BALLB (H) SYLLABUS
Family Law – II
PAPER CODE: 202
UNIT-I Joint Hindu Family
A. Mitakshra and Dayabhaga Schools
B. Formation and Incident under the coparcenary property under Dayabhaga and
Mitakshara: Extent and mode of Succession.
C. Karta of Joint Family: Position, Powers and privileges.
D. Debts – Doctrine of pious obligation and antecedent debts
UNIT-II Partition
A. Meaning, Division of right and division of property
B. Persons entitled to demand partition
C. Partition how effected; Suit for partition
D. Re-opening of partition; Re-union
UNIT-III Principles of Inheritance under Hindu and Muslim Law
A. The Hindu Succession Act, 1956 General rules of succession of a Hindu male
and female dying intestate under the Hindu Succession Act
B. Stridhan and Women’s estate
C. Principles of inheritance under Muslim Law (Sunni Law)
UNIT-IV Muslim Law of Property
A. Hiba: Concept, Formalities, Capacity, Revocability
B. Wasiyat: Concept, Formalities.
C. Waqf
, UNIT-I
Joint Hindu Family
Concept of Hindu Law: For the Hindus, law is a branch of dharma. Dharma pervades
throughout the Hindu philosophical thought and the Hindu social structure. Law in this sense is
considered as a branch of dharma. According to Manu “Dharma” is what is followed by those
who are learned in Vedas and what is approved by the conscience of the virtuous that are exempt
from hatred and inordinate affection. Further, Medhatithi, one of the early commentators on
Manu, says that the term “dharma” stands for ‘duty’. It signifies the sum total of religious, moral,
social and legal duties. From this aspect, it has been said that Hindu system is a system based on
duties.
Who are Hindus: In the earliest time the term ‘Hindu’ had a territorial significance. It only
denoted nationality. In fact the word ‘Hindu’ is of foreign origin. This designation came into
existence with the advent of Greeks who called the inhabitants of the Indus valley as “Indoi” and
later on this designation was extended to include all persons who lived beyond the Indus valley.
In the case of Yagnapurusholasji v. Vaishya,1 the Supreme Court elaborately considered the
question as to who are Hindus, and what are the broad features of Hindus religion. The Supreme
Court has observed that the word Hindu is derived from the word Sindhu, otherwise known as
Indus River. The Persians pronounced this word Hindu and named their Aryan brethren
‘Hindus’. Dr. Radhakrishnan has also observed that the Hindu civilisation is so called since its
original founders or earliest followers occupied the territory drained by the Sindhu (Indus) River
system corresponding to the North West Provinces in Punjab. This is recorded in Rig Veda, the
oldest of the Vedas. The people on the Indian side of the Sindhu were called Hindus by the
Persians and later Western invaders. That is the genesis of the word Hindu. Thus, the term Hindu
had originally a territorial and not a creedal significance. It implied residence in a well defined
geographical area.
Today, the term ‘Hindu’ has lost its territorial significance. It is also not a designation of
Nationality.
1
AIR 1966 SC 1119
,To Whom Hindu Law Applies:
Hindu law applies to all the persons who are Hindus but there is still no precise definition of the
term Hindu either in any statute or in any judicial pronouncement. However, the question as to
who is a Hindu can be understood in a different way. It can be taken as to whom the Hindu law
applies.
Hindu law applies to the following categories of persons:-
1. Any person who is a Hindu. Jain, Sikh or Buddhist;
2. Any person who is born of Hindu Parents;
3. Any person who is not a Muslim, Christian, Parsi or Jew and who is not governed by any other
law.
On the basis of the description of persons as above it can be said that following persons are
Hindus:-
1. Hindu by Religion: Following two types of persons fall in this category:
i) Followers of Hindu Religion: Any person who follows Hindu religion either by
practising it or by professing it is a Hindu. An attempt to define Hindu in terms of
religion was made by the Supreme Court in Shastri v. Muldas,2. The Court through
Gajendragadkar J. said that “beneath the diversity of philosophic thoughts, concepts
and ideas expressed by Hindu philosophers who started different philosophical
schools lie certain broad concepts which can be treated as basic. The first among
these basic concepts is the acceptance of the Vedas as the highest authority in
religious and philosophical matters. This concept necessarily implies that all the
systems claim to have drawn their principles from a common reservoir of thought
enshrined in the Vedas. The other basic concept which is common to the system of
Hindu philosophy is that all of them accept this view of the great world rhythm; vast
periods of creation, maintenance and dissolution follow each other in endless
succession. It may also be said that all the systems of Hindu philosophy believe in re-
birth and pre-existence”. This judgment of the Supreme Court gives a good working
elaboration of Hindu religion in positive terms. But it is equally true that any
definition of the ‘Hindu’ in terms of religion will always be inadequate.
