Since a long time, a coparcener in northern Punjab (after partition) challenged sale deed of joint family property made by Karta of Joint Hindu family under Hindu Law or reversionary heir challenged the alienation of ancestral property under the customary law.

It may be noted here, though the Banaras school of Mitakshra law covers practically the whole of north India, except in the rural Punjab. Since here the Mitakshra law has been modified considerably by custom on certain point. Meaning thereby, only customary Hindu law prevails in the state of Punjab, 2018(4) RCR (CIVIL) 430.

Because of Banaras school of Mitakshra law, one coparcener cannot challenge the sale deed of joint family property made by Karta in North India (after partition) which cover Punjab, Haryana, and Himachal etc.

Sir George Campbell, Lieutenant Governor of Bengal moved an amendment to the fact that the custom should be made the first rule of decision and the law subsidiary to it. For this purpose, Punjab Law Act, 1872 was enforced, in which section 5 is important which is read as “In question regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family-relations, wills, legacies, gifts, partitions, or any religious usage or institution, the rule of decision shall be-

(a) Any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent authority;

(b) The Muhammadan Law in cases where the parties are Muhammadans, and the Hindu Law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this act, or has been modified by any such custom as is above referred to.[1]

Later, Punjab custom (power to contest) act came into the picture on 1 May 1920. Under which section 6, is very important and read as follows: “subject to the provision contained in section 4 and notwithstanding anything to the contrary contained in section 5, Punjab laws act, 1872, no person shall contest any alienation of ancestral immovable property or any appointment of an heir to such property on the ground that such alienation or appointment is contrary to custom, unless such person is descended in male lineal descent from the great-great-grandfather of the person making the alienation or appointment.”

Therefore, above mentioned provisiongrants right only to the descendant in male lineal descent from the great-great grandfather of the person for challenging the rights of alienation. Thus, in simple words it shallmean that a descendant of male lineal line has lost his power to challenge the sale deed executed by his great grandfather under Hindu law. But it seems surprising to me, how people are challenging that sale deed under Hindu Law in Punjab and Haryana Civil Court and How Civil court of Punjab and Haryana adjudicate and degree such kind of dispute.

Note: kindly note the dates of enforcement of various acts which are mentioned in this article.

Despite heavy protest by the president of India. The Hindu Marriage Act, 1955 was enforced on 18th May 1955. Section 5 of this act defines “various conditions for solemnizing marriage between any two Hindu”. Sub section 1 of this section lays down a very major condition that “neither of the party has a spouse leaving at the time of the marriage”.

Section 11 of this act defines the Void marriage, which reads as “any marriage solemnised after the commencement of this act shall be null and void and may on a petition presented by either party there to against the other party be so declared by a degree of nullity if it contravenes any one of the conditions specified in clause (1), (4) or (5) of section 5”.

According to section 5 and section 11 of Hindu marriage act, a married person cannot perform second marriage in the lifetime of his first spouse and if he or she do so, then under section 11 of this act, the second marriage shall be declared null and void by any civil competent court.

The Hindu succession act, 1956 was enforced on 17th June 1956 in this country. Section 10 of this act defines a “distribution of properties among heirs among the clause first of the schedule.” The property of an intestate shall be divided among the heirs in the clause 1st of the schedule in accordance with the following rules. Rule 1– the intestates, or if there are more widows than one, all the widows together shall take one share.

On the other hand, Hindu adoption and maintenance act, 1956 was enforced on 21st December, 1956. According to explanation of section 7 of this act which defines the “capacity of a male Hindu to taken in adoption”. If a person has more than one wife leaving at the time of adoption the consent of all the wifes is necessary unless the consent of any one of them is unnecessary or any of the reason specified in the preceding proviso.

According to a judgement mentioned in 2009(4) RCR CIVIL on pg.401, “when there are two special acts dealing with the same subject matter, the legislation which has been enacted subsequently should prevail.”

