NATURE OF LAW
Early concept of Law
Rule of Law
Equality before Law
CHAPTER 2
APPLICATION OF HINDU LAW
Persons to whom Hindu Law applies
People who have changed religion
Persons to whom Hindu Law does not apply
Extent of the application of Hindu Law
Application of law on Migration
Hindu Law now, not a law of all Hindus or of Hindus alone
Ancient Sources
Shrutis
Smritis
Commentaries and Digests
The Mitakshara
The Vyavhara Mayukha
The Dayabhag
Other Commentaries
Conflict of laws in the texts
Treaties on adoption
Customs
Modem Sources
Judicial Decisions
Legislation
Justice, equity and good conscience
Customs and Usages
What is Custom
Kinds of Custom
Essentials of custom
CHAPTER 4
SCHOOLS OF HINDU LAW
Mitakshara
Benaras School
Mithila School
Dravida or Madras School
Bombay or Maharashtra School
Punjab School
Dayabhag
Differences between the Mitakshara and Dayabhag school
Migration and the school
Doctrine of Factum Valet
MARRIAGE
(Alongwith the provisions of Hindu Marriage Act, 1955)
Nature of Hindu Marriage
Definition of Marriage
Eight Forms of marriage (Before 1955)
Approved forms
Unapproved Forms
Marriage under the old Hindu Law
Guardianship in marriage
Effect of marriage
Divorce and remarriage
Marriage under the Hindu Marriage Act, 1955
Nature of Marriage under the Act of 1955
Changes made by Hindu Marriage Act, 1955
Changes brought about by the Marriage Laws (Amendment) Act, 1976
Conditions for a valid Hindu marriage under the Act
Definition of sapinda
Computation of sapinda relationship
Guardianship in marriage
Marriage Ceremonies—Section 7
Proof of Marriage—Section 8
Restitution of conjugal rights—Section 9
Subsistence of marriage—A pre-requisite
Withdrawal from society
Previous cohabitation not necessary
Agreement of separation
Reasonable and just cause
Mode of execution of decree for restitution of conjugal rights
Relevance of the remedy
Judicial Separation—Section 10
Relevance of Judicial Separation
Characteristics of Judicial separation and its distinction from divorce
Grounds : Extra-marital voluntary sexual intercourse
Cruelty
Desertion
Constructive desertion
Wilful neglect and desertion
Conversion
Unsoundness of mind
Leprosy
Venereal disease
Renunciation of the world
Presumption of death
Additional grounds
Court may rescind the decree
Effect of judicial separation
Nullity of Marriage
Void Marriages
Voidable Marriages
(a) Impotency
(b) Unsoundness of Mind
(c) Consent obtained by force or fraud
(d) Pregnancy at the time of the marriage
(e) Distinction between void and voidable marriages
Divorce
Old Hindu Law
Modem law—Hindu Marriage Act, 1955
Grounds of Divorce—Section 13(1)
Adultery
Cruelty
Desertion
Conversion
Unsoundness of mind
Leprosy
Venereal disease
Renunciation of the world
Presumptive death
Non-resumption of cohabitation after the decree of judicial separation
Failure to comply with the decree of restitution of conjugal rights
Position of irretrievable break down of marriage
Additional grounds of divorce in favour of wife— Section 13(2)
Alternate relief in divorce proceeding
Divorce by mutual consent—Section 13-B
Necessary Ingredients
Petition for Divorce
No petition for divorce to be presented within one year of
marriage—Section 14
Object of the Section
Divorced person when may marry again
Legitimacy of children—Section 16
Punishment for Bigamy—Section 17
Punishment for contravention of certain other conditions for a Hindu Marriage—Section 18
Jurisdiction of court to decree and grant reliefs to which petition should be made—Section 19
Contents and verification of petition—Section 20
Power to transfer petitions—Section 21-A
Special provisions relating to trial—Section 21-B
Proceedings to be in camera—Section 22
Decree in Proceedings—Section 23
Reconciliation—Section 23(2)
Interim maintenance and expenses—Section 24
Object and scope of the section
Quantum of maintenance
Permanent alimony and Maintenance—Section 25
Court may rescind the order
Custody of Children—Section 26
Disposal of property—Section 27
Enforcement of and appeal from decrees and order—Section 28
Savings—Section 29
Doctrine of Factum Valet
CHAPTER 6
MAINTENANCE
Definition
Nature and extent of the right of maintenance—Two fold liability
Modern law
Persons entitled to be maintained
Wife
Widowed daughter-in-law
Maintenance of aged infirm parents and the children
Dependants
Other persons entitled to maintenance under prior law
Amount of Maintenance
Effect of a charge over the joint family property
SONSHIP AND ADOPTION
As amended by the Hindu Adoption and Maintenance Act, 1956
Kinds of sons
Adoption
Meaning of Adoption
Texts of Manu
Texts of Vashishta
Texts of Saunaka
Present law
Changes made by the Act
