Hindu Law (Part 2)

Hindu law

 

1. Make analytical study on Karta, Sevayet and Trustee.

 

Differences:

Subject

Karta

Sevayat

Mahant

Right

Power is not restricted only to such functions as the manager of the property possesses.

Sevayat acts as a manager of the temple and the deity.

He is religious and secular manager of the Math.

Ownership

Karta is a co-owner in the property he manages.

Sevayat has no ownership in the Devottar property.

Mahant has no ownership in the Math property.

Keep money after meeting the expenditure

He can keep in his possession the income from the joint property which is saved after meeting the expenditure.

Sevayat cannot keep any money in his possession.

Mahant cannot keep any money in his possession after expenditure.

Allocation of the property

He allots the different portions of the joint property to the different members.

He cannot allot any part of the Devottar property to others as he is not the owner.

 

Recovering any part of the property

If any member takes any item of the joint family property without permission, he can get him ejected.

Sevayat can file a suit on behalf of the idol to recover the property taken away.

Mahant can file a suit on behalf of the Math to recover the property taken away.

Accounts

Karta is not bound to keep an account of the income and expenditure of the joint family.

Sevayat must keep account of the wealth, income and expenditure of the endowment.

Sevayat is bound to keep account of the expenditure of the Math.

Binding laws

He is an unique creation of Hindu law. He is bound by customary law.

He is bound by the Charitable and Religious Trusts Act, 1920.

He is bound by the Charitable and Religious Trust Act, 1920.

Appointment

Senior most member of the family automatically becomes the karta.

Sevayat is appointed by the owner of the idol.

He is appointed by the founder.

Devolution

After the death of the Karta, the next senior most member becomes Karta.

Sevayat cannot give his office in devolution. The wish of the founder is final.

Mahant can choose his successor in some Maths. If there is no rule laid down by the founder, the general law of succession will be in force.

Termination of office

Karta loses his office after partition. Other members can remove a karta if they all consent.

Sevayatship ends by:

i) renunciation

ii) removal

iii) being disqualified

Mahantship ends by death, misconduct or other rules laid down by the founder.

Object of management

Karta manages the property for the benefit of family members as well as his own benefit.

Sevayat manages the property for the benefit of the idol.

Mahant manages the religious and secular work.

Residing in trust-property

Karta can reside in the joint family property and enjoy it.

Sevayat can reside in the temple and enjoy to the extent necessary.

Mahant can reside in the Math.

 

 

2. Suggestions relating to joint family property.

The Mitakshara and Dayabhaga differ on the law of succession and the law of joint family.

1. The son’s right by birth in the interest of his father in the joint family property should be admitted in all schools. It is a commendable rule of the Mitakshara. It deserves respect, it is submitted, by all the legal systems of the world. It gives economic security to every man from the day he comes to the world. Though he has a right to maintenance but this right is lost when he attains majority. The right acquired by the birth in the joint family property is a lifelong right.

2. The rule of survivorship should be reduced according to Dayabhaga. If a Hindu dies intestate leaving his son, son’s son and son’s son’s son, they are left in option whether they wish to take the property of the intestate jointly or individually. If they prefer the latter, they can divide it. Therefore, there is nothing objectionable if the law itself gives this property to them as ‘joint’.

3. Every adult coparcener should be given the right to alienate his interest in the joint family property without the consent of the other coparceners according to Dayabhaga.

4. Marriage by a member of the coparcenary under the Special Marriage Act, 1872 must not be itself a ground of his separation from the coparcenary. This is a strange rule for Hindu law. Law did not impose partition. If other members dislike his continuance in the joint family or if he did not prefer to remain in the joint family, there could be partition by them.

5. Conversion should not bring about automatic partition. Multi-religious families would be a boon to our society.

6. When an coparcener acquires back the joint property lost by the family, he should be compensated for his expenses and rewarded for his efforts but not by merely giving him some share more in that property than the others as the present law exists. The entire property should be taken to be the joint family property and the compensation should be made separately to the acquirer.

7. Where a coparcener has received any special education at the expense of the joint family funds, a reasonable portion of his income must go to the joint family fund. The Hindu Gains of Learning Act, 1930 which was passed by the British rulers owing to regard for their civil servants needs an amendment to this extent. One who gets special treatment at the cost of the joint family fund owes a special obligation to that fund.

8. The father should not possess the power to partition his sons against their wish.

9. If the adult coparceners agree, a female may become the karta of the joint family. Nowadays when a woman can become prime minister and can manage onerous public affairs, there is no reason to think that she cannot manage the affairs of her family. It should not be a necessary condition for the purpose that she must be a coparcenar.