In this article, as I have mentioned above that the Hindu marriage act,1955 was enforced on 18th May 1955, Hindu succession act enforced on 17th June 1956 and Hindu adoption and maintenance act was enforced on 21st December 1956.

So, as Hindu Succession and Hindu adoption and maintenance act, were passed subsequent to Hindu marriage act, and both these acts supersede Hindu marriage act. Therefore, any male married Hindu can perform number of marriage in the lifetime of his first wife after enforcement of Hindu Marriage Act.

If all these above-mentioned acts exist as it exists before, then one prostitute lady will get her share in succession of disease husband and similarly according to section 16 of Hindu marriage act, ille-gitimate children born out of void and voidable marriage will get their share in succession from the property of their disease father.

Conclusion

According to my own opinion, if we go with the history of India there was no codify law regarding Hindu marriage, adoption and succession act etc prior to Independence. Therefore, at that point of time Raja Maharajas and Zamindars and higher-class body and ruling class body of married male section usually perform more than one marriage. India became Independent state on 15th August 1947. At that point of time, such type of problem was persisting as customary Hindu law, gave permission to such type of marriage. To face this situation Hindu Succession Act, 1956 and Hindu adoption and maintenance act, 1956 covered the issue of more than one wife of legally wedded male Hindu or it may be seeming to be a flow in draftsmen ship of both the abovementioned act. Lastly, I would say that both the mistake as I discussed above should be amended. So, such type of problem comes to end and therefore, one Hindu can tell with proud that uniform civil code still exists in India. Otherwise, both Hindu and Muslim make a serious allegation upon male member of any community that he can perform number of marriage with no of lady of their community.

Whether Hindu Succession Act, 1956 has abolished the concept of J.F.P. of Hindu Law?

1. Hindu Law is traditionally classified into two schools of law, namely: Mitakshra and Dayabhaga. Wherein Dayabhaga school prevails in Bengal and Mitakshra school prevails in other parts of India. The concept of Joint Hindu Family is defined in the Article 212 of Mulla Principles of Hindu Law and Article 213 of the same principle defines the concept of the Coparcenary rights i.e. ideally much narrower body than joint family. It only includes those persons who acquire rights by birth in the joint or coparcenary property. These persons include sons, grandsons and great-grandson of the holder of the joint property for the time being. In other word, three generation next to the holder in unbroken male descents. Moreover, Article 217 of the above principles clearly states that no female can be a coparcener under the Mitakshra school and Article 218 further classify the coparcenary rights into 2 parts i.e. (1) unobstructed heritage (2) obstructed heritage. Wherein property in which a person acquires an interest by birth is called unobstructed heritage whereas property the right on which accrues not by birth but on the death of the last owner without leaving male issue is called obstructed heritage.

Therefore, unobstructed heritage devolves by survivorship whereas obstructed heritage devolves by succession. Further, Hindu law under its Article 220 has classified property into the 2 classes: (1) Joint Hindu family property (2) Separate property.

Joint Hindu Family property: may be divided according to sources which it come into-

• Ancestral property: According to Article 223 all properties inherited by a male Hindu from his father, fathers father, or fathers fathers father.

• Separate property of coparcener thrown into the common coparcenary stock: property jointly acquired by the member of’ the joint family with the aid of the ancestral property is joint family property. Whereas property jointly acquired by the member of the joint family without the aid of the ancestral property may or may not be the joint family property. Whether it is so or not would be question of fact in each case. Ideally, the term joint family property is synonymous with coparcenary property.

According to article 236 of the above mentioned act, property belonging to a joint family is the ordinary managed by the father or the other senior member for the time being of the family, the manager of the joint family is called Karta and according to the article 242 of the abovementioned act, the manager of the joint Hindu family has a power to alienate for value joint family property so as to bind the interest of both adult and minor coparcener in the property provided that the alienation is made for legal necessity or for the greater benefit of the state.