Essentials of valid Adoption
Who may adopt—Pre Law
Present law
Who can adopt
The capacity of a male Hindu to adopt
Consent of wife
Capacity of females to adopt
Changes brought by Personal Laws (Amendment) Act, 2010
Whether adoption is personal or for her husband
Other conditions for a valid adoption
Who can give the child in adoption
Consideration before the court
Who could be adopted—Pre Act Law
Who may be adopted (Present law)
The ceremonies for adoption and other essentials
Present Law
Datta Homam
Effect of adoption
Pre-Act Law
Dvyamushyayana or son of two fathers
Doctrine of Relation Back
Effect of adoption—Present Law
Right of adoptive parents to dispose of their property
Determination of adoptive parents
Annulling an adoption
Prohibition of certain payment
Doctrine of factum vnlet
CHAPTER 8
MINORITY AND GUARDIANSHIP
(Incorporating Hindu Minority and Guardianship Act, 32 of 1956)
Introduction
Changes made by the Act
Minority under Hindu law
Guardians and Wards Act, 1890 and the Indian Majority Act, 1875
Hindu Minority and Guardianship Act, 1956
Age of Majority
Applicability of the Act
Guardian—Meaning of
Karta Guardian
Natural Guardian
Natural Guardians under the Act
Disabilities to act as a Guardian
Effect of remarriage by widow
Natural guardian of an adopted son
Powers of a natural guardian
Compromise by natural guardian
Ackonwledgment of debt by the guardian
Family arrangements
Act must be done as guardian
Minor cannot be bound by personal covenants
Whether the delegation of authority by a natural guardian can be revoked?
Limitation of powers of natural guardian
Effect of such permission
Procedure for obtaining permission
Testamentary guardian—Section 9
Father
Widowed mother
Powers of testamentary guardian
Removal of a testamentary guardian
Guardians declared or appointed by the court
Who can apply for the appointment as guardian?
Guardian's under other enactments
De facto guardian
Powers of de facto guardian
Ad hoc guardians
Overriding effect of the Act
Overriding the pre-existing rules of Hindu law
INHERITANCE AND SUCCESSION
(GENERAL PRINCIPLES)
(Pre Hindu Succession Act, 1956)
Mitakshara Inheritence
General Principles
Modes of devolution of property
Applicable only to separate property
Inheritance never in abeyance
Males take absolutely, females only limited estate
Spes successionis
Doctrine of Representation
Succession per stirpes and per capita
Full blood to be preferred to half blood
Nature of property vis-a-vis obstructed and unobstructed heritage
Devolution under the Milakshara system
Order of Succession of heirs
Dayabhag Inheritance
General principles
Inheritance under the Dayabhag system
Doctrine of Religious Efficacy
Distinction between Mitakshara and Dayabhag law of inheritance
Exclusion from inheritance
Succession (As incorporated in the Hindu Succession Act, 1956)
Object
Main features of the Act
Order of Succession
Certain definitions under the Act
Overriding effect of the Act
Scheme of the Act
Intestate Succession
Devolution of interest in coparcenary property before Hindu
Succession (Amendment) Act, 2005
Section 6
Mitakshara Coparcenary
Coparcenary property
Rule of survivorship
Proviso to Section 6
Computation of interest of a deceased coparcener
Separated member of the Coparcenary
Devolution of interest in coparcenary' property under Section 6 of
Hindu Succession (Amendment) Act, 2005
Remaining anomalies
Comparative chart of women's inheritance right, under
Hindu Succession Act
Devolution of interest in the property of Tarwad, Tavazhi, Kutumba,
Kavaru or Illom
Succession to property of a male
List of heirs specified in class I of the Schedule
List of heirs in class II of the Schedule
Heirs under classes 3 and 4 of Section 8 : Agnates and Cognates
Computation of degrees (Sec. 13)
Failure of heirs : Escheat
Hindu woman's right to property
Section is restrospective
Property possessed by a female Hindu—Meaning of
Alienation by widow prior to this Act
Restricted estate—Section 14(2)
Effect of preliminary decree
Rules of Succession to the property of females
Order of succession and distribution
Property inherited from her father or mother
Property inherited from her husband or her father-in-law
Succession to Marumakkattayam and Aliyasantana
Succession to property of a male
Succession to property of female
General rules of Succession
Full blood preferred to half blood
Joint tenancy and tenancy in common
Right of the child in womb
Presumption in case of simultaneous death
Preferential right to acquire properly in certain cases
Special provision relating to dwelling houses
Right of residence was reserved
Disqualifications for heirs
Effect of disqualification
Escheat
Testamentary succession.
