Introduction
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The
object of this provision is to provide a summary remedy to the
dependent wife, children, and parents from destitution and to serve a
social purpose. The right under these provisions cannot be defeated by
anything in the personal law of the parties.
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Who is Entitled to Maintenance
|
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Relief available
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Where a person having sufficient means refuses or neglects to maintain the persons eligible as above:
A Magistrate of the First Class may, upon proof order such person
to pay a monthly allowance at the rate not exceeding RS. 500 on the
whole.
In case of a minor female married child the Magistrate may order
the father to pay such maintenance, until she attains the age of
majority, if the Magistrate is satisfied that the husband of such minor
female child is not possessed with sufficient means.
"Minor" means a person who has not completed the age of 18 years.
"Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
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Where to file the application
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The application for maintenance may be filed in the district where
LIMITATION
There is no period of limitation prescribed for making an application for maintenance. |
Exception
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No wife shall be entitled to receive an allowance from her husband if:
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How to file maintenance filed by wife before the Magistrate Court - Section 125 Of The Code Of Criminal Procedure
Status Of Live In Relationships In India
INTRODUCTION
|
In
India marriage has always been considered a sacrament. The husband and
wife are considered as one in the eyes of law. The legal consequences of
marriage that follow add to the sanctity of this relationship. Marriage
legally entitles both the persons to cohabit; the children born out of a
legal wedlock are the legitimate children of the couple; the wife is
entitled to maintenance during the subsistence of marriage and even
after the dissolution of marriage and many more.
The benefits of marriage come with a lot of responsibilities. The marital obligations towards the spouse, towards the family, towards the children and towards the marital house are an inseparable part of the Indian marriage. To avoid the obligations of a traditional marriage and on the other hand to enjoy the benefit of cohabiting together, the concept of live in relation has come into picture. Live in relationships provide for a life free from responsibility and commitment which is an essential element of marriage. The concept of live in relationships is not new to the Indian society, the only difference is that earlier people were hesitant in declaring their status may be due to the fear of the society but now the people are openly in this kind of relationship. |
WHAT IS LIVE IN RELATIONSHIP
|
A
living arrangement in which an unmarried couple lives together under the
same roof in a long term relationship that resembles a marriage is
known as a live- in-relationship. Thus, it is the type of arrangement in
which a man and woman live together without getting married. This form
of relationship has become an alternate to marriage in metropolitan
cities in which individual freedom is the top priority amongst the youth
and nobody wants to get entangled into the typical responsibilities of a
married life.
This form of living together is not recognized by Hindu Marriage Act, 1955 or any other statutory law. Wile the institution of marriage promotes adjustment; the foundation of live in relationships is individual freedom. Though the common man is still hesitant in accepting this kind of relationship, the Protection of Women from Domestic Violence Act 2005 provides for the protection and maintenance thereby granting the right of alimony to an aggrieved live-in partner. |
LEGAL STATUS OF LIVE IN RELATIONSHIP
|
The
definition of live in relationships is not clear and so is the status of
the couples in a live in relationship. There is no specific law on the
subject of live in relationships in India. There is no legislation to
define the rights and obligations of the parties to a live in
relationships, the status of children born to such couples. In the
absence of any law to define the status of live in relationships, the
Courts have come forward to give clarity to the concept of live in
relationships. The Courts have taken the view that where a man and a
woman live together as husband and wife for a long term, the law will
presume that they were legally married unless proved contrary.