2
AIR 1966 SC 1119.
, ii) Converts and Reconverts to Hinduism: Under the codified Hindu law any person
converted to Hinduism, Jainism, Buddhism or Sikhism is a Hindu. The Supreme
Court in Perumal v. Poonuswami,3 observed that a person may be a Hindu by birth
or by conversion. No formal ceremony of purification or expiation is necessary to
effectuate conversion. But at the same time a mere theoretical allegiance to the Hindu
faith by a person born in another faith does not convert him to a Hindu, nor is a bare
declaration that he is a Hindu sufficient to convert him to Hinduism. But, a bona fide
intention to be converted to the Hindu faith accompanied by conduct unequivocally
expressing that intention may be a sufficient evidence of conversion.
A person who is a reconvert to Hinduism, Jainism, Buddhism or Sikhism is also a Hindu. A
person who ceases to be a Hindu by converting to a non-Hindu religion will, again, become
Hindu if he reconverts to any of the four religions of Hindu.
2. Hindu by Birth: Following persons are deemed to be Hindus by birth:
I. When both the parents are Hindu: Children born of Hindu parents are Hindus. Such a
child may be legitimate or illegitimate. It is also immaterial that such a child does or does
not profess, practice or has faith in the religion of its parents.
II. When one Parent is Hindu: When one of the parents of a child is Hindu and he is brought
up as a member of Hindu family, he is a Hindu. It is clear by the explanation (b) of
Section 2(1) of Hindu Marriage Act, 1955 that child's religion is not necessarily that of
the father. F or instance a child is born of Hindu mother and Muslim father. The child is
brought up as a Hindu. Subsequently, mother converts to Islam. Nonetheless the child is
Hindu. In Ram Prasad v. Dahin Bibi,4 is a good example on the point.
3. Persons who are not Muslims, Christians, Parsis or Jews: The codified Hindu law lays
down that a person who is not a Muslim, Christian, Parsi or Jew is governed by Hindu law,
unless it is proved that Hindu law is not applicable to such a person. Those persons who are
atheists or who believe in all faiths or in conglomeration of faiths may fall under this class.
Under the codified Hindu law such persons will be Hindus for the purpose.
3
AIR 1971 SC 2352.
4
AIR 1924 Pat. 420.
Family Law – II
PAPER CODE: 202
UNIT-I Joint Hindu Family
A. Mitakshra and Dayabhaga Schools
B. Formation and Incident under the coparcenary property under Dayabhaga and
Mitakshara: Extent and mode of Succession.
C. Karta of Joint Family: Position, Powers and privileges.
D. Debts – Doctrine of pious obligation and antecedent debts
UNIT-II Partition
A. Meaning, Division of right and division of property
B. Persons entitled to demand partition
C. Partition how effected; Suit for partition
D. Re-opening of partition; Re-union
UNIT-III Principles of Inheritance under Hindu and Muslim Law
A. The Hindu Succession Act, 1956 General rules of succession of a Hindu male
and female dying intestate under the Hindu Succession Act
B. Stridhan and Women’s estate
C. Principles of inheritance under Muslim Law (Sunni Law)
UNIT-IV Muslim Law of Property
A. Hiba: Concept, Formalities, Capacity, Revocability
B. Wasiyat: Concept, Formalities.
C. Waqf
, UNIT-I
Joint Hindu Family
Concept of Hindu Law: For the Hindus, law is a branch of dharma. Dharma pervades
throughout the Hindu philosophical thought and the Hindu social structure. Law in this sense is
considered as a branch of dharma. According to Manu “Dharma” is what is followed by those
who are learned in Vedas and what is approved by the conscience of the virtuous that are exempt
from hatred and inordinate affection. Further, Medhatithi, one of the early commentators on
Manu, says that the term “dharma” stands for ‘duty’. It signifies the sum total of religious, moral,
social and legal duties. From this aspect, it has been said that Hindu system is a system based on
duties.
Who are Hindus: In the earliest time the term ‘Hindu’ had a territorial significance. It only
denoted nationality. In fact the word ‘Hindu’ is of foreign origin. This designation came into
existence with the advent of Greeks who called the inhabitants of the Indus valley as “Indoi” and
later on this designation was extended to include all persons who lived beyond the Indus valley.