Property capable of its being disposed of by will
Under the Hindu Succession Act, (Sec. 30)
Changes brought about by Succession Act, 1956
UNCODIFIED LAW
JOINT FAMILY AND COPARCENARY
Early Law of Joint Family
Joint family—Origin, its nature and constitution
Members of joint family
Resumption of jointness
Burden of Proof.
Management of joint family
Hindu Coparcenary
When coparcenary comes to an end
Coparcenary and Joint family—Distinction
Coparcenary within coparcenary
Characteristic features of coparcenary
Characteristic features of Mitakshara Coparcenary
Classification of property
Joint family property or Coparcenary property.
Ancestral property
Property jointly acquired by the members of the joint family
Property thrown into the common stock
Property acquired with the aid of joint family funds
Separate or self-acquired Property
Salary and remunerations
Nature of separate property
Mitakshara classification of property
Obstructed heritage
Unobstructed heritage
Members of joint family not partners
Distinction between joint Hindu family, firm and partnership
Presumptions with respect to joint family property and self-acquired property
Rights of Coparceners before the Hindu Succession (Amendment) Act of 2005
(1) Right of common possession and common enjoyment
(2) Community of interest
(3) Right to joint possession
(4) Right to enforce partition
(5) Right to restrain unauthorised act
(6) Right to ask for account
(7) Right of alienation
(8) Right to set aside the alienation
(9) Right to maintenance
(10) Right to renounce interest in coparcenary property
(11) Right to survivorship
Right to survivorship when defeated
Effect of Section 6 of the Hindu Succession Act, 1956
Effect of Section 6 of the Hindu Succession (Amendment) Act, 2005
Manager or Karta of joint Hindu family
Meaning
Who may act as manager?
Position of Manager (Karta)
Powers of Karta
Duties and liabilities of Manager (Karta)
Alienation of Joint Family Property
Legal necessity
Benefit to estate
Alienation with the consent of all the coparceners
Alienation by father as 'Karta' of the family
Alienation by a sole surviving coparcener
No power to make a will.
Alienation without consent whether void and voidable
Insolvency of Karta, father or other coparceners
Insolvency of the other coparceners
Setting aside alienation
Alienation by the widow
Rights of Purchaser of Undivided Coparcenary Interest
Right to partition
Right to mesne profit
Right to joint possession
Coparcenary under Dayabhag law
Sunilarity between Dayabhag and Mitakshara coparcenary.
