Equal inheritance rights to daughters – Supreme court judgement backs daughters right to property

Equal inheritance rights to daughters

A fundamental principle of any progressive and modern society is the equality of sexes. The landmark judgement of the honourable Supreme Court for equal inheritance rights for the daughters is a highly welcomed change in the judicial system of India which will finally rectify the discriminatory practice and uphold the fundamental right-Equality for all!

Landmark judgement-Final nail in the coffin of male primacy in division of Hindu ancestral property. Daughters will have equal inheritance right with those of sons in father’s, grandfather’s and great grandfather’s property was declared by the highest court in India-supreme court, in a landmark judgement.

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The confusion arising out of the conflicting interpretations of Section 6 (amended) of the Hindu Succession act-2005 were ironed out by a bench of justices- Arun Mishra, S Abdul Nazeer and MR Shah in a 121 page judgement. Daughters born before September 9, 2005 could claim equal inheritance right. This judgement confers the status of coparcener (equal inheritance right) on the daughter in the same manner as the son and with the same liabilities and rights.

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The three-judge bench said, “Once a daughter, always a daughter… a son is a son till he is married. Elaborating on the remark the bench upheld that a daughter shall remain a coparcener (one who shares equally with others in inheritance of an undivided joint family property) throughout life, irrespective of the fact whether her father is alive or not.” A batch of appeals were being heard by the top court where the issue was raised and then this landmark judgement was passed. In 2005 when the law was amended, it did not provide a retrospective operation.

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Limitation Period for Applying for Probate of a Will: an Analysis Based on Court Judgments

Limitation Period for Applying for Probate of a Will an Analysis Based on Court Judgments

In a recent case the High Court of Calcutta has examined the question of limitation for applying for probate of a Will and has delivered a judgement on 11.06.2020.

As per the facts of the case, the testator died on 13th June 1993. He had made and signed a Will on 16th April 1989.

The application for probate was filed on 8th September 2014 by the executor named in the Will.  One of the legal heirs applied for rejection of the probate application on the ground that it is barred by Article 137 of the Limitation Act. Article 137 is a residuary clause and provides, for filing of a suit, within three years from the date when the right to sue accrues.

In the present case, it was argued that the right to file accrued on the date when the testator died, i.e. on 13.06.1993. Therefore, the application for probate should have been filed within three years from 13.06.1993.  But the same has been filed in September 2014, i.e. after 21 years without explaining the delay.

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The other party contended that the right to apply for probate accrues only when a challenge is made to the Will, or it is disputed. The time of three years does not run from the date of death of the testator.

The High Court has ruled that Article 137 applies to the cases of application for probate and the time envisaged will be activated once the right is denied, giving rise to a consequent need to assert the right. The right to file accrues when the Will is disputed, or it becomes necessary to apply for probate which may not necessarily be within three years from the date of the deceased’s death. 

The High Court followed the interpretation given to the words “When the right to sue accrues” (as appearing in Article 113 and Article 137 of the Limitation Act) by Hon’ble Supreme Court recently in a case of Shakti Bhog Food Industries Limited. In this case, it was held that Article 113 does not specify happening of a particular event for computing the limitation period. It only refers to the accrual of the cause of action based on which the right to sue would accrue. The period of limitation would begin from the time when the right to sue accrues and not necessarily from the time when the right to sue accrues first.

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Applying the same principle in the present case, High Court has held that cause of action in case of probate cannot be interpreted to have occurred only at the time of death of the testator.

The Court further stated that Section 293 of the Indian Succession Act provides for a cooling-off period of expiration of 7 days from the day of the testator’s death before probate of a Will can be granted. There is no outer limit within which an executor has to take out an application for grant of probate.

The Legislature has deliberately provided no endpoint for filing such application. The purpose of probate is to give effect to the Will of the testator. It should not be defeated merely by delay on the part of executor.

