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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Hindu Daughter After Converting To Islam Does Not Lose Inheritance Right

Hindu Daughter After Converting To Islam Does Not Lose Inheritance Right

(Nayanben Firozkhan Pathan v/s Patel Shantaben Bhikabhai)

In a recent judicial progressive interpretation on a major question:‘whether a Hindu daughter can inherit from her father after getting married to a Muslim and embracing Islam’ was answered on 29thSeptember, 2017 by Gujarat High Court while interpreting the case of NayanBen Firozkhan Pathan. It was referred to Justice Pardiwala who favoured the rights of a converted Hindu daughter into Islam by interpreting Section 2 of Hindu Succession Act in a wider form. Justice Pardiwala held that if the parents of the converted daughter are Hindu by religion and covered by Hindu succession act then the daughter will also come under the umbrella of this act. He suggested in the aforesaid judgment, “Perhaps the Legislature might have thought fit to treat the children of the Hindu as Hindus without foregoing the right of inheritance by virtue of conversion.

OVERVIEW OF THE CASE:

  • Bhikabhai Patel who belongs to Vadodara is the father of Nayanaben Firozkhan and two sons. Mr. Bhikabhai Patel passed away in 2004.
  • In the year 1990, she renounced Hindu religion and embraced Islam with her free will. Subsequently an year later, in 1991 she married a Muslim boy.
  • After the death of Mr. Patel in 2004, her two brothers got their names recorded in the record of entry 1502 as right by succession and excluded the name of their sister, Ms. Nayanben Firozkhan.
  • In the year 2007, Ms. Nayanben filed an affidavit dated 13th December 2007 and produced it before the authority concerned for the getting her name mutated in the revenue record along with her brothers which was questioned by her brothers before the deputy collector ,Vadodra in the form of appeal.
  • The Deputy collector dismissed the appeal in 2009 and they filed a revision petition to Collector . The collector gave the decision in favour of the brothers.
  • Nayanben, therefore, challenged the Collector’s order before the Gujarat High Court.

JUDGMENT:

Justice Pardiwala upheld the decision of the Deputy Collector by including the converted Hindu daughter into Islam under the purview of the Hindu Succession Act, 1956.

In the judgment, he has relied and supported it on the following grounds:

  • Caste Disabilities Removal Act, 1850, (CDRA): Section 1 of the Act prescribes that law or usage which inflicts forfeiture of, or affects, rights on change of religion or loss of caste wereearlier considered sufficient grounds for forfeiture of property and exclusion from inheritance as a right but this ceased to be the case after the enactment of the CDRA, 1850 sole reason being this act protects the person.
  • Judgment of Ramesh v. P. Rajini: This judgment was delivered in the year 200 by the division bench of Madras High Court which held that the conversion of a Hindu into another religion will not become a basis to disentitle the inheritance rights. The honourable judges invoked section 2 of the CDRA,1850.
  • Interpretation of section 26, the Hindu Succession Act: It states that if a Hindu has ceased to be a Hindu by conversion to another religion, children born to the convert after such conversion and their descendants shall be disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens. Justice Pardiwala interpreted it as non-impactful and ineffective for theconvert’s right to inherit property from her Hindu relatives. But a major interpretation was that the children who are born after the conversion of such convert would not be able to inherit the property.
  • Interpretation of section 28 of the Hindu Succession Act: It rules out disqualification from inheritance on any ground whatsoever except those expressly recognised by any provisions of the Act which are re-marriage marriage of certain widows,murderer who is excluded on the principle of justice and public policy and thirdly,the heirs of a convert. In this exception, the heirs of the convert are held to be exclusive of inheritance rights but not the convert.

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Can a divorce be filed outside India if marriage takes place in India?

When the decree is granted outside India

When it comes to matrimonial matters, the Indian Diaspora across the globe often gets fuddled up in conflict of Family laws. And especially when it comes to divorce, things are assumed to get all the more hay wired.

However little is it known that the position with respect to the matter pertinent is very much clear.

Indeed, the divorce petition can be filed as well as settled outside India even if the marriage has taken place in India.

As a general rule under Section 13 of the CPC, any foreign judgement is valid and conclusive in India if it does not falls under certain exceptions.