The first case in which the Supreme Court of India first recognized the live in relationship as a valid marriage was that of Badri Prasad vs. Dy. Director of Consolidation, in which the Court gave legal validity to the a 50 year live in relationship of a couple. The Allahabad High Curt again recognized the concept of live in relationship in the case of Payal Katara vs. Superintendent, Nari Niketan and others, wherein it held that live in relationship is not illegal. The Court said that a man and a woman can live together as per their wish even without getting married. It further said that it may be immoral for the society but is not illegal. Again in the case of Patel and Others., the Supreme Court has held that live in relationship between two adults without marriage cannot be construed as an offence. It further held that there is no law which postulates that live in relationships are illegal. The concept of live in relationship was again recognized in the case of Tulsa v. Durghatiya. In the case of S. Khushboo vs. Kanniammal & Anr., the Supreme Court held that living together is a right to life. Live in relationship may be immoral in the eyes of the conservative Indian society but it is not “illegal†in the eyes of law. In this case, all the charges against Kushboo, the south Indian actress who endorsed pre- marital sex and live in relationship were dropped. The Court held that how can it be illegal if two adults live together, in their words “living together cannot be illegal.†However in one of its judgment Alok Kumar vs. State, the Delhi High Court has held that live in relation is walk in and walk out relationship and no strings are attached to it. This kind of relationship does not create any legal bond between the partners. It further held that in case of live in relationships, the partners cannot complain of infidelity or immorality. Again giving recognition to live in relationships, the Supreme Court in the case of D. Velusamy v. D. Patchaiammal has held that, a ‘relationship in the nature of marriage’ under the 2005 Act must also fulfill some basic criteria. Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’. It also held that if a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage’. The court made it clear that if the man has a live-in arrangement with a woman only for sexual reasons, neither partner can claim benefits of a legal marriage. In order to be eligible for ‘palimony’, a relationship must comply with certain conditions, the apex court said. The following conditions were laid down by the apex Court:
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RIGHTS OF A FEMALE IN LIVE IN RELATIONSHIP
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In
June, 2008, it was recommended by the National Commission for Women to
the Ministry of Women and Child Development to include live in female
partners for the right of maintenance under Section 125 of Criminal
Procedure Code, 1973. The view was also supported by the judgment in
Abhijit Bhikaseth Auti v. State Of Maharashtra and Others. In October,
2008, the Maharashtra Government also supported the concept of live in
relationships by accepting the proposal made by Malimath Committee and
Law Commission of India which suggested that if a woman has been in a
live-in relationship for considerably long time, she ought to enjoy the
legal status as given to wife. However, recently it was observed that it
is divorced wife who is treated as a wife in context of Section 125 of
CrPC and if a person has not even been married i.e. the case of live in
partners, they cannot be divorced, and hence cannot claim maintenance
under Section 125 of CrPC.
The partner of a live in relationship was first time accorded protection by the Protection of Women from Domestic Violence Act, 2005, which considers females who are not formally married, but are living with a male person in a relationship, which is in the nature of marriage, also akin to wife, though not equivalent to wife. Section 2(f) of the Act defines domestic relationship which means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Thus, the definition of domestic relationship includes not only the relationship of marriage but also a relationship `in the nature of marriage’. In a case in Delhi, the Delhi High Court awarded Rs. 3000/- per month as maintenance to a maid who was in a live in relationship with her widower employer. In Varsha Kapoor vs UOI & Ors., the Delhi High Court has held that female living in a relationship in the nature of marriage has right to file complaint not only against husband or male partner, but also against his relatives. In the case of Koppisetti Subbharao Subramaniam vs. State of Andhra Pradesh, the defendant used to harass his live in partner for dowry. In this case the Supreme Court held that the nomenclature ‘dowry’ does not have any magical charm written over it. It is just a label given to demand of money in relation to a marital relationship. The Court rejected the contention of the defendant that since he was not married to the complainant, Section 498A did not apply to him. Thus, the Supreme Court took one more step ahead and protected the woman in a live in relationship from harassment for dowry. |
STATUS OF CHILDREN OF COUPLES IN LIVE IN RELATIONSHIP
|
Since
there is no specific law that recognizes the status of the couples in
live in relationship, hence the law as to the status of children born to
couples in live in relationship is also not very clear.
