Do grandchildren have a right to their grandfather’s property?

Do grandchildren have a right to their grandfather’s property

Property rights are determined as per personal and statutory laws.

Hindu Law:

Under Hindu law, before deciding the question of the right of grandchildren in the property of grandfather, it is important to know the nature of the property in the hands of the grandfather – whether ancestral or self-acquired.

Ancestral Property:

It is the property which is inherited by a person from his father, grandfather and great grandfather. The property must have passed undivided up to four generations.  Property is divided as per stripes and not as per capita, i.e. share of each generation is determined first then the successive generations divide among themselves the share of their  predecessor generation. 

Hindu law recognises the concept of coparceners. It is a small unit within a joint Hindu family and consists of male lineal descendants’ of four generations. After the amendment of 2005 in the Hindu Succession Act, 1956, daughters are also coparceners along with sons.

Grandchildren – birthright in ancestral property

In the ancestral property (coparcenary property), the coparcener has a birthright. If the grandchildren are coparceners, they have a birthright in the ancestral property of the grandfather. They have a right along with all other coparceners, and therefore, they are entitled to get their share only. They can demand partition and file a suit for declaration and partition.

After the amendment of 2005, when a Hindu having an interest in the ancestral property dies intestate, his interest will devolve as per succession rule provided in Section 8 of the 1956 Act.

Self-acquired property: It is the property which a person:

  • Purchases from his own income/resources
  • A share of property acquired as a result of partition in ancestral property
  • Receives as a gift
  • Acquires as a legal heir through a testamentary document, e.g. Will

A person has absolute right over his self-acquired property and can dispose of it off as he pleases.

Grandchildren have no birthright in the self-acquired property of the grandfather. As per Hindu Succession Act, 1956, the self-acquired property of a Hindu male dying intestate devolves by succession, among the legal heirs as follows:

  • Class I heirs
  • Class II heirs (if no one in class I)
  • Agnates (if no one in class II)
  • Cognates (if no one in agnates)

( List of all the heirs is provided in the schedule of the Act )

Read: Property rights of daughters Under Hindu Law in India

The grandfather has absolute right to deal with the self-acquired property as he desires. If the Grandfather has made a will, the property bequeathes to the person named in the will.

If the grandfather dies intestate, the property devolves as per rule of succession provide in Section 8 of 1956, Act. Grandchildren will not get any share in the self-acquired property of the grandfather as grandchildren are not in Class I heirs. The father, i.e. son of the grandfather who is Class I heir gets the share.

However, if the father had already died before the death of the grandfather, then the grandchildren become entitled to the share in the self-acquired property as children of the predeceased son as they are now included in class I heirs as children of predeceased son/daughter and they inherit equally as other class I heirs.

Muslim Law:

There is no concept of joint family property in Muslim Law. The right of inheritance opens on the death of the person, and the nearer relatives are preferred over, the remoter. If the father is alive at the time of the death of the grandfather, he will get the property and not the grandchildren.

Who Has the Right Over A Woman’s Property?

Who Has the Right Over Woman's Property

Rights of a woman to a property as well as rights of others in her property vary a lot and are influenced by various factors like culture, religion, the social status of the woman and the development level of the society to which she belongs.

A woman may acquire property as:

  • Ancestral property
  • Self-acquired
  • Inherited
  • Received as gift/will

In India, the property rights of women are governed by law enacted by the legislature and personal laws.

A. In the case of Hindu women (Jain, Sikh and Buddhists are included)

The property of a woman devolves as per the Hindu Succession Act, 1956. The Act deals with intestate succession and not wills.

Hindu woman is an absolute owner of the property acquired by her through inheritance, partition, gift, will, in lieu of maintenance or purchased by her. The ownership gets limited in case the property transfer is subject to some restriction.

Sec 15 of the Act, 1956 provides the list of heirs of Hindu Woman’s property if she dies intestate and section 16 prescribes the order of preference:

  • Own children, children of predeceased children, husband – all share equally
  • Heirs of the husband (only when heirs in point 1 are absent)
  • Parents of Hindu woman (only when heirs in point 1 and 2 are absent)

Two exceptions to this rule are

  • If property by a Hindu woman is inherited from her father – in the absence of her children or predeceased children’s children, it goes to the heir of her father and not to the husband.
  • If the property is inherited from her husband or father in law – in the absence of her children or predeceased children’s children, it goes to heirs of the husband.

In case of self-acquired property, it is always advisable to make a will in time so that the property is bequeathed to beneficiaries one desires. As per the scheme of the Act, the self-acquired property of a Hindu Woman would go to heirs of the pre-deceased husband in case she dies intestate and has no issues.

After the amendment of 2005 in the 1956 Act, daughters are also coparceners, and they inherit the share in the ancestral property equally as a son and subject to same rights and liabilities as a coparcener. If she dies intestate, her interest devolves as per 1956 Act. She also has a right to make a will of her share.