The Apex Court of India lay down and clarified the law for foreign matrimonial judgements in the country in the case of Y. Narsimha Rao and ors. vs. Y. Venkata Laxmi and anr.

Brief Facts of the case

  • Y. Narsimha Rao and Y. Venkata Laxmi were married in Tirupati, India as per Hindu Customs in 1975.
  • They separated in July 1978 and Mr. Rao filed a petition for dissolution of marriage in the Circuit Court of St. Louis County Missouri, USA.
  • The Circuit Court passed the decree for dissolution of marriage on February 19, 1980
  • On 2 November 1981 Mr. Rao married another woman.
  • Mrs. Laxmi filed a criminal complaint against Mr. Rao for the offence of bigamy.

Judgement under Section 13 of the CPC

Judgement

Although the Court did not recognize the decree passed by the US court but it did lay down the clear law with respect to divorce decree in such matters. The Court carved out the exceptions as to in which conditions the divorce decree would NOT be recognized in India.

Such exceptions are as follows:-

  • When the decree is granted by court which is not authorized by Indian courts to grant the same
  • When one side is not heard or his/her submission is not taken on record
  • When the divorce is granted on the ground which is not recognized under Indian matrimonial laws
  • When the proceedings are against principles of natural justice
  • When the decree is obtained by fraud

Thus if the divorce matter does not falls within the ambit of any of the exceptions mentioned here in above then it can be proceeded unhindered in any foreign court even if the marriage takes place in India.

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Nomination is not the WILL

Nomination is not the WILL

If you die intestate (without leaving a WILL document), The Natural law of succession will prevail

The Court in present case once again had to decide between Morality and Law and settled that law prevails. The matter before the court was in relation to Relinquishment of Succession Right when Heirs have separated themselves from Deceased for a long time. The Court had to decide whether Absence of the Will still attracts Hindu Succession Act when Heirs had distanced themselves from the life of Deceased for more than 35 years. The situation became more complicated since deceased considered someone else as her nominee.

In the above-mentioned case, the facts are as follows:

  • A woman was living separately from her Husband and Daughter from past 35 Years and died Intestate.
  • From 35 years, the deceased was living with her sister.
  • Deceased was a Central Government Employee and has selected her sister as her nominee.
  • A succession Certificate issued in favor of Husband and Daughter of Deceased.
  • Sister of Deceased appealed against the above order on the ground that Nomination marked her as the owner.
  • Court relying on settled position of Nomination not amounting to Will stated that in absence of Will irrespective of relationship between deceased and heirs, the property still delves into legal heirs as per Hindu Succession Act in case of Intestate Deaths.

The court in this matter settled the following points

  • Nomination does not itself amounts to a Will or marks nominee as an owner.
  • Irrespective of the relation between Parties, provisions of Hindu Succession Act prevails in absence of Will.

Conclusion

The court in its opinion stated that the prevalence of law since distance does not amounts to Breakage of relationship and can even be there because of various other reasons as Employment. Moreover Nomination in Official Records sometime is done as a token of affection and love rather than with the purpose of making someone as a legal heir.

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Evicting a tenant on the basis of personal necessity

Judgement against the tenant

Landlord can now seek eviction  on the ground of bona fide requirement of tenanted premises for the purposes of  business requirement of the son, daughter or any other member of the family dependant on him or her.

The High Court has held in the case of  Bhupinder Singh Bawa v. Asha Devi  that there is no law which suggests that if a landlord requires the premises for running business of his/her young son who is an MBA graduate and is already engaged in some other business, he is acting  malafidely and thus, no relief should be granted to him/her. The High court had also rejected the argument that the since the son is already a director in the family company, there is no bona fide need of the tenanted premises.

Court Said

With regard to plea that the landlord has alternative premises, the High Court had observed: “It is not law that a petition for bona fide necessity does not lie because the husband of the landlady, who is carrying on a business on a premises must stop that business for or a son who wants to open a new business, more so when the tenanted premises are more suitable being on the main road and in a valuable market.”

Thus it is perfectly open to the landlord to choose a more suitable premises for carrying on the business by her son and that the respondent cannot be dictated by the appellant as to from which shop her son should start the business from.

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