The Hindu marriage Act, 1955 gives grants the status of legitimacy to every child irrespective of his birth out of a void, voidable or a legal marriage. But there is no specific law that raises any presumption of legitimacy in favour of children of live in partners. The future of children of live in partners becomes very insecure in case the partners step out of their relationship. There comes the requirement of a strong provision to safeguard the rights of such children. The must be provision to secure the future of the child and also entitling the children to a share in the property of both the parents. Again in the absence of a specific legislation, the Supreme Court of India took the initiative to safeguard the interest of children of live in couples. In the case of Bharata Matha & Ors. vs. R. Vijaya Renganathan & Ors., the Supreme Court of India has held that child born out of a live-in relationship may be allowed to succeed inheritance in the property of the parents, if any, but doesn't have any claim as against Hindu ancestral coparcenary property. |
CONCLUSION
|
Live-in relationships in India have still not received the consent of
the majority of people. They are still considered a taboo to the Indian
society. The majority of the people consider it as an immoral and an
improper relationship. At present there is no specific legislation that
deals with concept of live in relationship and the rights of the parties
and the children of the live in partners. It was a very unambiguous
concept until the Supreme Court of India took the initiative and
declared that live in relationship though considered immoral but it is
not illegal. Through its various decisions the judiciary has tried to accord legality to the concept and protect the rights of the parties and the children of live in couples. But at present there is a need to formulate a law that would clarify the concept. There should be clear provisions with regard to the time span required to give status to the relationship, registration and rights of parties and children born out of it. The utmost need of the hour is to secure the future of the children born to live in couples. The steps taken by the judiciary are indeed welcoming and pragmatic in approach. Though the live in relations provide the individuals individual freedom but due to the insecurity it carries it with, there needs to be a law to curtail its disadvantages. |
How the property divided among legal heirs when an HIndu Male/Female dies without writing will? - Hindu Succession Act 1956 -
Introduction |
Succession
in the Hindus is governed by the Hindu succession Act, 1956, which
bases its rule of succession on the basic principle of propinquity,
i.e., preference to heirs on the basis of proximity of relationship.
Earlier females were excluded, however this rule of exclusion of females
has been done away with.
The law of intestate succession is concerned with matters as to who
are the Heirs, what are the rules of preference among the various
relations, in what manner is the property distributed in case there is
more than one heir and so on.
INTESTATE SUCCESSION- A person who dies without
making a will is known as intestate. An heir is a person entitled to
inherit property after the death of the intestate
The Hindu Succession Act applies to the whole of India except the State of Jammu and Kashmir.
The Act applies to all Hindus, Buddhists, Jainas, Sikhs and to any other person who is not a Muslim Christian, Parsi or Jew.
SPECIAL MARRIAGE ACT
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Joint Family Property
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Under the Mitakshara School, the joint family property devolves by survivorship.
When a male Hindu dies after the commencement of this Act having at
the time of his death an interest in a Mitakshara coparcenery property,
his interest in the property shall devolve by survivorship upon the
surviving members of the coparcenery and not in accordance with this
Act.
However if the Mitakshara dies leaving behind a female relative or
male relative claiming through Class I, this undivided interest will not
devolve by survivorship but by succession as provided under the Act.
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General rules of succession-Male
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The property of the male Hindu dying intestate shall devolve in the following manner
CLASS Ist HEIRS
CLASS IInd HEIRS
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General Rules of Succession-Female
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The property of a female Hindu dying intestate shall devolve:
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The Maintenance And Welfare Of Parents And Senior Citizens
Introduction
|
Maintenance
of Parents and Senior citizen is the responsibility of very person. In
India the uncared senior citizens including parents who are unable to
maintain themselves from their own resources or are abandoned by their
children, can get the relief under an Act known as The Maintenance and
Welfare of Parents and Senior Citizens Act. Under this Act, children and
property heirs must take care of the maintenance of their
parents/senior citizens. The purpose of enacting this Act was to fulfill
the gaps in Section 125 of the Code of Criminal Procedure, 1973.
The Code of Criminal Procedure, 1973 has limited provision for maintenance of parents only and is silent on welfare measures. Whereas the Maintenance and Welfare of Parents and Senior citizen Act 2007, has provisions for maintenance and also look after the welfare of parents and senior citizens. It is a comprehensive Act. It has a broader scope and is not limited to the sphere of parent-child relationship only. The Act holds the State responsible for the implementation of welfare measures for senior citizen. By bringing out the Maintenance and Welfare of parents and citizens Act, the Government has taken a small step towards bringing a smile to the faces of the elders of our society. As a nation, it is every citizens duty to ensure that Senior Citizens live a happy, healthy and secure life. We should always keep in mind that who took care of us in their youth and helped us to grow, we owe them a better tomorrow. The act extends to the whole of India except the Sate of Jammu and Kashmir and it applies also to citizens of India outside India. |
PROVISIONS OF THE ACT:
|
Ø A
senior citizen includes parents who are unable to maintain themselves
through their own earnings or out of their own property, may apply for
maintenance from their adult children or any legal heir (who is in
possession of or is likely to inherit their property) of the childless
senior citizen. This maintenance includes the provision of proper food,
shelter, clothing and medical treatment.
