Unit 1
Hindu Law
From thousands of years people living in the Indian subcontinent have been leading their lives by following the guidelines and concepts given in the Vedas. These guidelines have evolved into rules followed by the people and enforced by the rulers and have thus become de facto law. In this modern times, the same laws have been retrofitted to suit present conditions and have been codified in the form of several acts of which the important ones are - Hindu Marriage Act 1955, Hindu Adoption and Maintenance Act 1956, Hindu Minority and Guardianship Act 1956, and Hindu Succession Act 1956.

Application of Hindu Law
A precise definition of Hinduism does not exist. Hence, it is impossible to define a fixed criteria for determining who is a Hindu. So a negative definition of 'who is not a Hindu' is used. Further, in this land, several religions have been born and they they follow the same customs and practices. So it cannot be said that Hindu Law can be applied only to people who are Hindus by religion. Due to these reasons, in general, the following people are considered to be Hindu with respect to application of Hindu Law.

1. Hindu by Religion - A person who is Hindu, Jain, Bauddha, or Sikh by religion. In Shastri v Muldas SC AIR 1961, SC has held that various sub sects of Hindus such as Swaminarayan, Satsangis, Arya Samajis are also Hindus by religion because they follow the same basic concept of Hindu Philosophy. Converts and Reconverts are also Hindus. SC, in the case of Peerumal v Poonuswami AIR 1971, has held that a person can be a Hindu if after expressing the intention of becoming a Hindu, follows the customs of the caste, tribe, or community, and the community accepts him. In Mohandas vs Dewaswan board AIR 1975, Kerala HC has held that a mere declaration and actions are enough for becoming a Hindu. 2. Hindu by Birth - A person who is born of Hindu parents. If only one parent is a Hindu, the person can be a Hindu if he/she has been raised as a Hindu. In Sapna vs State of kerala, Kerala HC, the son of Hindu father and Christian mother was held to be a Christian. 3. Persons who are not Muslim, Christian, Jew, or Parsee by religion. 4. Persons who are not governed by any other religious law will be governed by Hindu Law.
Sources of Hindu Law
The sources of Hindu law can be classified under the following two heads:

I. Ancient Sources
Under this would come the following:
(i) Shruti
(ii) Smriti
(iii) Digests and Commentaries and
(iv) Custom.

II. Modern Sources
Under this head would come:
(i) Justice, equity and good conscience
(ii) Precedent, and
(iii) Legislation.

Ancient Sources
(i) Shruti-
It literally means that which has been heard. The word is derived from the root “shru” which means ‘to hear’. In theory, it is the primary and paramount source of Hindu law and is believed to be the language of the divine revelation through the sages.

The synonym of shruti is veda. It is derived from the root “vid” meaning ‘to know’. The term Veda is based on the tradition that they are the repository of all knowledge. There are four Vedas namely, Rig Veda (containing hymns in Sanskrit to be recited by the chief priest), Yajurva Veda (containing formulas to be recited by the officiating priest), Sama Veda (containing verses to be chanted by seers) and Atharva Veda (containing a collection of spells and incantations, stories, predictions, apotropaic charms and some speculative hymns).

Each Veda has three parts viz. Sanhita (which consists mainly of the hymns), Brahmin (tells us our duties and means of performing them) and Upanishad (containing the essence of these duties). The shrutis include the Vedas along with their components.

(ii) Smritis-
The word Smriti is derived from the root “smri” meaning ‘to remember’. Traditionally, Smritis contain those portions of the Shrutis which the sages forgot in their original form and the idea whereby they wrote in their own language with the help of their memory. Thus, the basis of the Smritis is Shrutis but they are human works.

There are two kinds of Smritis viz. Dharmasutras and Dharmashastras. Their subject matter is almost the same. The difference is that the Dharmasutras are written in prose, in short maxims (Sutras) and the Dharmashastras are composed in poetry (Shlokas). However, occasionally, we find Shlokas in Dharmasutras and Sutras in the Dharmashastras. In a narrow sense, the word Smriti is used to denote the poetical Dharmashastras.

