LC 0602 Family Law II
Module 01 Hindu Joint Family System
Hindu joint family
Daughter
Illegitimate son
Unborn child
Addition of members
Birth
Marriage
Adoption
Removal of members
Death
Conversion
Marrying a non hindu sma act 1954
Giving member in adoption
Daughter removed by marriage
Even if a one member of the family starts living separately then also he holds his joint status for the purpose of his share
V. M Patel vs KM Patel 2000
Right's of Karta
1 Right to acknowledgement.
2 Right to Compromise
3 Right to Enter into contract
4 Right to Enter into partnership
5 Right to Income
6 Right to Management
7 Right to Manage Joint Hindu Family Business
8 Right to start business with consent of other
9 Right to take loan for joint Business
10 Right to representation
11 Right to refer dispute to arbitration
Duties of Karta
1 Duty to pay antecedent
2 Duty not to alienate coparcenary property
3 Duty to spend reasonably
4 Duty not to start new business without the consent of the other coparcenor's
5 Duty to Render true accounts
6 Duty to Realize family debts
Module 02 Intestate Succession
MODES OF EFFECTING PARTITION
1 by father
2 by agreement
3 by notice
4 by suit
5 by arbitration
6 by declaration
7 by cessation of in common residence & mess
8 by conduct
9 by conversion
10 by will
11 by marriage under spa 1954 section 19
Who can claim partition
1 Every adult coparcenary
2 son grand son & great grand son
3 Son born after partition
4 Adopted son
5 Minor coparcener
6 purchaser of undivided coparcenary interest
7 Absentee coparcener
RE-OPENING OF PARTITION
On the grounds of
- Coercion
- Undue influence
- Fruad
- Misrepresentation
- Mistake
- Disqualified coparcener
- Minor coparcener
- Absentee coparcener
- Adopted son
- Son in womb
- Son born after partition
- Unequal distribution of property
- After partition made it is discovered that property allotted one coparcener did not belong to the family.
Alienation of coparcenary property
1) Father power of alienation
A. Mitakshara Father's power of alienation
- for legal necessities
- for benefit of estate
- as a gift of ancestral movable & immovable property with in reasonable limit out of love & affection
- as a gift of ancestral property with in reasonable limit for pious purpose
B. Dayabhaga Father's power of alienation
Full power of alienation over self acquired as well as coparcenary property.
Both properties movable & immovable
2) Kartas power of alienation
- for legal necessity
- for benefit of estate
- for pious purpose
3) Alienation by the whole body of the coparcener
4) Alienation by the SOLE SURVIVING coparcener
Hindu Succession Act-1956
MALE DYING INTESTATE.
I) CLASS -1 ( Section-8). (9&10)
II) CLASS-2
III) AGNATE
IV) COGNATE
V) GOVERNMENT
I) CLASS-1 ( Section-8)
1) Mother
2) Widow
3) Daughter
4) Son
5) Widow of a predeceased son
6) Son of a predeceased son
7) Daughter of a predeceased son
8) Widow of a predeceased son of a predeceased son
9) Daughter of a predeceased son of a predeceased son
10) Son of a predeceased son of a predeceased son
11) Daughter of a predeceased daughter
12) Son of a predeceased daughter
AFTER AMENDMENT IN 2005
1 Son of a predeceased daughter of a predeceased daughter
2 daughter of a predeceased daughter of a predeceased daughter
3 daughter of a predeceased son of a predeceased daughter
4 daughter of a predeceased daughter of a predeceased son
Section 09- modes and manner of distribution of share among class 1 & class 2
Class-1 take simultaneously and exclude other heirs of class 2 agnate & cognate
Class-2 take category wise first category excludes second category
With in that category take equally
Section-10 distribution of shares among class-1
II) CLASS -2
1 Father
2 son's daughter's son
Son's daughter's daughter
Brother
Sister
3 daughter's son's son
daughter's son's daughter
daughter's daughter's son
daughter's daughter's daughter
4 Brother's son
Brother's daughter
Sister's son
Sister's daughter
5 Father's father
Father's mother
6 Father's widow
Brother's widow
7 Father's brother
Father's sister
8 Mother's father
Mother's mother
9 Mother's brother
Mother's sister
FEMALE DYING INTESTATE
Hindu Succession Act-1956
