Hindu Law

Transfer of property by hindu widow It is true that the fact of legal necessity has to be proved by the purchaser. The power of a Hindu female to alienate property are wider in respect of acts which conduced to the spiritual benefit of her deceased husband. The widow is entitled to sell the property even the whole of it if the income of the property is not sufficient to cover the expenses for such acts. In the present case the recital of the deed indicates legal necessity in different way; such as, spiritual benefits of her deceased husband, payment of debts and maintenance of the widow. In the absence of any other reliable evidences it can be easily inferred that the property was alienated by the widow of Gostha Bepari for legal necessity. The defendants, as purchaser of the property had obligations to prove legal necessity but in the instant case the plaintiffs in one hand could not establish and prove by any evidence that Promoda Sundari had no legal necessity to transfer the property in question and on the other hands the recital of the deed discloses some legal necessity which has to be construed liberally. The recital is clear evidence of the representation and if the circumstances are such as to justify a reasonable belief that an enquiry would have confirmed its truth, then when proof of actual enquiry has become impossible, the recital coupled with such circumstances would be sufficient evidence to support the deed. To hold otherwise would result in deciding that a title becomes weaker as it grows older, so that a transaction perfectly honest and legitimate when it took place would ultimately incapable of justification merely owning to the passage of time. Both the courts below concurrently observed and held that the widow of Gostha Bepari, Promoda Sundari had no other alternative for her livelihood. Being a widow it was necessary for her survival to alienate the property left by her husband. [73 DLR 251] Legal necessity for transferring the land Instituted Title Suit No. 103 of 1997 for partition of ejmali property- It is true that in this kabala dated 02.03.1997 it has been mentioned that for performing the Shradhya ceremonies of her parents Komoda sold this land to the plaintiff. But this recital only in the document is not enough to prove that actually there was legal necessity for transferring this land by Komoda-who, admittedly, had life interest only in the land in question. Evidence is necessary to prove that actually there was legal necessity for transferring this land by Komoda. ....Abdus Sobhan Munshi =VS= Komada Daishya & others, [1 LM (AD) 410] It appears that the trial court, on proper examination and assessment of all these evidence, rightly found that it had not been proved at all that Komoda sold the suit land to the plaintiff for performing Shradhya of her parents and that she actually performed Shradhya of her parents. We find no reason to differ with these findings and decision of the trial court. It is also not believable that Komoda sold this land to perform Shradhya of her father-who admittedly died long 50/60 years before and of her mother-who also died long 5/6 years before depriving the reversioners. So we are unable to accept this story......Abdus Sobhan Munshi =VS= Komada Daishya & others, [1 LM (AD) 410] Mother of the plaintiffs, as holder of life interest only, could not have sold the entire land- We are of the view that the five deeds of sale executed and registered by Saraswati were not forged and fraudulent. However, since the whole transfer could not be attributed to legal necessity, and since the parties concerned evidently agreed that 4.62 acres of land out of 8.31 acres transferred by way of the five sale deeds, was to be returned to the plaintiffs, the provisions of Hindu law have not been impinged in any way. The appeal is allowed in part and the judgement passed by the High Court Division is set aside. The sale of land in favour of the plaintiffs' sons according to their wish and in accordance with the terms of the Salish, is found to have validly reconveyed 4.62 acres of land in favour of the plaintiffs' sons. We find that the transfer of the remaining 3.69 acres of land by Saraswati to the defendants to meet her legal necessity is valid and is within the provisions of Hindu law. The defendants are hereby directed to hand over possession of 4.62 acres of land to the plaintiffs, if they have not already