The number of Smriti writers is almost impossible to determine but some of the noted Smriti writers enumerated by Yajnavalkya (sage from Mithila and a major figure in the Upanishads) are Manu, Atri, Vishnu, Harita, Yajnavalkya, Yama, Katyayana, Brihaspati, Parashar, Vyas, Shankh, Daksha, Gautama, Shatatapa, Vasishtha, etc.

The rules laid down in Smritis can be divided into three categories viz. Achar (relating to morality), Vyavahar (signifying procedural and substantive rules which the King or the State applied for settling disputes in the adjudication of justice) and Prayaschit (signifying the penal provision for commission of a wrong).

(iii) Digests and Commentaries-
After Shrutis came the era of commentators and digests. Commentaries (Tika or Bhashya) and Digests (Nibandhs) covered a period of more than thousand years from 7th century to 1800 A.D. In the first part of the period most of the commentaries were written on the Smritis but in the later period the works were in the nature of digests containing a synthesis of the various Smritis and explaining and reconciling the various contradictions.

The evolution of the different schools of Hindu law has been possible on account of the different commentaries that were written by various authorities. The original source of Hindu law was the same for all Hindus. But schools of Hindu law arose as the people chose to adhere to one or the other school for different reasons. The Dayabhaga and Mitakshara are the two major schools of Hindu law. The Dayabhaga school of law is based on the commentaries of Jimutvahana (author of Dayabhaga which is the digest of all Codes) and the Mitakshara is based on the commentaries written by Vijnaneswar on the Code of Yajnavalkya.

(iv) Custom-
Custom is regarded as the third source of Hindu law. From the earliest period custom (‘achara’) is regarded as the highest ‘dharma’. As defined by the Judicial Committee custom signifies a rule which in a particular family or in a particular class or district has from long usage obtained the force of law.

Custom is a principle source and its position is next to the Shrutis and Smritis but usage of custom prevails over the Smritis. It is superior to written law. There are certain characteristics which need to be fulfilled for declaring custom to be a valid one. They are:-

(i) The custom must be ancient. The particular usage must have been practised for a long time and accepted by common consent as a governing rule of a particular society.
(ii) The custom must be certain and should be free from any sort of ambiguity. It must also be free from technicalities.
(iii) The custom must be reasonable and not against any existing law. It must not be immoral or against any public policy and
(iv) The custom must have been continuously and uniformly followed for a long time.

Indian Courts recognize three types of customs viz: (a) Local custom – these are customs recognised by Courts to have been prevalent in a particular region or locality. (b) Class custom – these are customs which are acted upon by a particular class. Eg. There is a custom among a class of Vaishyas to the effect that desertion or abandonment of the wife by the husband abrogates the marriage and the wife is free to marry again during the life-time of the husband. (c) Family custom – these are customs which are binding upon the members of a family. Eg. There is a custom in families of ancient India that the eldest male member of the family shall inherit the estates.

II. Modern Sources
(i) Justice, equity and good conscience-
Occasionally it might happen that a dispute comes before a Court which cannot be settled by the application of any existing rule in any of the sources available. Such a situation may be rare but it is possible because not every kind of fact situation which arises can have a corresponding law governing it.

The Courts cannot refuse to the settle the dispute in the absence of law and they are under an obligation to decide such a case also. For determining such cases, the Courts rely upon the basic values, norms and standards of fairplay and propriety.

In terminology, this is known as principles of justice, equity and good conscience. They may also be termed as Natural law. This principle in our country has enjoyed the status of a source of law since the 18th century when the British administration made it clear that in the absence of a rule, the above principle shall be applied.

(ii) Legislations-
Legislations are Acts of Parliament which have been playing a profound role in the formation of Hindu law. After India achieved independence, some important aspects of Hindu Law have been codified. Few examples of important Statutes are The Hindu Marriage Act, 1955, The Hindu Adoptions and Maintenance Act, 1956, The Hindu Succession Act, 1956, The Hindu Minority and Guardianship Act, 1956, etc.