Section-15
1) sons daughters & husband ( Including children of any pre-predeceased son or daughter)
2) Heirs of husband
Class 1
Class 2
Agnate
Cognate
3)Father & mother
4) Heirs of the father
Class 1
Class 2
Agnate
Cognate
5) Heirs of the mother
Son Daughter ( Including children of any pre-predeceased son or daughter)
Order of distribution section 16
DISQUALIFICATION OF HEIRS HSA
MURDERER DISQUALIFIED S-25
CONVERT'S DESCENDANTS DISQUALIFIED S-26
SUCCESSION WHEN HEIRS DISQUALIFIED S-27
DISEASE,DEFECT ETC NOT DISQUALIFIED S-28
ESCHEAT S-29
Module 05 Gifts under Muslim Law (Hiba)
Synopsis
Introduction
Meaning & definition
Essential's of Hiba
Kinds of Hiba
Revocation of Hiba
Meaning
Hiba means any transfer of property by one person to another without any consideration & involves offer acceptance & delivery of goods
Essentials
Parties
Subject matter
Extent
Formalities
(Pesf)
There are two way to give the gift
1 hiba
2 ariyat
Marz-ul-maut
Gift on death bed
Only 1/3 rd of his property gift
Not to his legal heir
---Essentials
---Apprehension of death
---External indication
---Eventual death
Case law- shamshed ali shah vs hashan shah
Pneumonia
Formalities
1 offer-ijab
2 acceptance -qabool
3 delivery of possession-qabza
Kinds of hiba
1 hiba
2 hiba-bil-iwaz=gift for consideration
3 hiba-ba-shartul-iwaz
Revocation of gift
1 before delivery of possession
2 after delivery of possession
Shia Sunni
By declaration. Court
No consent of donee req. Consent req.
PRE-EMPTION (SHUFA)
Three person
Vendor
Vendee
Pre-emptor
Case law Govind dayal vs inaytullah
Kinds of pre-emptor
1) Shafi-i-sharik-co-sharer/co-owner
2) shafi-i-khalit-person who use same right of way or discharge of water
3) shafi-i-jar owner of an adjoining property
Three demand
1 st demand- talab-i-mowasibat
2 nd demad-talab-i-ishad
3 rd demand-talab-i-tamlik
Pre-emption not execise
Lease
Mortgage
Alienation
Gift
Bequest
WILL
A will/testament/wasiyat has been defined as an instrument by which a person makes disposition of his property to take effect after his death.
--It is a gratitous transfer of property
--It comes into effect on the death of person making it.
--the person who makes the will is called testator or legator
Modes of transfer of property
1 Act of parties
2 operation of law
3 order of court
Essentials
1 both parties are competant Legator & legatee
2 free consent
3 formalities
4 subject matter of the will
5 legator must posses testamentory right
Child in mother's womb
Murderer of legator
Restriction on the power of muslim to make a will
1) As to quantum
1/3 rd of property after deducting the funeral expenses & all the debt
2) As to who can be a legatee
Revocation of will
Expree- written words oral
Implied- by conduct
Distroy damage
Lapse of legacy
Legatee dies before legator
Sunni law - property will remains with legator
Shia-property will go to heirs of legatee
Christian
Indian succession act 1925 (32-48)
@32 wife husband lineal decendant kindred
33 Right's of widow
@34 gover
35 right's of widower
@36 lineal decendant
37 child/children only
38 no child but grand child/grand children
39 only great grand children or great great grand children
40 lineal decendant but diff diff degree
@41 No lineal decendant
42 intestate father living
43 Father dead but mother brother sister living
44 Father dead & lineal decendant dead but
Mother alive brother sister alive & out of brother sister one died
45----XX
46 father dead & mother living no brother sister or nephew or niece
47 Father dead mother dead lineal decendant dead
48 Not Father mother lineal decendant brother & sister
Parsi
50-abc
51-widow, children parents
Privileged will
Section 66 in The Indian Succession Act, 1925
Revocation of privileged will
Section 72 in The Indian Succession Act, 1925
By marriage of testator
By making unprivileged will or codicil
An act expressing an intention to revoke
By burning tearing or destroying
-- testator himself
-- some other person in the testator's presence & by testator's directions
Unprivileged will ( Any testator other than sam)
Section 63 in The Indian Succession Act, 1925
Revocation of Unprivileged will
Section 70 in The Indian Succession Act, 1925