Ø Parents include biological, adoptive and step mothers and fathers, whether senior citizens or not. JURISDICTION FOR FILING APPLICATION FOR MAINTENANCE The proceedings under the provision of the Act may be taken against any children or relative in any district:- a. where the senior citizen or parent resides or last resided; b. where children or relative resides. |
DEPOSIT OF THE MAINTENANCE AMOUNT
|
o
When a maintenance order is made under this Act, the children or
relative who is required to pay must deposit the entire amount in such
manner as the Tribunal, within thirty days of the date of announcing the
order by the Tribunal.
o Where any Tribunal makes an order for maintenance under this Act, such Tribunal may also direct that in addition to the amount of maintenance, simple interest to be paid at such rate and from such date not earlier than the date of making the application, which can not be less than five per cent, and not more than eighteen per cent. APPEALS Ø Any senior citizen or a parent, who gets aggrieved by the order of the Tribunal can prefer an appeal at the Appellate Tribunal within sixty days from the date of the order. Ø The Appellate Tribunal after examining the appeal and the records called for may either allow or reject the appeal. Ø The Appellate Tribunal adjudicate and decide upon the appeal filed against the order of the Tribunal and the order of the Appellate Tribunal is the final. No appeal shall be rejected unless an opportunity has been given to both the parties of being heard in person or through a duly authorised representative. |
REVOCATION OF WILL
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As
per the provision of the Act, a senior citizen can seek to revoke any
property, which has been transferred in favour of children/relative on
the condition that such children/relative would provide maintenance to
him but are not providing the same. The tribunals are empowered to
declare such transfers as void on the applications of such parent.
OFFENCES AND PROCEDURE FOR TRIAL Ø Exposure and abandonment of senior citizen : Erring persons are punishable with imprisonment up to three months or a fine of up to rupees five thousand or with both. Ø Cognizance of offences : (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974) every offence under this Act shall be cognizable and bailable. (2) An offence under this Act shall be tried summarily by a Magistrate. PROVISIONS FOR MEDICAL CARE OF SENIOR CITIZEN The Act provides that the State Government shall ensure : - · the Government hospitals or hospitals funded fully or partially by the Government shall provide beds for all senior citizens as far as possible; · separate queues be arranged for senior citizens; · facility for treatment of chronic, terminal and degenerative diseases is expanded for senior citizens; · research activities for chronic elderly diseases and ageing is expanded; · there are earmarked facilities for geriatric patients in every district hospital duly headed by a medical officer with experience in geriatric care. Ongoing transition in the families today as a result of changes in the cultural contours in the society has posed several challenges to the elderly care in the society. There is crisis in the institution of family, which carries special significance to the care of elderly people. The State Government is required to set up one or more tribunals in every sub-division. It sholud also set up Appellate Tribunals in every district to hear the appeals of Senior Citizens against the decision of the Tribunals. State Governments should set up at least one Old Age Home for every 150 beneficiaries in a district. These homes are to provide Senior Citizens with minimum facilities such as food, clothing and recreational activities. All Government hospitals or those funded by the Government must provide beds for Senior Citizens as far as possible. Also, special queues to access medical facilities should be arranged for them. source:helplinelaw.com |
Gifts Under Hindu Law
Gifts under Hindu Law
Gift
is a relinquishment without consideration of one's own right in property
and the creation of the right of another. A gift is completed only on
the other's acceptance of the gift.
WHAT PROPERTY MAY BE GIFTED
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A Hindu may dispose of by gift his separate or self acquired property, subject in certain cases to the claims for maintenance of those he is legally bound to maintain.
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A coparcerner, may dispose of his coparcernary interest by gift subject to the claims of those who are entitled to be maintained by him.
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A father may by gift dispose of the whole of his property, whether ancestral or self acquired, subject the claims of those he is entitled to be maintained by him.
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A female may dispose of her stridhana by gift or will, subject in certain cases to the consent of her husband.
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A widow may in certain cases by gift dispose of a small portion of the property inherited by her from her husband, but she cannot do so by will.
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The owner of an impartible estate may dispose of the estate by gift or will, unless there is a special custom prohibiting alienation or the tenure is of such a nature that it cannot be alienated.
A gift under Hindu law need not be in writing. However, a gift
under the law is not valid unless it is accompanied by delivery of
possession of the subject of the gift from the donor to the donee.
