Coparcenary is a creature of Hindu law and cannot be ,created

In a case of BHAGWAN DAYAL Vs. MST. REOTI DEVI AIR 1962 SC 287 it is observed as follows: “Coparcenary is a creature of Hindu law and cannot be ,created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by consent, express or implied, of the members of the family, any other member or members can carry on business or acquire property, subject to the limitations laid down by the said law, for or, on behalf of the family. Such business or property would be the business or property, of the, family. The identity of the members of the, family is not completely last in the family. One or more - members of :that family can start a business or acquire property without the aid of the joint family Property, but such business or acquisition would his or their acquisition. The business so started or property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But he or they need not do so, in which case the said property would be his or their self- acquisition, and succession to such property would be governed not by' the law of joint family but only by the law of inheritance. In such a case if a property was jointly acquired by them, it would not be governed by the law of joint family ; for Hindu law does not recognize some of the members of a joint family belonging to different branches, or even to a single branch, as a corporate unit.. Therefore, the rights inter se. between the. members who have acquired the said property would be subject to the terms of the agreement where under it was acquired.”

WHEN THERE IS PARTITION DISPUTE REVENUE RECORDS SHALL NOT BE CHANGED SAYS KARNATAKA HIGH COURT

GOVERNMENT OF KARNATAKA

Karnataka Government Secretariat,
M.S.Building,
Bangalore,

Circular Number No. RD 79 MRR 2002                                                                           Dated: 20th February 2003.

S l No 1860/Section RTC

Subject Reg- Co-parceners
                                                                                                CIRCULAR

There is some confusion in recording the name of the purchaser in the Mutation Register on the sale of undivided interest of one of the Co-parceners of the land. Some Revenue Inspectors are insisting upon the landholder to first get the land partitioned and then approach for mutation; whereas some Revenue Inspectors are effecting mutations by recording the name of the purchaser and even giving separate rights to the purchaser by effecting phodi in respect of the land purchased by him.

In a case reported in ILR 1999 KAR 1484 the Hon'ble High Court has held as follows:

"No doubt, as pointed by Shri Adhyapak the respondent 3 and 4 acquire the undivided interest of the 2nd respondent in respect of the land bearing sy.no.772/2. It is well settled that so long as the partition of the family properties does not take place, what the respondents 3 and 4 acquire in the land in question is only the undivided interest of the 2nd respondent. Under these circumstances, it was not permissible for the Tahsildar to enter the name of respondents 3 and 4 in respect of the land in question on the basis of the sale deed – Annexure A and give separate sub-numbers as has been done in Annexure-E. If the respondents 3 and 4 have acquired right, title and interest of the 2nd respondent in respect of the land in question, the remedy open to the respondents 3 and 4 is to seek partition of the family properties. Till that is not done, it is not permissible for the Revenue Authorities to enter the name of the purchaser in respect of the joint family properties".

It, therefore, implies that it is not correct for the Revenue Department to enter the name of purchaser in such cases where one of the Co-parceners sells his undivided interest. The purchaser will have to seek for partition of the family properties. Till it is done, revenue authorities should not enter name of the purchaser in respect of joint family properties in the mutation register.

However, if all the joint holders agree to sell a portion of their joint property to a purchaser then the authorities can certainly enter the name of the purchaser in respect of the extent purchased by him. In such cases the remaining property continued to be joint in the name of the joint owners.

Further, if one of the Co-parceners sells his undivided interest with the consent of all the other joint owners then his name can be removed and the name of the purchaser can be inserted. To illustrate these points following examples are given:

Let us presume there are 3 joint owners holding 6 acres of land. If all of them jointly sell one acre of land to D then it is permissible for the revenue authorities to mutate one acre of land in favour of D. Then RTC would be as follows:

A, B, C – 5 acres (jointly owned) D – 1 acre

In the second case, if C sells away his portion of land, which, for the sake of argument, say one and half acre (as agreed by all 3 owners) then RTC would look as follows: A, B – 4.20 acres (jointly owned) D – 1.20 acre

In both these cases it may noted that the consent of the other joint owners either at the time of executing sale deed or at the time of effecting mutation is necessary.

Above guidelines be kept in mind by all the concerned. This Circular is also available at the Revenue Department Internet site

http://www.revdept.kar.nic.in.
(RAJEEV CHAWLA)
Additional Secretary to Government
Revenue Department (Land Reforms)

To,
All Deputy Commissioners.
Foot Notes
For any suggestions / clarifications, please send mail to Mr. Rajeev Chawla (Additional Secretary)

MUSLIM LAW OF SUCCESSION TO PROPERTY

In a case before Karnataka High Court in Smt. Ashabi vs Smt. Faziyabi And Ors. (ILR 2004 KAR 3599) "A person who according to Muslim law is an heir of the deceased remains so and gets his legal due. He or she cannot be excluded either by other heirs and survivors of the deceased or even under a specific direction left in that behalf by the deceased himself. One can be excluded from inheritance only under a rule of Muslim law, if applicable in India. It is also well settled that only that relative can be an heir of the deceased who is alive at the moment of the latter's death. A person who died before the deceased cannot be his heir……………….It is a well- recognised proposition of law that the estate of a deceased Mohammedan devolves on his heirs in specific shares at the moment of his death."