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In an application for grant of probate, the applicant claims no right. There is a demand for permission of the court to perform a duty cast by the author of the testament upon the executor concerning the administration of his estate.

Right to file for probate is a continuous right and therefore, Article 137 cannot be construed as limiting the period to three years from the date of death of the testator. If done so, it would frustrate the very object of the law preserving the wishes of a testator.

The decision has made it clear that the period of limitation for matters under Article 137 of the Limitation Act, would begin from the time when the right to sue accrues based on a cause of action which may or may not have occurred at the first point of time.

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Adverse Possession

Judgement on Adverse Possession

In a recent decision on 7th August, 2019, the Honourable Supreme court of India has passed a judgement wherein it has been held that adverse possession has roots in a principle that awards ownership of a land to a person who makes the best or highest use of land. It means that if a person who is in possession of the land for 12 or more years and maintains the property and improves the property has a better claim over it than the owner who neither visits the property nor cares for the property. By way of this judgement, any person who is taking care of the property for more than 12 years without any interference can claim a title/ownership over the property through the court. It is therefore advisable that any NRI who is having immovable property in India and that property has been entrusted to someone as a caretaker without any agreement or existing documents, NRI cannot claim ownership right over the property after the expiry of 12 years, if that person is enjoying uninterrupted interference over that property.

To ensure that the property of NRIs is not claimed by any caretaker who has been entrusted by them, NRI should keep in mind the following instructions:

  • Ensure that a lease and licence agreement is prepared with the person who is appointed as a caretaker.
  • Ensure that a proper rent agreement is prepared if the property has been given on rent and it should be updated from time to time.
  • Ensure that even if any relative/friend is entrusted to take care of property, there should be a proper written agreement.
  • Ensure that the property tax and maintenance charges are paid by NRIs directly at regular intervals.
  • Ensure that utility bills like electricity and water bills should be in the name of the owner of the property.

We hope that this article will be helpful for the NRIs to safeguard their property in India in view of the judgement of the Honourable Supreme court.

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Daughters have equal shares in Ancestral Property,even though they were born before enactment of the Hindu Succession Act – A Judgement by Supreme Court

JudgemePrakash-v-Phulavati-2016-2-SCC-36

The Supreme Court has ruled that daughters born before the enactment of the Hindu Succession Act of 1956 are entitled to equal shares as the son in ancestral property. The verdict was issued in an appeal filed by daughters who challenged a decree in a partition suit that excluded them from the partition.

The Partition suit was filed in 2002 by the grandson of the deceased propositus of a joint family. The court found that daughters were not entitled to share in the property because they were born before 1956, the year the Hindu Succession Act was enacted. In the judgement, the Trial Court also denied them the benefits of the 2005 amendment, which gave daughters the same coparcenary status as sons. The High Court upheld the decree of Trial court.

The Supreme Court ruled that the courts below had made a mistake in the judgement that daughters were not empowered to partition because they were born before 1956. Under Section 6 of the Law, when a coparcener that left behind any female sibling designated in Class I of Schedule to the Law (which also includes a daughter), his undivided interest in Mitakshara Coparcenary property would not devolve upon the surviving coparcener by survivorship but upon his heirs by intestate succession. Therefore, the deceased coparcener interest would devolve by intestate succession on his heirs, including his daughters.

The Court has also held in judgement in favor of the daughters that they were entitled to the benefit of 2005 amendment as well, and that basis also they were designated to shares. It was settled in Prakash v. Phulavati (2016) 2 SCC 36 that right under the amendment area available to the daughters living on the day of the act, regardless of when they were born. In the present case, the bench comprising Justice A.K Sikri and Justice Ashok Bhushan further explained this and stated that the amendment stated that a daughter ‘shall by birth’ would become a coparcener in her own right in an equal way as son. Therefore, the daughter will receive the coparcenary right by virtue of amendment, ‘since birth’. It was observed as follows: –