By marriage of testator
By another will or codicil
By some written declaration for revoking the will
By burning tearing or destroying
RIGHT'S OF COPARCENER
1 Right to alienation
2 Right to ask account
3 Right by birth
4 Common interest & unity of possession
5 Right by survivorship
6 Right to enforce partition
7 Right to renounce share
8 Right to restrain & unauthorised act
9 Right to income
10 Right to impeach unauthorised alienation
11 Right to manage
12 Right to maintaince
13 Right to make self aquisition
14 joint possession & enjoyment
(AABC SERRII MMM) J
RIGHT & REMEDIES OF AN ALIENEE (cheat)
ALIENEE:- The person who purchase the share of any coparcener is called alinee
Right's & Remedies of an alienee
1 Right to joint possession
2 Right to partition
3 Right to sue for partition after coparcenor's death
4 Right to sue for performance
5 Right to share on partition
6 Right to past profit
7 Right to impeach privious alienation
8 purchase takes subject to equities
LC 0603 Law of Contract II
Module 01 Contracts of Indemnity - Sections 124-125 of the Indian Contract Act, 1872
SECTION-124
A contract by which one party promises to save the other from loss caused to him by the conduct of the promisor himself, or by the conduct of any other person.
Essentials of contract of indemnity
1) There must be loss caused to indemnity holder.
2) The loss must be caused due to the act of of the indemnifier or any other person.
3) All essentials of the valid contract.
4) There must be a expressed or implied contract
What are the rights of indemnity holder
All damages
All cost
All sum
Case law Gajanan moreshwar vs Moreshwar madan
Shyamlal vs Abdul salad
Module 02 Contracts of Guarantee - Sections 126 to 147 of the Indian Contract Act,1872
GUARANTEE
A contract of guarantee is a contract to perform the promise or discharge the liability of a third person in case of his default.
Essentials of contract of guarantee
1) There must be a expressed or implied contract.
2) All essentials of the valid contract.
3) There should be a principal debtor.
4) Benefit to the principal debtor is sufficient consideration.
5) Conset of the surety should not have been obtained by misrepresentation or concealment.
Section 142:-Guarantee obtained by misrepresentation invalid
Section 143:-Guarantee obtained by concealment invalid
SECTION-126
124. Contract of indemnity.
125. Rights of the indemnity-holder when sued.
126. Contract of guarantee principal debtor,surety, creditor.
127. Consideration for guarantee
128. Surety's liability
129. Continuing guarantee
130. Revocation of continuing guarantee
131. Revocation of continuing guarantee by surety's death
DISCHARGE OF SURETY'S FROM LIABILITY
130. Revocation by the surety.
131. By the surety's death.
133. By variance in the terms of the contract.
134. By release or discharge of the principal debtor
135. When creditor compound's with principal debtor, gives time , or agrees not to sue.
139. By creditor's act or omission impairing surety's eventual remedy.
141. By loss of the security by the creditor.
Module 03 Contracts of Bailment - Sections 71, 148-171, 180-181 of the Indian Contract Act 1872
BAILMENT
SECTION 148
A bailment is the delivery of goods by one person to another person for some purpose upon a contract that they shall when the purpose is complete be returned or otherwise disposed of according to the directions of the person delivering them.
The person delivering the goods are called bailor the person to whom they are delivered is called the bailee..
Essentials of bailment
1.Delivery of goods for some purpose.
2.Return of goods after the purpose is complete or disposal according to the bailor's directions.
1.Delivery of goods for some purpose.
Delivery of goods there are two types
1) Physical/actual
2) Constructive/symbolic
Delivery must be for some purpose
Jagdish chandra vs punjab national bank
Ultzen vs Nichols
If the owner maintains control over the goods there is no bailment
Pillai vs Visa Lakshmi
National bank of lahore vs Sohanlal
Ram gulam vs Govt.of U.P
2.Return of goods after the purpose is complete or disposal according to the bailor's directions.