Read More: Property rights of daughters Under Hindu Law in India

B.    Muslim woman

Under Muslim Law, there is no distinction between self-acquired or ancestral property for inheritance purposes. Inheritance opens only on the death of a person. Before a person dies, no legal heir has any right in the property. Legal heirs in Muslim law are divided into two categories

  • Sharers
  • Residuary

Sharers get their share first and residuary get what is left.

If A Muslim woman inherited property from any relation i.e. husband, son, father, mother, she becomes the absolute owner of her share and can dispose it. A Muslim woman in inheritance gets half the share of what male heir gets.

If a Muslim woman wants to make a will of her property, she cannot give away more than one-third share of her property, and if her husband is the only heir to her property, she can give two-third of property by will.

A child in the womb of his mother is entitled to inherit if born alive.

C.    For others (Christian, Parsi and Jews)

For women of faiths other than Hindus, Buddhists, Sikhs, Jains and Muslims, succession whether Testamentary or non-testamentary, is governed by India Succession Act, 1925. Blood relatives of woman inherit even in the presence of husband and husband’s relatives. Inheritance laws under this Act are generally gender just.

Section 377 verdict- Victory long-awaited

Section 377 verdict- Victory long-awaited

The world is changing for sure – Law is a reflection of what happens in Society and what is needed too. Therefore it will always change when society is transforming. One of the most striking examples of this has been the abolishing of major aspects of Section 377 of India Penal Code, a Colonial period law, which criminalized homosexuality besides other unnatural acts of carnal intercourse.

The change – Morality is not what the majority thinks

Post the landmark judgement on September 6, 2018, Lesbians, Gays, Bisexuals and Transgender (LGBT), are recognised as people with a distinct and separate identity, who deserve all rights guaranteed under the Constitution as available to any other citizen. They have a right to live with dignity which was to a certain extent barred by Section 377 which brought these under a microscopic criticism. They cannot be discriminated against for their sexual orientation. There is nothing unnatural about their attraction towards the same gender. Their right to privacy cannot be denied to them just because they are in the minority.


Also Read: Rights of Transgender in India


What was the Section 377 of IPC?

Section 377 of Indian Penal Code provides for punishment and fine, for sexual acts against the “order of nature.” As per the Section, unnatural acts like buggery, sodomy and bestiality are punishable. Consensual same-sex relation is also a criminal offence.

“Order of nature” is consensual sexual acts between man and woman only.

The constitutional validity of Section 377 and the Recent Verdict

The story started with the initiative of the NAZ Foundation, an NGO, in challenging the Constitutional validity of Section 377. It stated that the Section 377 so far as it criminalises consensual sexual acts between adults in private, violates the articles of Indian Constitution:

  • Article 14 (equality)
  • Article 19(1)(d) (freedom of speech, assembly, association and movement)
  • Article 21 (right to life and personal liberty)

It was argued that the section had been misused against homosexuals. It is unreasonable and arbitrary to criminalise non-procreative sexual relations. The term “unnatural” act has no nexus with procreative or non-procreative sexual acts.

Earlier the Hon’ble Supreme Court of India had turned down the argument of NAZ foundation and upheld the Constitutional validity of Section 377 stating that it does not criminalise particular orientation or identity. It only identifies certain acts which constitute an offence under Section 377.

  • In 2017, in Puttuswamy’s case, it was affirmed that the right to privacy is a fundamental right and it includes one’s sexual orientation. This decision opened the gates for the recent verdict.
  • The recent verdict of SC, reflects the sentiments of many people in India who now consider homosexuality as natural. SC has read down Section 377 so that consensual sexual relation between homosexuals in private is not a crime.

The ruling has brought cheers to the LGBT community. They have long been deprived of their right to privacy and the right to equality. Progressive International Community has also hailed the verdict as it has provided what everyone expected out of world’s largest democracy.

Section 377 – partially struck down

Section 377 has not been struck down as a whole. Consensual sexual relations among adult homosexuals have been taken out of the purview of the term “against the order of nature”.

Other acts covered under the section remain an offence:

  • Unnatural sex with animals
  • Unnatural sex with children
  • Sex among homosexuals without the consent of any of them

Read: Other Judgement


New Hope

The judgment has given a new hope to LGBT community that their other rights will also fall in place now. They will be respected and loved the way they are irrespective of their sexual orientation. They will be treated at par. No prejudices, no discrimination and no ostracism for being homosexual. More than just the legal victory or change that this decision symbolizes, it is the sentimental achievement that is worth mentioning. This surely will go down in the history of Indian Law as a milestone.

FREEDOM OF SPEECH AND EXPRESSION

freedom of speech and expression

We have been taught from childhood that the right to Freedom of Speech and Expression is a fundamental right guaranteed to the citizens of India. The Right to Freedom is guaranteed along with the seven other fundamental rights mentioned in the Indian constitution.