Section 6, as amended, provides that on and from the initiation of the amendment Act, 2005 the daughter of the coparcener shall by birth become the coparcener in her rights in the same way as the son. It is obvious that the status is given to the sons under the old section and the old Hindu law was to treat them as coparceners since birth. The amended provision now also legally recognizes the rights of coparceners of daughters since birth. The section uses the terms in the same way as the son. It should, therefore, be evident that both the sons and the daughters of a coparcener have been given the right of becoming coparceners from birth. It is the fact of birth in a coparcenary that creates the coparcenary, and therefore the daughters and sons of a coparcener become coparceners by birth. The devolution of coparcenary property is the later stage and an outcome of the death of a coparcener. The first stage of a coparcenary is certainly its creation, as explained above, and as is well recognized.

The fact that the lawsuit was filed in 2002 was also considered irrelevant. The Court stated in the judgement that so far as partition suits are concerned, the partition becomes final until only on the passing of final decree. The decree was issued in 2007. Here the powers of the daughters were established in 2005, and since the Trial Court ought to have taken into account that aspect when adopting the decree in 2007.

The Court also noted and mentioned in the judgement that the 2005 amendment was brought in on the touchstone of equality, thus seeking to remove the perceived disability and prejudice faced by a daughter.

The major changes brought forward about in the Hindu Succession Act of 1956 by changing it in 2005, are perhaps a recognition of Roscoe Pound immortal words, which appear in his famous “The Ideal Element in Law” contracts that “the law must be stable and yet it cannot stand still. Hence all thinking about the law has fought to reconcile the conflicting demands of the need for stability and the need of change.” – the Bench observed.

Therefore, the judgement is in the favor of the daughters and says that shares will devolve on them as well.

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Landmark Judgement by consumer court against property builder

Judgement against builder for delayed possession flat

Atul Kinra, husband of the complainant, entered into a contract for the purchase of a plot measuring 300 sq. yards with the Respondent and paid a substantial amount for it. However, later the Respondents have failed to transfer the said plot provisionally allotted another plot and Atul Kinra paid Rs. 38,77854 of Rs. 40,50,354 and the leftover amount was discounted for the reason of timely payment. The respondent in the plot buyers agreements (20.06.2007) promised to transfer the property by two years but not later than 3 years (19.06.2010). But even after 5 years, the husband of the complainant could not find much development has taken place.

Atul Kinra was later offered another plot which was accepted by him and the necessary changes were made in the Plot Buyers Agreement. The plot was allotted only on paper and no physical possession was transferred. The Respondent had also failed to take the permission from the requisite authorities. Atul Kinra also paid the requisite fee to transfer the re-allotted property to his wife. Neeraj Kinra on 07.08.15 . Neither was the Respondent ready to transfer the possession nor to Refund the original amount.

The complainant filed the present Complaint before the State Commission, U.T. Chandigarh asking for Refund along with interest and compensation.

compensation, in the sum of Rs.3,00,000/- for causing mental agony and harassment

The Respondent challenged the said complaint on the following grounds:

  • Complainant is not a Consumer as the plot was transferred to her by her husband and wan not an original party to the Contract.
  • Time is not the Essence of contract in the present case.
  • As the Respondents were ready to transfer the plot therefore if the refund is claimed the forfeiture clause would be applicable.
  • No jurisdiction of the Commission on the ground of existence of Arbitration Clause.

The Commission rejected the aforesaid pleas on the ground:

  • Complainant is the Consumer as the requisite fee was paid and title of the Complainant was accepted.
  • The Plot Buyers Agreement expressly provided the maximum period of 3 years which made time to be the essence for the expressly of the said deed.
  • As the possession was offered too late, therefore, the Complainant was not bound to accept it and was required to be paid the interest @15% for the reason that had it been invested in some other business, the Complainant could have earned the substantial amount of return. The Commission also ordered the payment of Compensation for the mental agony and harassment caused.
  • Existence of Arbitration Clause is no bar to filing the Complaint in the Consumer Forum.

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