Kalyani Breweries Ltd
Vs
State of west bengal
Carrier or transporter-not bailee acc to sec 148
Hiring of locker -not bailment
Atul mehra vs bank of maharashtra
Different kinds of bailment(RBC)
1 Reward 2 Benefit. 3.Consent of bailee
Gratuitous. Bailor. Voluntarly
Non Gratuitous. Bailee Involuntarly
Both
DUTIES OF THE BAILEE
1 Duty to take reasonable care of the goods bailed.(Section 151-152)
2 Duty not to make unauthorised use of the goods bailed. (Section 153-154)
3 Duty not mix bailor's goods with his own goods.
(Section 155-157)
4 Duty to return the goods on fulfilment of the purpose.( Section 159-161 165-167)
5 Duty to deliver to the bailor increase or profit on the goods bailed. ( Section 151-152)
RIGHTS OF BAILEE
1 Right to recover necessary expenses incurred on the bailment. ( Section 158)
2 Right to recover compensation from the bailor.
( Section 164)
3 Right to have a lien on the goods bailed.
( Section 170-171)
4 Right to suit against a wrongdoer.
( Section 180)
Module 04 Contracts of Pledge - Sections 172 – 179 of the Indian Contract Act 1872
Pledge
Section 172
A pledge in which the goods are delivered by one person to another person AS A SECURITY FOR PAYMENT OF A DEBT or performance of a promise.
Module 05 Contracts of Agency - Sections 182 – 238 of the Indian Contract Act 1872Rights of the partners
Indian partnership act 1932
1) Right to take part in the conduct of the business Section 12(a)
2) Right to express opinion Section 12(c)
3) Right to have access to books of the firm 12(d)
4) Right to share profit 13(b)
5) Right to interest on capital & advances 13(c) & (d) (06% per annum)
6) Right to indemnify 13(e)
Duties of the partners
1) Duty to carry on the bussiness to the greatest common advantage (section 9)
Bentley vs craven
2) Duty to be just & faithful to each other (section 9)
3) Duty to render true accounts (section 9)
4) Duty to render full information of all things affecting the firm (section 9)
5) Duty to indemnify for fraud (section 10)
6) Duty to diligent (section 12&13)
7) Duty to properly use the firms property (section 14&15)
8) Duty to not earn personal profit or compute the same business.
Modes of creation of agency
1 Acts done with principal's actual authority.
Express authority 186
Implied authority 187
Extent of Implied authority 188
2 Agent's authority in an emergency. Section 189
3 Principal bound by Estoppel. Section 237
4 Principal bound by Ratification.(section 196-200)
1)Act done on behalf of another section 196
---keighley maxted & co v durant
2)Principal should be in existence and competent to contract.
---Kelner v Baxter
3)Ratification may be express or implied 197
4)Ratification with knowledge of facts.198
5) Ratification of whole transaction.199
6) Ratified act should not be injurious to a third person. 200
7) Ratification With in reasonable time.
---Badri prasad vs State of M.P
5 Agency in husband-wife relationship.
Module 06 Contracts of Sale of Goods - The Sale of Goods Act, 1930
CONDITIONS AND WARRANTIES
SECTION 12(2)
A condition is a stipulation essential to the main purpose of the contract.
SECTION 12(3)
A warranty is a stipulation collateral to the main
Purpose of the contract
Definition of condition
Definition of warranty
breach of condition
breach of warranties
Option to the buyer on breach of condition by seller
1) treat the contract as repudiated
2) waive the condition
3) treat breach of condition as a breach of warranty
Implied conditions
1) implied condition as to the title 14(a)
---Rowland v. Divall( corichi gadi)
2) implied condition in sale by description 15
---Arcos v EA Ronaasen & Son(1/2 inch timber)
3) implied condition in sale by sample 15
---Wallis vs Pratt(seeds)
Buyer beware Caveat emptor- Baldry v. Marshall(bugatti car)
Exception
1) Implied condition as to quality or fitness 16(1)
---Raghava Menon vs Kuttappan Nair(watch)
2)implied condition of merchantable quality 16(2)
---shivalingappa shankarppa mendre vs balkrishna and son(toor dal)
Implied warranties
1) implied warranty of quiet possession 14(b)
---Niblett v Confectioners' Material(nissly trademark nestle)
2) implied warranty againt encumbranches 14(c)
No comments:
Post a Comment