10. It would be in the interest of clarity and certainty in law that it is made express that an adopted son is entitled on partition to a share equal to an aurasa son.

11. The succession of the property should be on the basis of remoteness i.e. the more remote a relative is, the less he or she gets.

12. An owner of a estate should not be allowed to alienate the whole of his property in his lifetime or by will. Because by this, he may jeopardize the benefit of his heirs. In this regard the Muslim law (the will shall be applicable to the extent of 1/3 of the whole property) should be adopted.


 

3. Essentials of valid adoption, consequence of valid adoption, effects of invalid adoption.

A man is born with three debts: debt to rishis, debt to gods and debt to ancestors. A man is absolved of the debt to rishis by the study of the Vedas, of the debt to gods by offering sacrifice and of the debt to ancestors by giving birth to a male child.

Adoption means legal affiliation by a person to himself of a child born of someone else. Only a male child has been considered competent by Hindu theologians for the offerings of the pinda. According to the law of the Smritis only a son could be adopted.

 

Essentials of valid adoption-

(i) the person adopting has the capacity and the right

(ii) the person giving in adoption has the capacity to do so

(iii) the person adopted is capable of being taken in adoption

(iv) the adoption is made in compliance with the other conditions mentioned in the law.

 

Adoption by male Hindu:

(i) Mental soundness

(ii) Age of majority

(iii) Consent of wife; except when- (a) Renunciation of world, (b) Conversion, (c) Mental unsoundness

 

Adoption by a female Hindu:

(i) Mental soundness

(ii) Age of majority

(iii) she must not be married; if married- (a) marriage is dissolved, (b) husband is dead, (c) renounced the world, (d) ceased to be Hindu or (e) declared by court to be of unsound mind.

Persons capable of giving in adoption:

Only the father has the right to give in adoption. Consent of the mother is necessary, except the mother – (a) renounced the world, (b) ceased to be Hindu or (c) declared to be unsound mind.

 

Persons who may be adopted:

(i) if he is a Hindu

(ii) if he has not already been adopted

(iii) if he is not married

(iv) if he has not completed the age of fifteen

 

Other conditions for a valid adoption:

(i) if the adoption is of a son, the adopting father and mother must not have a Hindu son, son’s son or son’s son’s son

(ii) if the adoption is of a son, the adopting father and mother must not have a Hindu daughter or son’s daughter

(iii) if a male is adopting a female, the adopting father must be 21 years older than the adopted

(iv) if a female is adopting a male, the adopting mother must be 21 years older than the adopted

(v) the same child may not be adopted simultaneously

(vi) the child to be adopted must be actually given and taken in adoption

Provided that the performance of datta homam shall not be essential to the validity of an adoption.

 

Consequence of valid adoption:

An adopted child shall be deemed to be the child of his adoptive father or mother for all purposes with effect from the date of the adoption and all the ties of the child in the family of his birth shall deemed to be served and replaced by those created by the adoption in the adoptive family.

(a) The child cannot marry any person whom he could not have married if he or she had continued in the family of his birth;

(b) Any property which vested in the adopted child before the adoption shall continue to vest

(c) The adopted child shall not divest ay person of any estate which vested in him.

(d) It cannot be revoked or cancelled.

Doctrine of relation back- SC has resurrected the doctrine of relation back in the cases of Sawanram and Sitabai. This means when a widow adopts a son, the adoption would be deemed to have taken place with effect from the date of the death of the deceased husband. The doctrine thus gave retrospective effect to adoption. An incidence of this retrospective effect was that the adopted son became entitled to all the properties which he would have got by inheritance or partition if he were in the adoptive family at the time of the death of his adoptive father.

 

Valid adoption not to be cancelled. There shall be no payment or reward for adoption (Murugappa v. Nagappa).

 

4. Principles of Dayabhaga and Mitakshara and differences regarding succession.

Differences between the two Schools in Succession-

Mitakshara- Property of a deceased Hindu is partitioned into two ways as the property is of two types- (a) Ancestor’s property, (b) Separate property.

Ancestor’s property is partitioned in accordance to the Rules of Survivorship. But a Separate property is partitioned to the descendants.

Dayabhaga- Property is of two types- (a) Joint, (b) Separate. The descendants inherits the property whatever type it is.

 

Mitakshara- In default of close heir, brother and immediate survivors inherit, the wife does not inherit.

Dayabhaga- If coparcener dies, his widow will get the property in default of a close heir but she cannot alienate.