However where physical possession cannot be delivered, it is enough to
validate a gift, if the donor has done all that he could do to complete
the gift, so as to entitle the donee to obtain possession.
GIFTS BY HINDUS WHERE TRANSFER OF PROPERT ACT APPLIES.
A gift under the above act can only be effected in the following manner.
- For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
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For the purpose of making a gift of a movable property, the transfer may be effected by a registered document signed by the donor or by delivery.
GIFTS TO UNBORN PERSONS
Under pure Hindu law, a gift cannot be made in favour of a person
who was not in existence at the date of the gift. This rule has been
altered by 3 acts namely
The Hindu Transfers and Bequests Act 1914, Hindu Disposition of Property act 1916, and the Hindu Transfers and Bequests (City of Madras)Act 1921
The Hindu Transfers and Bequests Act 1914, Hindu Disposition of Property act 1916, and the Hindu Transfers and Bequests (City of Madras)Act 1921
RESERVATION OF LIFE INTEREST.
A gift of property is not invalid because the donor reserves the usufruct of the property to himself for life.
CONDITIONS RESTRAINING ALIENATION OR PARTITION
Where property is given subject to a condition absolutely
restraining the donee from alienating it, or it is given to two or more
persons subject to a condition restraining them from restraining it, the
condition is void, but the gift itself remains good.
REVOCATION OF GIFT
A gift once completed is binding on the donor, and it cannot be
revoked by him unless it is obtained by fraud or undue influence.
GIFT IN FRAUD OF CREDITORS
A gift made with the intent to defeat or defraud creditors is voidable at the option of the creditors.
Please consult with Property Lawyers in Chennai or attorneys in your jurisdiction to consultant more on the transfer of property through Gift.
source:helplinelaw.com
Right Of Hindu Women In Undivided Property
Introduction:
|
Every
citizen of India is guaranteed equality before law and equal protection
of the laws irrespective of his gender, caste, creed, and race. The
Constitution of India also contains provisions for empowerment of women.
The concept of equal social status to women also includes their right
to hold and inherit property like the male members of the family.
Despite the equality guaranteed by the law of the land, women in India
had suffered a lot of inequalities. Prior to the enactment of the Hindu
Women’s Right to Properties Act 1937, women were not entitled to a
share in the Joint Family Property and succession was governed by
survivor ship. As per the rule of survivor ship, on the death of a
member of joint and undivided family, his share in the joint family
property would pass on to the surviving coparceners, which was inclusive
of only the male members of the family.
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What is Coparcenary:
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The Hindu Succession Act, 1956 gave
women equal inheritance rights with men. But the daughters were not given a
birth right in the ancestral property under the Mitakshara coparcenary.
Coparcenary refers to equal inheritance which was restricted only to male
members of the Hindu Undivided Family. It is a narrower body of persons within
a joint family. Coparceners jointly inherit property and have unity of
possession.
Coparcenary is limited to three generations next to the holder. If a man has sons, grandsons and great-grandsons living, all of these constitute a single coparcenary with him. The share of coparceners in the joint coparcenary property was fluctuating which diminished and enlarged with the birth and death of a coparcener in the family. No female was a member of the coparcenary in Mitakshara law before the Hindu Succession (Amendment) Act, 2005. If the family owned a dwelling house, then the daughter's right was confined only to the right of residence and not possession or ownership. The daughter has been made a coparcener by birth in the joint property after coming into force of the Hindu Succession (Amendment) Act, 2005. |
Right of Women Under Hindu Succession Act, 1956:
|
The Hindu
Succession Act, 1956 dealt with law relating to intestate succession
among Hindus. The properties of a Hindu male dying intestate devolves,
in the first instance, equally on his sons, daughters, widow and mother
and include the specified heirs of predeceased sons or daughters.
Section 6 of the Act deals with devolution of interest in the
coparcenary property. According to the Section 6 of the Act prior to the
passing of the Amendment Act of 2005, the interest of a coparcener who
died intestate shall devolve on others coparceners by rule of
survivorship. According to the unamended Section 6, if the deceased died
leaving behind a surviving female relative specified in Class I of
Schedule I, or a male relative specified in that Class who claims
through such female relative, or a male claiming through such female,
the interest of the deceased in the Mitakshara coparcenary property
shall devolve by testamentary or interstate succession under this Act
and not by survivorship. Thus, in Mitakshara coparcenary females could
not inherit ancestral property. Thus, the provision contained in the
unamended Section 6 of the Act, by excluding the daughters from
participating in coparcenary ownership not only contributed to an
inequity against females but had also led to oppression and negation of
their right to equality.