After codification, any point dealt with by the codified law is final. The enactment overrides all prior law, whether based on custom or otherwise unless an express saving is provided for in the enactment itself. In matters not specifically covered by the codified law, the old textual law contains to have application.

(iii) Precedents-
After the establishment of British rule, the hierarchy of Courts was established. The doctrine of precedent based on the principle of treating like cases alike was established. Today, the decisions of Privy Council are binding on all the lower Courts in India except where they have been modified or altered by the Supreme Court whose decisions are binding on all the Courts except for itself.

SCHOOLS OF HINDU LAW 1. The Mitakshara school:-
The Mitakshara is a running commentary on the code of Yajnavalka. It has been written by an eleventh century jurist by the name of Vijnaneshwar (বিজ্ঞানেশ্বর), and prevails in all parts of India (except the province of West Bengal) and in Pakistan. The Dayabhaga School, which is followed mainly in Bengal, Bangladesh, is not a commentary or any particular code, but is a digest of all the codes. It has been written by Jimutavahana(জিমুতবাহ). It may also be noted that the Mitakshara is the orthodox school, whereas the Dayabhaga is the reformist school of Hindu law. 2. The Dayabhaga school:-
The Dayabhaga is not divided into any sub-schools, However, the Mitakshara is sub-divided into four schools prevailing in different part of India, and these four sub-schools are as follows:-
a. The Banaras School, which prevails in northern and western India;
b. The Mithila School, which has most of its followers in Bihar
c. The Dravida or Madras School, which prevails in Southern India; and
d. The Maharashtra or Bombay School, which prevails in Western India.
The Mitakshara and the Dayabhaga school differed on important issues as regards the rules of inheritance. However, this branch of law is now codified by the Hindu succession Act, 1956, which has dissolved the differences between the two.
Differences between Mitakshara school & Dayabhaga school.
We know that the Mitakshara is anterior to dayabhaga and it is a running commentary or the code of Yajnabalka (জগ্যবলকো) written by Vijaneswara (বিজ্ঞানেশ্বর). The Dayabhga is the digest of all the codes while giving performance to the Code of Manu.

Joint family property and self-acquired property
A joint family property cannot be the subject matter of Will except to the extent of testator’s share on deemed partition on the date of his death. A Will should ordinarily be in respect of self-acquired property. If a Will is made of entire joint family property, such a Will may well not be valid.
Before the Hindu Succession Act came into force with effect from June 1956, whatever is received by succession or by a Will from the parent was treated as ancestral property in the hands of the sons. In fact, even salary and professional income arising out of education met from the funds of Hindu joint family were treated as joint family property prior to Hindu Gains of Learning Act, 1930. It is now treated as individual income.
As a result of the Hindu Succession Act, individual property would have the same character in the hands of the legal heirs, whether by Will or by intestate succession, if the death of the holder occurred on or after June 1956.
A Hindu Undivided Family (HUF) would continue as joint family even after the Hindu Succession Act, but female heirs of deceased coparceners will have a right over their father’s share on the basis of deemed partition. Under the Hindu Succession Act, such part will no longer continue as that of Hindu Undivided Family, when parted with, but the remaining part will continue in the same family, unless complete partition is effected.
The right of the female heirs has undergone changes by State enactments and now by the Hindu Succession (Amendment) Act, 2005, with effect from September 5, 2005, giving rights to the daughters equal to sons, but even in such a case till partition takes place, HUF will deem to continue. But on settlement of rights of daughters, the male coparceners alone can continue in joint family. Daughters will take their share as their individual property.
As for the query, as to how joint family can originate, the joint effort of the members of a Hindu joint family in running a common business or activity may lead to the inference of a Hindu joint family. Joint family may be created or its property augmented by individual property thrown into common hotchpot. Any gift or a Will may also create or augment the property of joint family, if the donor or testator, as the case may be, expresses clearly that the donee/ beneficiary will not have absolute right over the property but will receive the same as joint family property as the karta of such joint family.
A daughter, who is now conferred property rights in a joint family equal to that of the son can exercise her right to ask for a partition and get her share. She gets her share even if partition is occasioned by other members.