 

Mitakshara- The order of heirs is decided by mereness of blood.

Dayabhaga- The order of heirs is decided by the competence to offer Pinda and Sraddho to the deceased.

 

5. What is Stridhana? Rights of a woman over her Stridhana.

6. Incidents of a widow’s estate. What is legal necessity and benefit of estate.

 

Property owned by a woman is classified in two categories, viz (1) Property of which she was an absolute owner (stridhana), and (2) property of which she was only a limited owner (woman’s estate).

There is no exact definition of Stridhana. All the property the woman earns can be called as Stridhana.

Manu gave a list of six kinds of property which fall under the term-

i) gift made before the nuptial fire

ii) gift made at the bridal procession

iii) gift made by the father-in-law and mother-in-law out of affection

iv) gift made by the father

v) gift made by the mother

vi) gift made by the brother

Yajnavalkya added three more to these six-

i) Gift made by her husband at the time of taking another wife

ii) Bandhu-dattam

iii) Shulka-price given to her in consideration in Asura form of marriage.

 

Right of a Hindu woman over Stridhana: Property which is owned by a woman as stridhana passed on her death to her heirs. She could also dispose of such property at her pleasure, at least in all cases during widowhood.

 

The properties other than the Stridhana are called Hindu woman’s estate or limited estate. This property after her death goes to the original heirs who are called the ‘reversioners’. Reversioners are those who would have inherited the property of the deceased if the widow was not there.

Two characteristics of Hindu woman’s estate-

i) it cannot be alienated except in limited circumstances (religious purpose, necessary or beneficial purpose).

ii) it goes to the reversioners – heirs of the previous full owner.

Hindu woman’s estate can be alienated in two cases –

i) religious purpose

ii) necessity or beneficial purpose

 

7. What is maintenance, who is entitled to maintenance, who are dependents, Hindu wife’s maintenance, Amount of maintenance.

Maintenance is a personal obligation upon the husband. A Hindu wife has a right to maintenance from her husband for her entire life. Dependants are entitled to maintenance from a Hindu male.

Who are dependents-

i. his father

ii. his mother

iii. his widow

iv. his son or son of his predeceased son or son of his predeceased son’s predeceased son, so long as he remains unmarried

v. his unmarried daughter

vi. his widowed daughter

vii. Any widow of his son or of a son of his predeceased son

viii. his minor illegitimate minor son

ix. his illegitimate unmarried daughter

 

A Hindu wife is entitled to be maintained by her husband during her lifetime. She is entitled to maintenance even if she living separately in the following cases-

a) if he is guilty of desertion

b) if he has treated her with cruelty

c) if he is suffering from leprosy

d) if he has any wife living

e) if he keeps concubine in the same house

f) if he has ceased to be a Hindu

g) if there is any other cause justifying separate living.

 

She is not entitled to maintenance if she-

a) has renounced the world

b) is unchaste

c) has converted

d) living separately without just cause

 

Amount of maintenance:

i) It shall be discretion of the Court. The guidelines which are to be followed by a Court, held in Ek Radheshwari v. Homeshwar Singh. Privy Council held in this case that the court shall consider the followings:

a) Status of the party (economic & social)

b) Reasonable wants of the claim. This includes five basic necessities

c) Justification of separate living

d) Economic condition of the claimant. Even if the wife got some properties from her in-laws. It was held in Kulbhushan v. Kunwar Rajkumari that ‘bounty received by the wife from her father is not her income’.

e) Number of maintenance holder.

 

A widow can file a suit for the followings: held in (Mahalakshama v. Venkata)

a) for declaration that she is entitled to maintenance from the property of her deceased husband

b) Can ask for the right of living in a portion of the property

c) Arrears of maintenance.

 

9. Endowment, position of Sevayat and Mahant, Appointment and removal of Sevayat and Mahants.

Endowment is the dedication or entrustment of property either for a religious purpose or for a charitable purpose or for both.

 

Requisite for a valid endowment:

i) The author of the endowment must be competent

ii) the object must be charitable or religious or both

iii) the dedication must be bona fide

iv) the property must be ascertainable

v) the object must be definite

vi) the dedication must not be in contravention of any law.

 

Who can endow:

A person who has the following three qualifications can endow-

i) Age of majority. A minor is totally incompetent

ii) Mental soundness-provisions of the Contract Act, 1872 shall be followed

iii) Right over property

 

Distinction between charitable and religious endowment-

Charitable endowment means all property given or endowed for the benefit of or used as of right by the community or any section thereof for the support or maintenance of object of utility to the said community or section such as rest houses, pathshalas, schools and colleges, houses for feeding the poor and institutions for the advancement of education, medical relief and public health or other objects of a like nature and includes institutions concerned.

