MISC HINDU LAW

HINDU LAW

CHAPTER-16

• MISC 

(i) Factum, valet

(ii) Gains of learning Act 1930

(iii) Dandupat              

(iv) Sapinda

(v) Legal Necessity 

(vi) Benami Transaction 

(vii) Apratibandadaya and saprati bandadaya (Heritages) 

(viii) Half,FuIl and uterine blood

(ix) Agnates, Cognates

(x) Per capita, per stifpes  

(xi) Sapinda, samanodak and bandhu

(xii) Saudayika, Non-Saudayika. 

(xiii) Satapadi

(xiv) Dasi putra-

(xv) Escheat 

MISC

(i) Factum Valet: 

This doctrine was enunciated by Jimuthavahana in his Dayabhaga. Mitakshara has also recognised it. It means that when the fact is accomplished, that is, when the act is done and completed, it is legal and binding, despite contravention of 100 texts. 

The doctrine applies where there is moral obligation, not where an act is legally prohibited. The Hindu texts prescribe the rule that consent must be taken of the Guardian for marriage. If the consent is not taken, then merely on that ground marriage will not be invalid. The marriage is valid when done.,How ever if consent is obtained by fraud or force then, marriage will be voidable. Similarly, if the age for; v marriage is less than 21 to husband, 18 to wife, the doctrine of Factum valet applies and the marriage is valid 

If Father wants to sell his property the consent of sons was necessary according to Jimutavahama, but if sold it was saved by Factum valet. Derrett, a modern Hindu law critique also refers to this and shows how this is applied in Acts of Parliament, on Hindu law. 

The doctrine does not apply where there are mandatory prohibitory provisions regarding 

1) Capacity to give and take in adoption 

2) capacity for marriage restrictions regarding Sapinda. prohibited degrees. Marriage when the wife living. 

(ii) Gains of Learning Act 1930. 

Before the passing of this Act the position was that, income earned by a member of a joint family became the joint property if the training was at the expense of the joint family property vidhyadhana. However, the income of member by personal labor and skill after the ordinary education from the joint family property did not become joint family property. 

Leading Cases: 

1) 1CS Officer’s Case. (Gokulchand V. Hukumchand) 

2) Astrologer’s Case. 

3) Banker’s Case. 

4) Dancing girls Case-these had created doubts. 

In ICS officer’s case the officer was trained at the expense of the joint Hindu family. Held the salary of the I.C.S officer was part of the property of the family and hence was liable for attachment. 

In Methuram V. Rewachand ordinary education was given to the coparcener. Later he acquired properties. Held, this was not joint family property. To remove the doubts, the gains of learning Act was passed with retrospective effect. 

According to it, all acquisition of property made subsequently by means of learning, whether such acquisitions is by ordinary or extraordinary result of such learning, they are separate property. Learning means education whether elementary, scientific, special or general training of any kind to pursue any trade, industry profession or avocation in life. Hence under this Act whether the learning has been wholly or partially imparted by joint family property or not, the gains of such learning form a separate property of the acquirer and not joint family property. (Narayana Swami v Ramkrishna). 

(iii) Rule of Dandupat. 

This rule of old Hindu Law according to smritis stated that the amount of interest recoverable at any one time should not exceed the principal amount. Hindu law provided no ‘period of limitation for the recovery of debts. Hence, a restriction had been imposed on the amount of interest recoverable. This restriction is the Dandupat Rule or (Dwiguna Rule) 

Application of it however is to be understood with reference to place, parties and transactions 

1) It was applicable in some places in India like Bombay, Calcutta etc. 

2) As regards persons the rule applied where both the parties were Hindus or enough if a Hindu the creditor may be Mohamedan or Christian. 

3) It applies to secured and uusecured debts. 

The creditor could recover interess for 3 years. But where the rule applied the creditor could not a any one time recover more than the principal amount. There is not much relevance of this today as the Limitation Act has prescribed the period of limitation. 

(iv) Sapinda: Etymologieally, it means ‘same cake’ 

It means ‘One of the same pinda’. Pinda is the ‘cake’ or ‘Ball of rice’, offered at the Sharda ceremony. It signifies the relation connected by the same body (Mitakshara) or through a funeral obligation (Dayabhaga). 

“Two persons are related by “sapinda” if they are connected by the same genes according the Vigneshwara. This relationship is special to “Sagotra” person 

[Also refer for details Ch-14.11] 

According to Mitakshara the relationship extends up to 5 th degree in the mother’s side and the 7 th degree on the father’s side. 