done so. ...Hachina Aktar Banu (Most.) =VS= Ananta Kumar Sikder, [8 LM (AD) 4] Stridhan Property In case of Stridhan property, it reverts back to the nearest heir of the female who is the owner of that property: The guiding Principle of Law of Inheritance' under the Dayabhaga School of Law, which prevails in Bangladesh, is the doctrine of religious efficacy. Religious efficacy means capacity to confer special benefit upon the deceased person. Succession is the mode of devolution of property under the Dayabhaga system. The general Rule of inheritance is that once a property is vested upon any one, it will not be divested. But in case of Hindu woman, getting limited ownership in the property is contradictory to this general Rule as the property will revert back to the heir of the owner. Only in case of Stridhan property, it reverts back to the nearest heir of the female who is the owner of that property. It is to be noted that succession of the Stridhan property' is held absolutely by a female. (Para 17) There is no consistent, uniform and firm rule of Hindu Law imposing absolute/unqualified bar to succeed Stridhana by daughter's daughters: From the above principles quoted from Mulla, it is clear that there is no consistent, uniform and firm rule of Hindu Law imposing absolute/unqualified bar to succeed Stridhana by daughter's daughters. Moreover, S. 160 makes it clear that Stridhana heirs in the second generation may be daughter's daughter. In the instant case, plaintiff Elokeshi is daughter's daughter of Rukkhini, the original Stridhana owner, and, for that matter, she is a Stridhana heir in the second generation, and obviously not excluded from inheriting Stridhana of her grandmother, as it is evident from S. 160. (Para 21) When a daughter inherits Stridhan of her mother, she takes it absolutely like a son When a daughter inherits Stridhan of her mother, she takes it absolutely like a son because son and daughter inherit "EQUALLY" and not even a single line of "The Dayabhaga" suggests it to become her "widow's estate" or anything like that. (Para 35) Stridhana being absolute ownership of a woman, on her death, absolute ownership devolve upon her heir: It is an elementary principle of law that what devolve upon the successor from the predecessor are all rights and liabilities of the predecessor attached to and arising of a certain property. In that view of the matter, the Stridhana being absolute ownership of a woman, on her death, absolute ownership devolve upon her heir, no matter whether it is called Stridhana or not. (Para 46) [18 SCOB (2023) AD 20] A, a Hindu male governed by the Bengal School of Hindu Law, dies leaving a widow and a brother. On A's death, the widow succeeds as his heir. The widow then dies leaving a daugh- ter's daughter. The widow's stridhana will pass to the daughter's daughter as her stridhana heir, but the property inherited by her from her husband A will pass to the next heir of her hus- band, namely his brother. .(19) "The doctrine that the Stridhana which has once passed by inheritance ceases to rank as such, is not easily deducible from Jimuta Vahana's definition of Stridhana. That definition, as you have seen, restricts the term to property which woman has power to dispose of independently of her husband's con- trol." .....(24) In Bengal it is well-settled law that property inherited from a woman by a woman does not on the death of the lat- ter passes as her Stridhan. The Rule has often been expressed by saying that what has once descended as Stridhan does not so descend again. The author- ities have been collected and reviewed in Huri Doyal Singh Sarmana vs. Girish Chundar Mukerjee (Ind. L. R. 17 Cal. 911)........(28) Shishubar Dhali vs. Chitta Ranjan Mondol (Borhanuddin J) (Civil) 20 ADC 337 হিন্দু আইনের বঙ্গীয় ধারা দ্বারা শাসিত একজন হিন্দু পুরুষ (ক), বিধবা ও ভাই রেখে মারা যান। বিধবা ক-এর সম্পত্তি উত্তরাধিকার সূত্রে পান। বিধবার মৃত্যুর পর, তার এক নাতনী রেখে গেলে, তার স্ত্রীধন নাতনীর কাছে স্ত্রীধন উত্তরাধিকারী হিসেবে যায়। কিন্তু তার স্বামী (ক) থেকে উত্তরাধিকার সূত্রে প্রাপ্ত সম্পত্তি ক-এর ভাইয়ের কাছে যায়। উত্তরাধিকার সূত্রে প্রাপ্ত স্ত্রীধন আর স্ত্রীধন থাকে না এই মতবাদ জিমূত বাহনের সংজ্ঞার থেকে সহজে পাওয়া যায় না, যেখানে স্ত্রীধনকে এমন সম্পত্তি হিসেবে সংজ্ঞায়িত করা হয়েছে যা একজন মহিলা তার স্বামীর নিয়ন্ত্রণ ছাড়াই নিষ্পত্তি করতে পারে। বাংলায়, একজন মহিলার কাছ থেকে অন্য মহিলার উত্তরাধিকার সূত্রে প্রাপ্ত সম্পত্তি পরের জনের