Religious endowment means all property belonging to or given or endowed for the support of a religious institution or given for the performance of any service or charity connected therewith and includes the premises of the religious institution as well as the idols, if any, installed therein and any public charity associated with a religious institution or not, but does not include gifts of property made as personal gifts to the trustee or hereditary trustee or working trustee of such institution or to any service holder or other employee thereof.[1]

 

Endowment in favour of the idol:

The idol has been recognized by Hindu law as a juristic person. As a legal person it can own property. A temple is the property of the idol. Besides the temple, the idol may own other movable or immovable property. It is subject to the laws relating to the income tax and wealth tax. So, an endowment in favour of the idol is possible.

 

Management of Devottar:

The property of the idol is called ‘Devottar ’ property. The human agent who administers its affairs is called ‘Sevayat’. The literal meaning of Sevayat is ‘one who renders service’.

 

Rights of Sevayat:

i) Rights in general- He has the right to do all that is necessary, reasonable and proper for the benefit and protection of the property of the idol;

ii) Right in possession of Devottar- He has the right to the possession and custody of the Devottar;

iii) Right of remuneration- Ordinarily he has no right. But if the deed of the endowment or the custom gives him some remuneration for his service, he can take it.

iv) Right of residence- He has a right to live in the temple dedicated to the idol;

v) Right of reimbursement for expenses- He has the right to reimburse for the expenses that he incurs from his purse for the acts authorized regarding the Devottar and the idol;

vi) Right of litigation- He can file a suit for the benefit of the idol or the Devottar. If any suit is filed against the idol or the Devottar, he has the right to defend it on behalf of the idol;

vii) Right to defend Sevayati rights- He can sue to obtain Sevayati rights and if there is any challenge to such rights, he can defend them.

viii) Right to borrow money- He can borrow for the purpose of the idol or its property.

ix) Right to alienate Devottar- The property of an endowment is res extra commercium. Ordinarily it cannot be alienated. But if it is necessary or benefitted for the idol, he can alienate it.

In Hunoomanpersaud v. Mst. Babooee- The Privy Council held that the Sevayat of an idol has the same powers in respect of the alienation of the Devottar as the manager of an infant in respect of the property of the minor ward.

 

Disabilities of Sevayat:

i) Levy of temple fees- He cannot levy fees on the general public for entry into the temple.

ii) Removal of idol- He cannot remove an idol in a public temple at his will. The worshippers may by unanimity remove it to a better place.

iii) Appointment of successor- He cannot appoint his successor. This is the privilege of the founder.

iv) Sale of office of Sevayat- He cannot for his personal benefit transfer his right to manage the idol.

v) Alienation of deity or temple- He cannot alienate it for a pecuniary benefit.

vi) Secularization of endowment- He cannot convert the religious endowment into a secular one.

 

Duties of Sevayat:

i) to keep accounts of the Devottar

ii) to discharge duties personally- He cannot delegate his duties to any other person.

iii) Not to purchase Devottar- He cannot buy it for himself or benami.

iv) Not to claim Devottar as personal property-

v) Not to embezzle Devottar- He cannot make use of the idol’s property for his personal purpose.

 

Comparison between Sevayat and Mahant-

Temple

Math

i) Manager is called Sevayat

i) Manager is called Mahant

ii) Sevayat is in the position of a trustee as regards temple property

ii) Property may vest in trustees other than Mahants

iii) By virtue of his office, the Sevayat is the Administrator of temple property

iii) A Mahant’s functions and duties are regulated by custom

iv) Devolution of office of the Sevayat depends upon the terms of the deed or will by which the endowment is created; failing that, succession follows the line of inheritance from the founder

iv) Succession of the office of the Mahant depends upon the rules of the Math.In some, the holder may nominate his successor, or he may be elected by all the members of the math.

 

10. Rules common to gifts and wills, Define gift, define will, gift to unborn person.

Rule-1: a benignant construction should be adopted. If the real meaning and intent of the document can reasonably be ascertained from its language (although such language may be grammatically or technically imperfect), that meaning is to be enforced to the extent allowed by law.

Rule-2: It is perfectly legal to create a life-estate or successive life-estates, provided that the done is a person capable of taking the property under the gift-deed or the will.

Rule-3: Where a gift or bequest is made to a person who is not in existence at the date of the gift or will, such gift or will does not take effect.