Karta:-
Karta means manager of joint family and joint family properties. He is the person who takes care of day to day expenses of the family looks after the family and protects the joint family properties.
Who can be a Karta:-
It is a presumption that ordinarily senior most male member is the Karta and Karta is always a member in the family no outsider or stranger can become a Karta.
The senior most male member so long as he is alive may be, aged, infirm or ailing continues as Karta. By his death Kartaship will pass on to next senior most male member.

In the presence of senior most male member a junior cannot act as Karta but if all coparcener agree, a junior also can become a Karta.

Karta owes his position by consent or agreement of all coparceners.

Female Member:-
Generally female member cannot become Karta but in exceptional circumstances female also can act as Karta.
Position of Karta:-
Karta is sui generis (of its own kind) the relationship between him and members is not like principal or agent or like partners in a partnership firm.

He is the head of the family and acts on behalf of other members.

He stands fiduciary relationship with other members but he is not a trustee, nobody can question what he spent unless charges of misappropriation.

When any coparcener charges of improper alienations made by Karta, burden of proof lies on him to prove such are malafide act of Karta.

Powers of Karta:-
With in joint family Karta has vast powers with limitations.
1) Power of management:- He is the head of the family, his management powers are absolute. He may manage the family affairs and family property and business the way he likes for the benefit of estate, no one can question his management.

2) Right to Income:- It is general rule that all members who works or do business out of joint family property must hand over income to Karta. It is for Karta to allot funds to the members and look after needs and requirements, so long as family remains joint, no member can ask for any specified share in the income.

3) Right to representation:- He represent the family, represents the family in all matters, legal, social and religious. He can enter into any transaction on behalf of the family, his acts are binding on the entire joint family.

4) Power to compromise:- He has power to compromise all disputes relating to family property or their management. He can compromise pending suits, family debts, and other transactions. However if his act is not bonafide can be challenged in a partition.

5) Power to refer a dispute to arbitration:- Karta has power to refer any dispute to arbitration and Arbitrator’s award is binding on all the members.

6) Power of acknowledgement and to contract debts:- Karta has power to acknowledge on behalf of the family any debt due to the family, also has power to pay debt or to make pack payment of debt.
He has power to contract debts for the family such debts incurred in the ordinary course of business are binding on entire joint family.

Even Karta when takes loan or execute promissory note for family purpose or for family business joint family is liable to pay such loan.

7) Power to enter into contract:- Karta has power to enter into contract and such contract is enforceable against the family.

8) Power of alienation:- Nobody in the family has power to alienate joint family property. However Karta has power of alienation under 3 circumstances.
a) Legal necessity
b) Benefit of estate.
c) Indispensable duties.
Kartas Liabilities:-
Karta has vast powers same time his position is fiduciary and has lot of responsibilities and liabilities.
1) Liable to maintain:- Karta is responsible to maintain all the members of joint family. If he improperly excludes any member from maintenance, he can be sued for maintenance and also arrears of maintenance.

2) Liability to render accounts:- As long as family remains joint, Karta is not supposed to keep accounts, but when partition takes place at that time he is liable to account for family property. If any of the coparcener is not satisfied with his account can institute a suit against Karta to discover the truth and to know any misappropriation is made by Karta.

3) Liability to recover debts due to the family:- Kartas should realize all debts due to the family with in reasonable time but should not allow them to bar by limitation.

4) Liability to spend reasonably:- As Karta of joint family has control over the income and expenditure of the family, he is custodian of surplus income. However he should spend family funds reasonably and for the purpose of the family.

5) Liability not to alienate coparcenary property:- Unless it is for benefit of family, estate or for necessity Karta cannot alienate joint family property without the consent of all the coparceners.