Points of distinction between the two systems
CHAPTER 11
DEBTS
Definition
A. Mitakshara Law
Nature of liability
Liability on separate property of a Hindu
Liability on undivided coparcenary interest
Liability on coparcenary property
Religious obligation
Meaning of Pious obligation
Effect of judicial decisions on the doctrine
Liability when arises
Duration of liability
Son's Liability to pay the Debt
Meaning of Avyavaharik debt
Avyavaharik Debt according to the ancient texts
Avyavaharik debts
Suretyship debts
Liability for the debt contracted before partition
Father's power of sale to satisfy antecedent debts
Antecedent Debts
Dayabhag law of debt
Rules of Dayabhag Law
Distinction between the Mitakshara and Dayabhag law of debts
Rule of Damdupat
CHAPTER 12
PARTITION
(Mitakshara Law)
Meaning of partition
Division of Right and Division of Property
Partition and Family Arrangement
Agreement not to partition
Property liable for partition
Provisions to be made before partition
Persons entitled to demand partition
Allotment of Shares
Partition how effected
Partition by mere declaration
Partition by will
Conversion to another faith
Marriage under Special Marriage Act, 1954
Partition by agreement
Partition by arbitration
Partition by father
Partition by suit
Exception
Effect of partition and burden of proof
Suit for partition
Who can sue for partition
When division in status takes place
Death of a minor during the pendency of the suit—Effect
Parties to the suit
The Partition Act, 1898
Special powers of father to effect partition
Partition should be complete
Partial partition
Partial partition as to persons separating
Effect of partial partition
Deemed partition
Re-opening of partition
Partition made once cannot be re-opened
Re-union
Effect of reunion
B. Dayabhag law
Persons entitled to partition
Allotment of Shares
Points of similarity and distinction between the Mitakshara and the Dayabhag laws
Marumakkathayam Law
Partition of a family house
STRIDHAN
Meaning of Stridhan
Stridhan according to the smritikars
According to Manu
According to Vishnu
According to Yagnyavalkya
Stridhan according to commentators
Stridhan according to judicial decisions
Salient features of Stridhan
Sources of Stridhan
Kinds of Stridhan and incidents thereof
Rights of women over stridhan
Stridhan, its succession under Hindu Succession Act, 1956
Difference between widow estate and life estate
CHAPTER 14
WOMEN’S ESTATE
Introduction
Sources of property
Meaning of woman's estate and its nature
Incidents of women's estate
Right of Disposition
Legal Necessity
Effects of alienation made without legal necessity and without the consent of reversioners
Reversioners
Who are reversioners?
Presumptive and remote reversioners
Nature of the reversioner's interest
Rights of reversioners
Compromise and family arrangement by the widow
Surrender
Meaning
Nature
Essentials of surrender
CHAPTER 15
GIFT
Introduction
Definition of Gift under Mitakshara law
Donor
Donee
Subject matter of gift
Acceptance
Formalities
When gift is complete
Void gift
Persons competent to receive gifts
Gift in favour of unborn person
Restrictions upon right to make a gift
When Gift freely and without restriction?
Revocation of gift
Dbnado mortis causa
Present law of gift
CHAPTER 16
WILLS
Codicil—Its meaning
Capacity to write will
Which property can be bequeathed
According to Mitakshara
According to Dayabhag
Revocation and Alteration of will
Other Rules relating to will
Bequest to an unborn person
When Will is void
Joint Bequest
Rule for construing the will
IMPARTIBLE ESTATES
Origin of impartible estate
Incidents of Impartible estates
Rules of Succession
Debts
RELIGIOUS AND CHARITABLE ENDOWMENTS
What are endowments ?
Kinds of endowments
Public and Private Endowments
Charitable Endowments
Subject of endowment and its proof
Mode of Creation of an endowment
Proof and essentials of endowments
Destruction of an idol
Idol is a legal person
Dedication to idol not in existence
Religious endowment cannot be revoked
Math—Devasthana—Dharmashala
Kinds of Math
Mahant
Position of Mahant
Extinction of the post of Mahant
Deva Sampatti
Shebait
Devolution of Shebait's office
Powers and obligations of Mahant and Shebait
Removal and replacement of Idol
Power to contract debt
Alienation of debutter property
Rights of founder
Dharmshala
Whether a female can hold the office of Mahantship or Shebait
Persons competent to file suits
Distinction between a Shebait and Trustee
Doctrine of Cypres
1. The Hindu Succession Act, 1956
2. The Hindu Minority and Guardianship Act, 1956
3. The Hindu Adoptions and Maintenance Act, 1956
4. The Hindu Marriage Act, 1955
5. The Hindu Widow's Remarriage Act, 1856
6. The Guardians And Wards Act, 1890
7. Family Courts Act, 1984
8. The Prohibition of Child Marriage Act, 2006
9. The Maintenance and Welfare of Parents and Senior
Citizens Act, 2007
10. The Marriage Laws (Amendment) Bill, 2010
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