Rule-4: If a gift or a bequest is made to a class of persons, with regard to some of whom it fails, such a gift or bequest fails in regards to these persons only, and not in regards to the whole class.

Rule-5: If a gift or bequest fails, any subsequent gift or will also fails.

Rule-6: If there are independent and alternative gifts or bequests, of which one is good, and the other is void, the former takes effect and the latter to be disregarded.

Rule-7: If, by the terms of a deed or will, an absolute estate of inheritance is created in favour of a person, any subsequent clause purporting to restrict that interest would be invalid, and the donee would take an absolute estate, as if such clause was not contained in the document.

Rule-8: If property is given absolutely to a person, but the gift-deed or will contains a direction that it shall not be alienated or partitioned, or that it shall be applied or enjoyed in a particular manner, such a direction s inoperative, and the donee takes the property, as if no such direction was contained in the document.

Rule-9: If a gift or bequest is made to two or more donees or legatees, and they take such a gift or bequest as tenants-in-common, the share of each person will pass, on his death, to his heirs by succession. If, however, they take as joint tenants, the undivided interest passes, on his death, by survivorship.

 

11. Kinds of guardians – natural, testamentary, appointed by court. Hunooman Persaud case.

 

12. Joint family property.

 

Mitakshara School -

Composition of joint family–

A joint family is composed of all the male members, wives and unmarried daughter, widow till she marries again and adopted child. Illegitimate child is not a member. Those who are sapinda can form joint family. Sapinda is created in three ways:

i) by birth

ii) by marriage

iii) by adoption

A joint family lasts till a single male member is alive and property is undivided. There are two types of members in a joint family – (i) Copacenar, and  (ii) Ordinary member

 

Characteristics of a coparcenar –

i) right to father’s property by birth, male descendant up to four generation

ii) they can demand for partition from father’s property at any time (Rani Sartajkumari v. Devraj)

iii) community in ownership: till partition, each member has got membership in entire property.

iv) As a result of co-ownership, possession and enjoyment is common. No coparcenar can claim a certain portion.

v) No alienation is possible except in two cases – a) necessity and b) benefit

vi) Interest of one deceased coparcenar lapses to the survivors.

 

Property which are considered as joint family property-

i) personal property: which a man inherits from his father, his father’s father, his father’s father’s father.

ii) Acquisitions with the help of joint family property

iii) Joint acquisition without the help of joint family property

iv) Property blended with joint family property

v) Recovered joint family property

vi) Share allotted on partition: it has dual character, joint and separate property

vii) property held by sole-surviving coparcenar: he can alienate it

viii) Impartible property: It revolves on the primogeniture, he who is eldest becomes the owner.

ix) Spes successionis – A mere right to inherit.

 

Dayabhaga school

 

Definition and composition is the same in both the schools.

Differences –

i) No right by birth whether self-acquired or ancestors. He gets right by death of father by inheritance. This is why inheritance is called ‘obstructed heritage’.

ii) Coparcenars amount collateral (equal share)

iii) Female can be coparcenar- But a coparcenar may not form with only the female members.

iv) Coparcenary can only be inherited from the paternal line

v) Coparcenary is based on sapinda relationship

vi) Tenancy-in-common

vii) no survivorship: share is fixe and not subject to fluctuation

viii) Full power of disposal of one’s own interest

ix) can alienate even without the consent of other coparceners

x) son cannot prevent his father from alienating property

xi) Son and daughter both inherit but daughter cannot alienate.

 

Alienation of personal and joint family property –

Dayabhaga allows alienation of joint property in necessity and benefit even without the consent of the coparcenars. But Mitakshara does not allow alienation without the consent of the other coparcenars even it is for necessity or benefit.

 

Who can alienate-

i) coparcenars in body

ii) coparcenar in his individual capacity

iii) the karta

iv) the father

 

Legal necessity-

Not all the necessities are legal. In Rani v. Shanta Bala Devnath – Legal necessity does not mean actual compulsion. It means pressure upon the estate which in law may be regarded as serious and sufficient.

Example-

a) maintenance of members

b) marriage ceremony

c) thread ceremony

d) funeral of a member

e) defence of status of a member in litigation (from a criminal charge)

f) payment of govt. loan and taxes

g) repayment of loan for family

 

Benefit of the estate-

a) Preservation of estate from extinction

b) Defence of property against hostile litigation

c) Protection from inundation (deterioration) and similar circumstances

d) Sale of property for pucca house



[1] Definition given in the Rajasthhan Public Trusts Act, 1959 : may be taken as a model for the understanding of these endowments.

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