through love and affection is like a tender plant which withers away in the absence of sun and water for its growth. In the words of Sprat 'A great proportion of the wretchedness which has embittered married life, has originated in a negligence of trifles. Connubial happiness is a thing of too fine a texture to be handled roughly. It is a sensitive plant. Which will not bear even the touch of unkindness; a delicate flower, which indifference will chill and suspicion blast. It must be watered by the showers of tender affection, expanded by the cheering glow of kindness, and guarded by the impregnable barrier of unshaken confidence. Thus matured it will bloom with fragrance in every season of life, and sweeten even the loneliness of declining years'.270

The Hindu Law Texts and the important commentaries impose a legal personal obligation on a husband to maintain his wife irrespective of his possession of any property, whether joint or self-acquired. They recognize the subordinate interest of the wife in her married status. They also prohibit the alienation of properties by the husband which has the effect of depriving her and other dependents of their maintenance. They further treat her as a member of a Hindu joint family entitled to be maintained out of joint funds. The decisions of the various High Courts to the same line, recognize her subordinate interest in her husband's property, and enforce his personal obligation by creating a charge on his properties either self-acquired or ancestral. A wife, therefore, is entitled to be maintained out of the profits of her husband's property and, if so, under the express terms of Section 39 of the T.P. Act, she can enforce her right against the properties in the hands of the alienee with notice of her claim.271

According to Sastri's interpretation of Shastric Hindu Law the right to maintenance possessed by a Hindu Widow is a very important right which amounts to a charge on the property of her husband which continues to the successor of the property and the wife is regarded as a sort of co-owner of the husband's property though in a subordinate sense i.e. the wife has no dominion over the property.272

The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognized and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkaya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a preexisting right.273

Section 18 of the Hindu Adoptions & Maintenance Act, 1956, provides for maintenance to a Hindu wife, subject however to the two exceptions, carved out in sub-section (3) of section 18 of the Act, which extinguish the right of a Hindu wife to a separate residence and maintenance. Provisions of Sub-section (1) of the said section make it obligatory for the husband to maintain the wife during her lifetime. Her claim to maintenance is not forfeited even if she resides separately on account of any of the grounds mentioned in Sub-section (2) of the said Section. In other words, the obligation to maintain the wife would still remain on the husband even though the wife might be living separately from the husband until it is proved that the wife is residing separately from the husband not under any of the circumstances enumerated under Sub-section (2) of the said Section or is unchaste or has ceased to be a Hindu by conversion to another religion.274

But neither under the customary Hindu law, nor under the Hindu Marriage Act, 1955 nor under the Hindu Succession Act, 1956 nor under the Hindu Adoptions & Maintenance Act, 1956 is there any provision which gives a share to a wife in the joint family property held by her husband nor to a mother in the joint family property allotted to her son in a partition.275

Where a suit was filed by wife during life-time of husband and not as his widow, it was held that on the death of the husband, her status as wife and right to receive maintenance could not be affected for the purposes of deciding the suit and thus the suit was held rightly decreed for maintenance.276

Where transfer of property was effected in lieu of maintenance in terms of a deed it was held that such document compulsorily requires registration u/s 17 and 49 of Registration Act, 1908 and such unregistered document cannot be looked into for ascertaining the nature of possession.277

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 entitled to maintenance.278

Chapter 3 - Joint family and members

Part of Series: "Law of Joint Property and Partition in India"