In the case of Yagnapurusholasji v. Vaishya,1 the Supreme Court elaborately considered the
question as to who are Hindus, and what are the broad features of Hindus religion. The Supreme
Court has observed that the word Hindu is derived from the word Sindhu, otherwise known as
Indus River. The Persians pronounced this word Hindu and named their Aryan brethren
‘Hindus’. Dr. Radhakrishnan has also observed that the Hindu civilisation is so called since its
original founders or earliest followers occupied the territory drained by the Sindhu (Indus) River
system corresponding to the North West Provinces in Punjab. This is recorded in Rig Veda, the
oldest of the Vedas. The people on the Indian side of the Sindhu were called Hindus by the
Persians and later Western invaders. That is the genesis of the word Hindu. Thus, the term Hindu
had originally a territorial and not a creedal significance. It implied residence in a well defined
geographical area.
Today, the term ‘Hindu’ has lost its territorial significance. It is also not a designation of
Nationality.
1
AIR 1966 SC 1119
,To Whom Hindu Law Applies:
Hindu law applies to all the persons who are Hindus but there is still no precise definition of the
term Hindu either in any statute or in any judicial pronouncement. However, the question as to
who is a Hindu can be understood in a different way. It can be taken as to whom the Hindu law
applies.
Hindu law applies to the following categories of persons:-
1. Any person who is a Hindu. Jain, Sikh or Buddhist;
2. Any person who is born of Hindu Parents;
3. Any person who is not a Muslim, Christian, Parsi or Jew and who is not governed by any other
law.
On the basis of the description of persons as above it can be said that following persons are
Hindus:-
1. Hindu by Religion: Following two types of persons fall in this category:
i) Followers of Hindu Religion: Any person who follows Hindu religion either by
practising it or by professing it is a Hindu. An attempt to define Hindu in terms of
religion was made by the Supreme Court in Shastri v. Muldas,2. The Court through
Gajendragadkar J. said that “beneath the diversity of philosophic thoughts, concepts
and ideas expressed by Hindu philosophers who started different philosophical
schools lie certain broad concepts which can be treated as basic. The first among
these basic concepts is the acceptance of the Vedas as the highest authority in
religious and philosophical matters. This concept necessarily implies that all the
systems claim to have drawn their principles from a common reservoir of thought
enshrined in the Vedas. The other basic concept which is common to the system of
Hindu philosophy is that all of them accept this view of the great world rhythm; vast
periods of creation, maintenance and dissolution follow each other in endless
succession. It may also be said that all the systems of Hindu philosophy believe in re-
birth and pre-existence”. This judgment of the Supreme Court gives a good working
elaboration of Hindu religion in positive terms. But it is equally true that any
definition of the ‘Hindu’ in terms of religion will always be inadequate.
2
AIR 1966 SC 1119.
, ii) Converts and Reconverts to Hinduism: Under the codified Hindu law any person
converted to Hinduism, Jainism, Buddhism or Sikhism is a Hindu. The Supreme
Court in Perumal v. Poonuswami,3 observed that a person may be a Hindu by birth
or by conversion. No formal ceremony of purification or expiation is necessary to
effectuate conversion. But at the same time a mere theoretical allegiance to the Hindu
faith by a person born in another faith does not convert him to a Hindu, nor is a bare
declaration that he is a Hindu sufficient to convert him to Hinduism. But, a bona fide
intention to be converted to the Hindu faith accompanied by conduct unequivocally
expressing that intention may be a sufficient evidence of conversion.
A person who is a reconvert to Hinduism, Jainism, Buddhism or Sikhism is also a Hindu. A
person who ceases to be a Hindu by converting to a non-Hindu religion will, again, become
Hindu if he reconverts to any of the four religions of Hindu.
2. Hindu by Birth: Following persons are deemed to be Hindus by birth:
I. When both the parents are Hindu: Children born of Hindu parents are Hindus. Such a
child may be legitimate or illegitimate. It is also immaterial that such a child does or does
not profess, practice or has faith in the religion of its parents.
II. When one Parent is Hindu: When one of the parents of a child is Hindu and he is brought
up as a member of Hindu family, he is a Hindu. It is clear by the explanation (b) of
Section 2(1) of Hindu Marriage Act, 1955 that child's religion is not necessarily that of
the father. F or instance a child is born of Hindu mother and Muslim father. The child is
brought up as a Hindu. Subsequently, mother converts to Islam. Nonetheless the child is
Hindu. In Ram Prasad v. Dahin Bibi,4 is a good example on the point.
3. Persons who are not Muslims, Christians, Parsis or Jews: The codified Hindu law lays
down that a person who is not a Muslim, Christian, Parsi or Jew is governed by Hindu law,
unless it is proved that Hindu law is not applicable to such a person. Those persons who are
atheists or who believe in all faiths or in conglomeration of faiths may fall under this class.
Under the codified Hindu law such persons will be Hindus for the purpose.
3
AIR 1971 SC 2352.
4
AIR 1924 Pat. 420.