The Hindu Marriage Act prescribes as 3 degrees on mother’s side and 5 degrees on Father’s side. Hence, one is the sapinda of the other where one is the common lenial ascendent within the limits stated above. 

(v) Legal necessity: 

This has special meaning and significance in the field of 

1. Karta’ power of alienation 
2. Mahunt or Shebait’s right of alienation, 
3. Guardian’s power of alienation and 
4. Widows limited estate’s alienation (the latter abolished under Sn. 14 Hindu Succession Act). 

It is the touchstone to test whether an alienation is valid or not. 

The leading case is Hanuman Prasad’s case. The power to j/ffiienate was explained by the court. 

Another leading case-.Kali Shankar Vs. Dhirendranath. Legal Necessity has a special technical meaning 

1)       Monies paid towards arreas of revenue 

2)       Money spent in defending a suit. 

3) Repairs effected to building etc. 

4) Religious and charitable purposes. 

5) Performance of funerals, shradha. 

6) Payment of debts due. 

7) Expenses for marriage of son or daughter. 

8)       Benefit of the estate 

Any expenses incurred to safeguard the property and what a prudent man would have done come under benefit of the estate, that is joint family property. 

Leading Case: Muraraka Properties V. Beharilal (Transfer of properties by 8 coparceners to a company, in which they were directors, was held valid and was for benefit of the estate) 

Sale of old house, expenses to improve agricultural production, mortgage of property for family trade or business etc. are examples. 

(vi) Benarni Transaction: 

It means without name , not own name. The reason for using such a name is 

1) the luck which some names may bring. 

2) to conceal family affairs from public eye. A person buys property from his own money but in other names, he may buy in his own name but transfer it to some other name without any idea of benefiting him. The other person is Benamidar. 

It is not a sham transaction; but is legally enforceable.Whether a person is Benamidar or not depends on 

1) the source of money 

2) Possession of property 

3) The position of the party  

4) Motive and circumstances.  

5) The conduct of the parties 

6) Custody of title deed, etc. 

In such transactions effect must be given to real fact and not to the-benami title. 

Ex :- A obtains a money decree against B; Later in execution, B ‘s property is sold, C buys it in the name of D. D obtains a certificate of sale from the court. D cannot sue C for the property. 

Innocent bonafide purchasers for value (transferees from Benamidars) are protected, if they had no notice. A benami transaction which is fraudulent to defeat creditors, or one which is opposed to public policy is void. The leading case is Laxman V. Kalicharan. Here the privy council explained a Benami transaction. A held out that his wife W was the owner of immovable property called ‘k’ as she had bought it from her Stridhana. When A died, W sold the property to D who bought bonafide for value. A’s son S, sued D to recover the property. Held, S could not recover. The bonafide purchaser was protected. 

This principle is also in Sn. 41 Transfer of property Act. 

Prohibition of Benami:- 

The benami Transactions (Prohibition) Act 1988 has prohibited Benami transaction in Sn 3(1). 

Exception : Property purchased by a person in the name of his wife or unmarried daughters, for their benefit. Further whoever enters into Benami transaction is punishable. No suit or claim by the real owner will be entertained by the courts. No defence of benami is also not entertained. Such property may be acquired by the state. 

(vii) Aprathibandadaya and Sapratibandadaya: 

These are the two modes of devolution of property. According to Mitakshara, the wealth of the father becomes the property of his son, son’s son and son’s son’s son . This is unobstructed heritage. This extends to 3 derees from the common ancestor. Here, there is no obstruction in the heritage and hence, it is  called Apratibada(unobstructed). 

Example 

1. Father, daughter, daughters son etc, the right of the daughter’s son is obstructed by the link. This is Saprathibanda. 
2. X, inherits certain property from his brother B. X has two sons Y and Z. Such a property is obtruded heritage. Here Y or Z cannot acquire an interest by birth. For the accrual of the right the property is obstructed by X. 

Only agnates (male ascedants) property is ancestral, according to Mithakshara coparcenary. The leading cases are 

(i) Venkayyamma V Venkataramanayyamma. 

ii) Arunachala V. Muruganatha. 

(viii) Half Full and uterine blood. 

The Hindu Succession Act 1956, has defined in Sn.3 Half-blood Full blood, and uterine blood. 

Full blood: Two persons are related to each other by full blood when they are born to a common ancestor by the same wife. 

Half-blood : Two persons are related by half-blood when they are born to a common ancestor but by different wives. 