মৃত্যুর পর স্ত্রীধন হিসেবে যায় না। এটিকে এভাবে প্রকাশ করা হয় যে "যা একবার স্ত্রীধন হিসেবে নেমে এসেছে তা আর তেমনভাবে নামে না" (হরি দয়াল সিং সরমানা বনাম গিরিশ চন্দ্র মুখার্জি, ইন্ডিয়ান ল রিপোর্টস ১৭ ক্যাল ৯১১)। (শিশিরবার ঢালী বনাম চিত্তরঞ্জন মন্ডল (বোরহানউদ্দিন জে) (দেওয়ানী) ২০ এডিসি ৩৩৭) Partition Rights of Hindu Widows and Unmarried Daughters Editors’ Note: One Rabindra Kumar Dey was the owner and possessor of 4.81 decimals of land. He died in 1978 leaving behind his wife, two sons and four daughters. One of his sons, namely, Prodip died and the other son Probir converted to Islam before Rabindra’s wife Arati Bala Dey filed the instant suit for partition claiming saham. During the pendency of the suit plaintiff died and Rabindra’s unmarried daughter Shipra Rani was substituted as plaintiff. Question arose as per Daya Bhaga school of law whether the plaintiff Arati Bala Dey inherited from her deceased husband; whether the substituted plaintiff Sipra Rani Dey is entitled to inherit from her deceased father and mother; and whether the plaintiffs are entitled to a decree for partition as prayed for? The High Court Division analyzing the relevant laws, particularly, the Hindu Women’s Rights to Property Act 1937, Caste Disability Removal Act, 1850 and the Bangladesh Laws (Revision and Declaration) Act, 1973 held that when a Hindu governed by the Daya Bagha School of Hindu Law dies intestate leaving any property, his widow becomes complete owner and co-sharer of the property during her life time and she is entitled to be in the same position as a son in the matter of claiming partition. The Court further held that after conversion to the faith of Islam son Probir has lost his right to his father’s property and, as such, the substituted plaintiff Sipra Rani Dey, the unmarried daughter of Rabindra Kumar Dey, is entitled to get the property on partition. Section 3 of the Hindu Women’s Rights to Property Act, 1937: Let us now consider whether a Hindu widow is entitled to get the same share as a son. In this connection reference may be made to section 3 of the Hindu Women’s Rights to Property Act, 1937 (XVIII of 1937). Sub section (1) of section 3 of the said Act says that when a Hindu governed by the Daya Bagha School of Hindu Law dies intestate leaving any property dies, his widow, shall, subject to the provisions of sub-section(3), be entitled to the same share as a sons. Sub-section (3) of section 3 of the said Act further says that any interest devolving on a Hindu widow shall be the limited interest known as a Hindu Woman’s estate, but she shall have the same right of claiming partition as a male owner. Further sub-section (2) of section 1 of the said Act stipulates that it extends to the whole of Bangladesh. Thus from reading of the aforesaid provisions of sub[1]sections (1) and (3) of the Hindu Women’s Rights to Property Act, 1937 it is clear that the widow during the period of her life time she became complete owner and co-sharer of the property and this sub-section 3(3) has the effect of putting the widow in the same position as a son in the matter of claiming partition. (Para 18 and 19) Hindu law does not apply where a person enters into a religious order renouncing all worldly affairs, his action is tantamount to Civil death, and it excludes him altogether from inheritance and from a share on partition. (Para 22) It is pertinent to note that Hindu law is religious law, the right to property is made by that law dependent upon the observance of the tenants of that faith. Consequently, a lapse from orthodox practices of Hinduism would under that law entail forfeiture of the caste and all rights to property and inheritance. Renouncement of religion has a disability, but after the passing of the Caste Disability Removal Act, 1850 (Act XXI of 1950), change of religion is no ground of exclusion of inheritance. But after the repealing of the Act XXI of 1850 by the Bangladesh Laws (Revision and Declaration Act, 1973 (Act No. VIII of 1973) the persons converts into another religion are now forfeited from the inheritance and from the joint family property and fathers property. (Para 22) [17 SCOB [2023] HCD 154] Marriage declaration under Hindu Law- The High Court Division considered that defendant No. 1 was an educated person, and being a doctor, he maintained a Chamber which was frequently visited by the plaintiff and they developed a love affair and, thereafter, went