“Your freedom in a country can be gauged by the freedom you exercise in criticizing it”!!

While the above statement might fit into sarcasm, it holds greater validity than it appears. Freedom of speech is perhaps one of the most crucial aspects in an individual’s list of rights – ironically the most unappreciated too.

The theory of freedom of speech was born long back. England’s adopted freedom of speech in 1689, and it still exists. France adopted the right to freedom of speech and expression in 1789. These further confirmed that the Freedom of Speech and expression goes a long way into the past and is an indispensable right.

The Right to Freedom of Speech and Expression in India

The constitution of India provides Freedom of Speech to every citizen but with its expected set of restrictions. It means that the citizens freely express their views about others, the political system, government, the policies and bureaucracy etc.

However, freedom of speech is restricted on these grounds- national security, moral ground and provocation. As per this right, the citizens of the country enjoy the following rights:

  • Freedom to freely express ideas, opinions and to speak
  • Freedom to peacefully gather without any arms and ammunitions
  • Freedom to form groups, associations and unions
  • Freedom to move freely in the country
  • Freedom to settle in anywhere in the country
  • Freedom to opt for any vocation
  • Freedom to opt for any kind of business or trade which is not forbidden.

Indians also enjoy the right to information and are free to give their opinion on anything including the activities of the government. Freedom of Speech is also given to the mass media. It is free to share all that is going on in the country as well as around the world. Thus all this makes India a democratic country in a true sense.

What makes Freedom of Speech indispensable?

Speech

Freedom of speech is indispensable for the overall growth and development of a person and the nation as a whole. Restricting individuals, society, social and political system hamper the development of the nation and creates discomfort and dissatisfaction leading to stress. ‘A nation whose people are full of discontent fails to grow’.

Thus for the growth of the society, it is essential to have freedom of Speech which helps open up discussions that help in exchange of ideas. This freedom is also important because it makes the government act more responsibly as the government knows that it is being watched and can be confronted or reprimanded for the way it is governing.

The Basis of Democracy

Freedom of speech and expression is also identified as the basis of a democratic nation. A democratic government provides numerous rights to the citizens including the right to form the government. In a democratic state other than electing the government the citizens also enjoy the right to assert their opinion and be vocal about it if they feel that the elected government is not working as per the manifesto declared by it initially. This is why and how the right to freedom of speech forms the basis of democracy and is an essential right in the democratic nations.

Rights of Transgender in India

Rights of Transgender in India

The term ‘Transgender’ is not a title limited to individuals whose genitals are cross mixed, but it is an umbrella term for all those whose expression of sex, identity or conduct differs from the unwritten rules expected to be followed from their birth sex.

A FEW RIGHTS ENSHRINED IN THE CONSTITUTION THAT SAFEGUARD THE TRANSGENDER COMMUNITY

  • To help improve their poor living conditions, the Supreme Court of India titled the transgender community as an economically backward class in 2014, thus entitling them to reservations and benefits like skill enhancement, 2% reservations in public jobs, legal aid, pre and post retirement allowances.
  • The Ministry of Drinking Water and Sanitation permitted the transgenders in April 2017 to utilise the toilet facilities of their own will in all states in public. With this step, the authorities have successfully broken the ‘toilet’ stigma attached to this gender. Mysore city became the only city to construct a separate public restroom for the ‘third gender’.
  • Law makes it illegal to compel a transgender person to relinquish residence, undress or parade them naked, push them to beg or any varied sort of bonded labour. These acts shall be penalised with up to two years of incarceration, coupled with a fine and also seeks amendments in the law to incorporate cases of sexual molestation on the transgender community.
  • Law criminalises refusing a transgender his right to access any public property or causing them any bodily or psychological harm within and outside the premises of their home.
  • OBC status is guaranteed to all transgenders not birthed as SC or ST and entitles them to due reservation rights under a plethora of categories for the same.
  • The newly introduced Bill recognises ‘Transgender’ as the third gender and renders them free to be identified as ‘man’, ‘woman’ or ‘transgender’, regardless of any surgery that they might have undergone. They can’t be called the ‘other’ gender, but a transgender. A certification of identity as a transgender is to be attained from a state level authority, and the same should be acceptable as a documented proof for any official document like passport, aadhar card, etc.
  • Law also ensures that transgender adults and minors enjoy the right to equal treatment in all spheres, the right to life, dignity and personal liberty as guaranteed by the Constitution of India along with all human rights under Articles 14, 15, 16 and 21.
  • The Court also safeguards a transgender’s gender expression enforced by Article 19 (1) (a) and holds that no restriction is supposed to and can be placed on one’s appearance or choice of dressing.
  • All state-owned bodies shall provide education and not discriminate against any transgender student. A transgender student will be provided with the same scholarship/privileges, free-waiver, books, hostel facilities and subsidised rates. Also, all educational institutions need to maintain in order an anti-discrimination body to monitor any prejudice against transgender students.