6) Liable not to start new business:- Unless adult coparceners of the family expressly or impliedly consents, Karta cannot impo
Right of female:-
As already mentioned no female has right to partition but certain females are entitled for shares if partition is effected.
1) Father’s wife, mother and grandmother is entitled to share as per Hindu women’s Right to Property Act 1987 when Mitakshara Coparcener dies leaving behind widow, she took his share at the time of partition she is entitled to take the extent of her husband share.
2) Hindu women’s Right to Property Act 1987 when Mitakshara Coparcener dies leaving behind widow, she took his share at the time of partition she is entitled to take the extent of her husband share. Hindu women’s Right to Property Act 1987 when Mitakshara Coparcener dies leaving behind widow, she took his share at the time of partition she is entitled to take the extent of her husband share.
Under Hindu Succession Act, 1956 U/S 6 widow, daughter, mother, predeceased son’s daughter and his widow, predeceased son’s predeceased son’s widow, daughter’s daughter are entitled to their respective shares as per the rules laid down.
An aliened of coparcener’s undivided interest files a suit for partition is entitled to a share to the extent of that coparcener.

pious obligation- history
If a debt contracted by the father has not been repaid during his lifetime, by himself, it must be restored, after his death, by his sons. Should they separate, they shall repay it according to their respective shares. If they remain united, they shall pay it in common, or the manager shall pay it for the rest, no matter whether he may be the senior of the family or a younger member, who, during the absence of the oldest, or on account of his incapacity, has undertaken the management of the family estate.
A series of decisions in the courts of modern India have changed the traditional interpretation of the liabilities of the son, grandson, and great-grandson. The traditional distinction was that the son was liable to pay the principal and the interest, the grandson was liable to pay only the principal but no interest, and the great-grandson was liable only to the extent that the paternal estate came into his hands. The son, grandson, and the great-grandson are liable equally for ancestral debts, but not personally liable, and that their liability is co-extensive and confined to the extent that they have joint property in their possession.
It was not essential for the son to prove criminal liability against the father in respect of the debt in question in order to claim exemption from payment of such debt. The learned Judge pointed out that the son can claim immunity only when the father's conduct is utterly repugnant to good morals or is grossly un-iust or is flagrantly dishonest.
Avyavaharik debts
In this section we will look as to what is meant by Avyavaharik debts. Colebrooke defined it as a liability incurred for a cause repugnant to good morals. If it is unrighteous or wholly improper they cannot be called vyavaharika or legal debts. It may be that the debts incurred by the father for defending himself against criminal action against others or defending himself in an action brought by others are legal in several circumstances. If a debt was incurred to defend the rights of the family and to safeguard its interests, it is certainly legal in nature. If a debt is not tainted with illegality at its inception it may be binding on the son. The son may not be able to claim immunity from the debts in such cases. But, where the father's conduct which prompted the incurring of the debt, is utterly repugnant to good morals or is grossly unjust or flagrantly dishonest, then certainly the son can claim immunity from its liability. The learned author Mulla of Hindu Law (at pp, 350 and 351 in l3th edition) places any debt which is avyavaharika which is rendered by Colebrooke as equivalent to a debt for a cause "repugnant to good morals'' in the list of Avyavaharika debts. It is further stated that the fundamental rule is that the sons are not liable for the debts incurred by father which are Avyavaharika. Colebrooke translates it as "debts for a cause repugnant to good morals." Aparaka explains it as not righteous or proper.
The Hindu Undivided Family system is a unique feature of the Indian society and the concept of pious obligation acts as a thread which binds the family together and prevents it from disintegration. Pious obligation includes both spiritual as well as material aspects and makes the heir(s) responsible/liable for spiritual duties, like performing the last rites of the deceased, paying back debts accrued by the deceased and also fulfilling other responsibilities left incomplete in respect of the joint family. Once pious obligation is abrogated, the concept of joint family also suffers a blow.