Uterine blood: Two persons are related to each other by uterine blood, if they are born to a common ancestor, but by different Husbands. 

Importance: The General provisions relating to succession, of the Hindu succession Act), have in Sn.18 provided for ” preference of Relationship”. Hence, relationship by Fau blood is preferred to that of half-blood. 

E.&D died leaving two full sisters, two half-brothers, and a alt sister. Question was whether full sisters would exclude half-brothers? Held, full sisters excluded two half-brothers and of course half-sister. Hence, two full sisters were preferred. 

(ix) Agnates, Cognates: 

According to the Hindu Succession Act. 1956. 

Sn 3 (a) Agnate: means a person related by blood or adoption wholly through males. 

Sn. 3 (c) Cognate: means a person related by blood, or adoption but NOT wholly through males. There is a female link. 

Here related means related by legitimate kinship Sn 3(j) 

Importance:- Sn. 12 of the H.S.Act provides for order of succession among agnates and cognates.. The Rules are: 

Rule 1: Of two heirs, the one who has fewer or no degree of ascent is preferred. 

Rule:2 Where the number of degrees of ascent is the same or norie, that heir is preferred who has fewer or no degrees of descent. 

Rule:3 Where neither heir is entitled to be preferred to the other under Rule 1 or 2, they take simultaneously. 

Degrees: The order of succession among agnates or cognates is counted from the “intestate” 

The “intestate” is counted as one and then degree of ascent 2 (or descent) is computed Every generation is one degree for purposes ofcalculation. 

General rules of succession (Sn.8): The property of Hindu male dying intestate, the devolution is: 

(i) Firstly on class 1 heirs. 

(ii) Secondly, on class 2 (if there are no class 1 heirs) 

(iii)     Thirdly on the agnates of the deceased. 

(iv)     Fourthly on the cognates, if there are no agnates. 

Thus, the share of agnates or cognates is determined  by applying these provisions of the Act. 

Examples: 

1. F dies leaving his two wives Wl, and W2, sons SI and S2, daughters Dl and D2. 

           Here, Wl and W2 – both get one share. Hence, the property is divided into five shares. 

     2. F dies leaving behind father’s brother’s son’s son K, and Sister’s daughter’s son M. K is an agnate. M is a cognate. Agnate K is preferred to M. 

     3. F dies leaving behind his Father’s elder brother’s son S, and Fathers younger brother’s son’s son’s. S (two degrees) is preferred to B three degrees.  

(x) Per capita , Per Stirpes: 

Per capita means “Per head”: Per Stirpes means ” Per branch”: 

These are used to denote, how the shares are allotted in 

Mithakshara coparcenery. As between sons of a coparcenery, they take per capita but the grandson’s take their share per stirpes 

GF 

Fl ………………….. …4 ………………………. F2 

SI S2       ,. S3 S4 

The text of Yagnavalkys says “Among grandsons, the allotment of shares is according to the fathers”. This recognizes the doctrine of representation. 

In the above illustration: GF is the propositus. Fl and F2 take per capita, that is, equally. But, the grandson’s get by per stirpes- that is, by branch. SI and S2 take per stirpes of what Fl gets. Hence Fl branch takes per capita that is 1/2 and SI and S2 by per stirpes. (1/4 each). These have been recognized by the Hindu succession Act. Further, while dealing with succession to males in Sn. 10, the Hindu Succession Act has provided for distribution of property among class 1 heirs. 

Rule 3 provides that the heirs in the branch of each predeceased son or each predeceased daughter of the intestate, Shall take between them one share.(that is , on the basis of Representation). Hence, the primary heirs take per capita. Then each son and daughter in that wing is entitled to one share and mother gets one share. In the branch, of the predeceased son’s the heirs in each branch take by stirpes. 

To this extent the rules is recognized. Hence, per capita and per stirpes help to determine, the exact share each heir is entitled to, in the coparcenery, on the demise of the propositus. 

(xi) Sapinda, Samanodaka, Bandhu, 

Mithakshara prescribes three classes of heirs :- 

(i)       Sagotra’ Sapinda. 

(ii) Samanodaka. 

(iii) Bandhu or Binnagotra Sapinda. 