through a wedding at a temple, namely Bazalia Panchanan Sheba Sangha Mondir. They lived together as husband and wife and the plaintiff gave birth to a female child. The High Court Division observed that the Court of appeal being the last Court of fact discussed the evidence on record and decreed the suit and declined to interfere with the judgement and decree. We do not find any illegality or infirmity in the judgement of the High Court Division. We find no merit in the civil petition for leave to appeal, which is dismissed. ..... Dr. Shimul Kanti Sushil =VS= Neli Rudra, [3 LM (AD) 220] Mother of the plaintiffs, as holder of life interest only, could not have sold the entire land- We are of the view that the five deeds of sale executed and registered by Saraswati were not forged and fraudulent. However, since the whole transfer could not be attributed to legal necessity, and since the parties concerned evidently agreed that 4.62 acres of land out of 8.31 acres transferred by way of the five sale deeds, was to be returned to the plaintiffs, the provisions of Hindu law have not been impinged in any way. The appeal is allowed in part and the judgement passed by the High Court Division is set aside. The sale of land in favour of the plaintiffs' sons according to their wish and in accordance with the terms of the Salish, is found to have validly reconveyed 4.62 acres of land in favour of the plaintiffs' sons. We find that the transfer of the remaining 3.69 acres of land by Saraswati to the defendants to meet her legal necessity is valid and is within the provisions of Hindu law. The defendants are hereby directed to hand over possession of 4.62 acres of land to the plaintiffs, if they have not already done so. ...Hachina Aktar Banu (Most.) =VS= Ananta Kumar Sikder, [8 LM (AD) 4] The rules of pure Hindu law that the delivery of property is essential to the validity of gift has been abrogated- The trial Court was absolutely wrong in holding that according to the Hindu law the possession must be handed over to the donee inasmuch as in view of the provisions of section 123 of the Transfer of Property Act, the rules of pure Hindu law that the delivery of property is essential to the validity of gift has been abrogated. The Appellate Court on detailed discussion of the provisions of section 123 of the Transfer of Property Act reversed the said finding of the trial Court and it also rightly relied upon the case of Hari Kison Pandy- Vs-Nages Wari Debi and others, 8DLR 65. Mr. Bhuiyan also conceded that the Appellate Court took the correct view as to the non requirement of delivery of possession of the gifted land to the donee to make a registered deed of gift by a Hindu effective in view of the provisions of section 123 of the Transfer of Property Act. We find merit in the appeal and accordingly the same is allowed.... Tapash Kanti Majumder=VS=Sailandra Kumar Majumder, [9 LM (AD) 59] In the absence of a registered instrument a gift by a person belonging to Hindu community (governed by the Dayabhaga School of Hindu Law) is not valid under section 123 of the Act. Kala Miah vs Gopal Chandra Paul and others 51 DLR 77. Hindu law—Gift. It is sufficient for a valid attestation, if the attesting witnesses received acknowledgement from the executants of the deed that he put his signature or mark on the deed though the attesting witnesses themselves did not see him do it. Kisan Panday Vs. Nageswari Debi (1956) 8 DLR 65. A deity, established for 'puja' or other religious purpose being a jurist person, and being a perpetual minor cannot be a 'Benamder' and any transaction detri- mental to the interest of a deity is void, illegal and non-est in the eye of law. In the instant case by virtue of the deed, exhibit-4 right, title and interest has been conferred/vested upon the deities. Once property vests or confers upon the deity by dedication, gift or other- wise, the deity acquires its right, title and interest......(39) We do not find any evidence that Shebait Makhonlal transferred the suit property to Basonti Bala Sen for legal necessity of the deities. As such the transfer in favour of Basonti Bala Sen and the subsequent transfer by Purna Chandra, successor of Basonti Bala Sen, (nephew of her husband Aparna Charan), to the defendants Nos. 1-5 is void and illegal and non-est in the eye of law.......(51) Jotilal Chowdhury vs. Suruchi Bala Singha (M. Enayetur Rahim J) (Civil) 20 ADC 1