According to Sitara Lal v. Shiv Kumar, 1985 HAP 74 under Punjab customary law and law son have no right to partition against their father because sons do not have any right by birth.)

2. On the other hand, section 3(f) of the Hindu succession act 1956 defines “heir”- as any person male or female who is entitled to succeeded to the property of an intestate under this act. Further, section 3(g) of the same act defines “intestate”- a person is dimmed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect.

Whether article 220(1) ancestral property of Mulla has been abolished by section 4,8 and schedule of Hindu Succession Act, 1956 ?

Section 4 of Hindu succession act, 1956 clearly laid down the overriding effect of the act which reads as “save as expressly provided in the act- any text, rule or interpretation of Hindu law or any custom or usage as part of that law enforced immediately before the commencement of the act should cease to have effect with respect to any matter for which provision was made in the act.”

But Hindu Succession Act, 1956 which was only enforced to amend and codify the law relating to intestate succession among Hindu and include in its section 6 and 30 – Joint Hindu Family governed by Mitakshra law. So, here it is necessary to mention that Hindu Succession act cross its limit and enter into a concept of Hindu law. Both law was merge and mixed up.

Section 8 of the Hindu Succession Act, 1956 laid down scheme of the succession to the property of Hindu dying intestate. A Sons son was not mentioned as an heir under clause 1st of the schedule therefore, he could not get any right in the property of his grandfather under the provision. The right of the Sons son on his grandfather property during the lifetime of his father which exist under the Hindu Law as enforced before the act was not saved expressly by the act and therefore, the earlier interpretation of the Hindu law giving a right by the birth in the joint property has cease to have any effect. Thus, the property which devolve on a Hindu on the death of his father intestate after the coming in the force of Hindu succession act, 1956 did not constitute HUF property consisting of his own branch including his sons.^[1], ^[2].

Whether article 220(2) has been abolished by Hindu Succession Act, 1956 ?

Once a property is thrown into common hotchpotch, it is necessary that the exact detail of the specific date, month, year etc. of creation of an HUF for the first time by throwing a property into a common hotchpotch must be clearly pleaded and mentioned which is legal requirement due to order 6 rule 4 of CPC, which provides that all necessary factual detail of the cause of action must be clearly stated.

Undoubtedly, an HUF can exist even if paternal ancestral property is inherited prior to 1956 and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 1956 from paternal ancestral.^[3], ^[4].

Conclusion

My personal opinion upon the above mentioned both the point are firstly, Hindu succession act, 1956 till today neither abolished Hindu law and ancestral property in its any section. Secondly, Mulla article 220 define joint family property and separate property and article 218 define unobstructed heritage when property in which a person has acquired an interest by birth and obstructed heritage property the right to which accrues not by birth but on the death of the last holder. Hindu Succession act, which basically governs with intestate succession among Hindu cover joint Hindu family governed by Mitakshra law in section 6 and section 30 and even Benami transaction prohibition act, 1988 and 2016 (amended) also deal with the legal concept coparcener and Hindu undivided family meaning thereby till today Hindu succession act recognise the existence of joint Hindu family Mitakshra law. The main point to be noted in AIR SC 1753, the property which devolve on a Hindu on the death of his father intestate after the coming into the force of Hindu succession act, 1956 did not constitute HUF property but according to supreme court judgements mentioned in the above paragraphs HUF properties are abolished due to section 8 of Hindu succession act. On the other hand, AIR 2016 DELHI 120 and AIR 2017 DELHI 15 has laid down two exceptions to these concepts. Firstly, HUF property remains continue in case HUF existed and continued before and after 1956 and second exception is after 1956, a person who owns the self-acquired property throws such property into a common hotchpotch.

Moreover, in case if joint family property abolishes then there would be no chance of filing admission suit, relinquish deed and memorandum of partition (family settlement).

Therefore, old concept of joint family property is still to be maintained along with Hindu Succession Act, 1956