The Shariat Act was passed by the Central Legislature in 1937. It became for the first time extended to Part "B" States by virtue of the Central Act 48 of 1959 (which came into force on February 1, 1960), called the Miscellaneous Personal Laws (Extension) Act, 1959, which amended its extent clause in such a way as to apply the statute to whole of India except to Jammu and Kashmir. The principal operative section of the said Act is section 2, which reads : "2. Notwithstanding any custom or usage to the contrary, in all question regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq ila, zihar, lian, khula and mubarrat, maintenance, dower, guardianship, gifts, trusts and trust properties and wakfs (other then charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)."

Supreme Court in Mohammad Yunus v. Syed Unnissa. AIR 1961 SC 808, Interpreting the force or effect of the words in section 2 of the Shariat Act to the effect that in all matters enumerated therein, the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law, their Lordships state that the statute would apply not only to suits and proceedings instituted subsequent to the coming into force of the statute but also to suits and proceedings pending on that date whether in original courts or tribunals or in appeal.


Inheritance is an integral part of Shariah Law and its application in Islamic society is a mandatory aspect of the divine teaching of Islam. Muslims inherit from each other as stated in the Qur'an: “ لِّلرِّجَالِ نَصيِبٌ مِّمَّا تَرَكَ الْوَالِدَانِ وَالأَقْرَبُونَ وَلِلنِّسَاء نَصِيبٌ مِّمَّا تَرَكَ الْوَالِدَانِ وَالأَقْرَبُونَ مِمَّا قَلَّ مِنْهُ أَوْ كَثُرَ نَصِيبًا مَّفْرُوضًا ” {“4:7 There is a share for men and a share for women from what is left by parents and those nearest related, whether, the property be small or large - a legal share.“} [An-Nisa 4:7] Hence, for Muslims in India there is a legal share for relatives of the deceased in his estate/property. When a person dies there are four rights that need to be performed his property:
1. Pay his/her funeral and burial expenses
2. Pay his/her debts
3. Execute his Will/bequest (max 1/3 of his/her property)
4. Distribute remainder of his/her estate/property according to Shariah Law


In relation to inheritance, Mohammad said: Narrated Ibn 'Abbas: “The Prophet said, "Give the Fara'id (the shares of the inheritance that are prescribed in the Qur'an) to those who are entitled to receive it. Then whatever remains, should be given to the closest male relative of the deceased." Thus it can be seen that under Muslim Law no stranger outside the family shall succeed under Shariat Law of Inheritance or Under Quranic Commands.

PRESUMPTION OF ENTRIES IN REVENUE RECORD - HOW FAR BE PRESUMED

In a case before Karnataka High court in Bhimappa Channappa Kapali (Deceased) By L.Rs And Ors. vs Bhimappa Satyappa Kamagouda And Ors (ILR 2002 KAR 3055,) it is vehemently held that “Though Section 133 of the Karnataka Land Revenue Act which deals with presumption regarding entries in the records providing that an entry in the record of rights and a certified entry in the register of mutations or in the patta book shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor, before that presumption could be raised it should be shown that such entries are duly certified entries under Section 129 and thereafter such entries are made in the record of rights. Prior to the making of the entries in the name of the appellant, the entries in the revenue records stood in the name of Gerappa, the husband of Shivawwa. After the death of Gerappa, Shivawwa has executed a registered gift deed in favour of the first respondent. However, first respondent acquired a right in the land in question by virtue of a registered document. The registering authority under Section 128 of the Land Revenue Act is obliged to inform the concerned revenue authorities about the acquisition of right by first respondent in the land in question. Before a change of entry is made, the revenue authorities were under an obligation to notify the owner of the land in question and only after hearing his objections and after enquiry and passing an order in the prescribed manner they shall certify the entry and thereafter make the necessary entry in the register of mutations. If entries are made in this manner after complying with the provisions of Sections 128 and 129, under Section 133 the Court shall presume such entries to be true until the contrary is proved. In the instant case before altering the entries admittedly no notice was given to the first respondent, no enquiry has been held and the proceedings pending between the parties make it clear that the entries made in the revenue records are illegal and these facts and circumstances are sufficient to rebut such presumption.” 

REVENUE COURTS TO DECIDE ON UNDISPUTED FACTS

In C.N. Nagendra Singh vs The Special Deputy Commissioner And Ors.    (ILR 2002 KAR 2750) The Honble High court of Karnataka Held that : “The decision of the Revenue Courts has to be necessarily based on the undisputed facts.”