The order of preference is also in the   same order, 

(i) Sagotra Sapinda are: 

                a. Propositus’s six male descendants and six male ancestors in the male line. 

                b. The six male descendants of each of these six ancestors. 

                    c.    The wives of all these male Sapinda. and       

                    d.   daughters of Sapinda, before their marriage if they are within the, The degree. All these are Sapinda. 

ii) Samanodaka are: 

         a. the male descendants and ancestors from the 8th to 14th degree including the propositus. 

         b. the male descendants from the 8th to the 14th degree of his first six male ancestors, and, 

         c. All the male descendants in the male line within 14 degrees of 

his male ancestors from 8th to the 14th degree. In the absence of Samanodaka, the estate devolves on Bandhu. 

(iii) Bandhu :- 

Bandhu”has a distinct and technical meaning, and, signifies ” Binnagotra Sapinda” Bandhu are the Sapinda, related through a female, being within 5 degrees from the common ancestor(including him). 

There are three classes : 

           1. Atma Bandhus.  

           2. Pitru Bandhus and 

           3. Matru Bandhus. 

Inheritance: 

Two tests are applied to determine whether a Bandhu is entitled to inherit: 

1. test of degree and 

2. test of mutuality. 

In Ramachandra Mutand V. Kotekar it was held that P who claimed through his mother, but was binna gotra Sapinda beyond 5th degree could not inherit. 

(xii) Saudayika, Non Saudayika 

1. “Stridhana” is married woman’s private property (peculium). According to Maine, it is the settled property of the married woman, incapable of alienation by her husband. 

In stridhana, the woman has :

1. absolute power of alienation, and 
2. By succession, her property goes to stridhana heirs after her death. Saudaya=received from affection 

2. Saudayika : smruti of Katyayana says : That which is obtained by married woman, or by a maiden in her father’s house from her brother or parents, is saudayika. Property got by “Labdam”, “Proptam” and “dattam”. Strictly speaking, saudayika was the property got by gifts from near relatives of the woman in which she had absolute rights. It was part of her stridhana. 

But, if the gift was from strangers, it was subject to husband’s control and hence Non saudayika. Further, widows limited estate was non-saudayika. Leading cases are: Raj am ma V. Vaj ravel u chetti Gajanana yeswant V. Panduranga govind. 

Hindu Succession Act 1956; Sn.14 has abolished any such distinction. All property covered under Sn. 14 is her-absolute property. 

Sn.14 says; property means property acquired by a female Hindu by inheritance, partition, maintenance, gift from any person before, at or after her marriage. It includes whatever she earns by her own skill or exertion or by purchase, etc., and also includes any property- held by her as stridhana before 1956. 

Hence, the subject saudayika is only of academic importance.

(xiii) Saptapadi : 

The Hindu Marriage Act has prescribed various conditions of valid Hindu marriage. 

One such condition is the observance of ceremonies of the marriage Sn. 7. provides that the marriage should be solemnized according to the customary rites and ceremonies of either party to the marriage. 

When Saptapadi is part of the ceremony, the marriage becomes complete and binding, when the 7th step is taken, by the bride and the bridegroom, before the sacred fire. 

Saptapadi is therefore optional. However, it should be performed if it is part of the customary rites and ceremonies of the parties. 

In Ram Singh V. Sushila Bai, the Supreme Court declared the marriage as void, as Saptapade which was a common rite of the marriage had not been performed by the parties. 

(xiv) Dasi putra : 

He is the son of a Hindu concubine, “Dasi”. Such a person is the illegitimate son of a brahmin, Kshatriya or vaisya. The dasi was in the continuous keeping of the putative father. 

Such a son is entitled to only maintenance. He is not an “aurasa” son. His right is only personal and not heritable. 

Among sudras, the dasiputra is entitled to inheritance if: 

1. he is the son of a dasi sudra concubine in continuous keeping 
2. his birth was not out of adulterous or incestuous intercourse. 

In Kamalammal V. Viswanath swami it was held that a sudhra dasiputra would get a share which was one half of what a legitimate son would get Such a person inherits to his father only and not to collaterals. He takes father’s separate property by survivor ship with legitimate sons. His right is heritable. He has no right to partition. He does not acquire any right in ancestral property.Dasi putra inherits to his mother’s Stridhana, equally with legitimate children. 

(xv) Escheat: 

Sn.29 of the H.S Act states that on failure of heirs, the property of the Hindu dying intestate devolves on the Government. 

The intestate should have left no qualified heir to succeed to his property according to the various provisions: Sn 6,7,8,15,16 etc. of the H.S Act; 

The Government takes the property subject to all the obligations and liabilities to which an heir would have been subject. 

(Act. 296 of the comtitution also deals with escheat, vesting the property in the state, accrued to it as successor state.)