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The State Amendments:
|
The Hindu Succession Act containing the discriminatory provision was followed for about 49 years. But there were five states in India namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka who took the initiative to treat women equally both in the economic and the social spheres. States of Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka had inserted provisions wherein the daughter has been made a coparcener by birth in the joint family property in her own right in the same manner as the son. The state of Kerala, in addition to making the daughter as a coparcener has also abolished the right to claim any interest in any property of an ancestor during his or her lifetime founded on the mere fact that he or she was born in the family. It has abolished the Joint Hindu family system. |
The Hindu Succession (Amendment) Act, 2005:
|
The Hindu
Succession (Amendment) Act, 2005 was passed to remove gender
discriminatory provisions in the Hindu Succession Act, 1956 and to give
equal rights to daughters in Hindu Mitakshara coparcenary property as
the sons have. The Act aimed at making two major amendments in the Hindu
Succession Act, 1956. Firstly it amended the provision which excluded
the right of the daughters form the coparcenary property and secondly it
omitted Section 23 of Act which dis entitled a female heir to ask for
partition in respect of a dwelling house, wholly occupied by a joint
family, until the male heirs choose to divide their respective shares
therein.
The main provisions of the Hindu Succession (Amendment) Act, 2005 are:
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Effect of the Amendment Act on the Position of the Women:
|
The
significant change that was brought by the Amendment Act was to make
daughters coparceners in joint family property. After the amendment, the
daughter of a coparcener shall by birth become a coparcener in her own
right in the same manner as the son and she would have the same rights
in the coparcenary property as she would have had if she had been a son.
With the rights that she acquire in the joint family property she also
is subjected to the same liabilities in respect of the said coparcenary
property as that of a son and any reference to a Hindu Mithakshara
coparcener shall be deemed to include a reference to a daughter of a
coparcener.
According to this amendment if the daughter dies intestate; her interest in coparcenary would devolve by succession in accordance with section 15 of the Hindu Succession Act, 1956. If the daughter is left alone by deceased male coparcener, she shall inherit his entire property of which she would become absolute owner and after her death, if she dies intestate shall devolve upon her heirs as per section 15. The daughter now has the right to dispose of her interest in coparcenary by making a will and if she is a lone heir she shall become absolute owner of the property and shall also have a right to alienate it during her life time. This amendment also created a right to have a share in the joint property during the partition favour of children of the daughter and her pre-deceased daughter, in case of their death, that is to say a son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a predeceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son, are also now included in Schedule to Hindu Succession Act, 1956 as Class I heirs. The said heirs, not being coparceners, would not have right to demand partition. Any disposition, alienation, partition or testamentary disposition of property made before 20th December, 2004 shall not be invalidated by reason of the amendment of Section 6. However, the right of the mother or deceased’s widow in the joint family property has remained unchanged. They would be entitled to an equal share with other Class I heirs only from the separate share of the father and her husband respectively computed at the time of the notional partition. With the amendment Section 6, the actual share of the mother will go down with daughters also becoming coparceners in the joint family property. According to the amended Section 6 of the Hindu Succession (Amendment) Act, 2005 if a Hindu dies after the commencement of the Amendment Act, his interest in the property of the joint Hindu family governed by the Mithakshara Law shall devolve by testamentary or intestate succession and not by survivorship and the coparcenary property shall be deemed to have been divided as if a partition had taken place. |
Conclusion:
|
The basic
object of the amendment to the Section 6 of the Hindu Succession Act was
to achieve equal inheritance for all. Daughter of a coparcener in a
Hindu joint family governed by Mitakshara Law now is coparcener by birth
in her own right in the same manner as a son; she has right of claim by
survivorship and has same liabilities and disabilities as a son; now
coparcenary property to be divided and allotted in equal share. But
these laws cannot be successful unless and until there is social
awareness amongst the women about their rights. Women themselves
relinquish their rights and tend to suffer deprivation. The change which
took about 49 years to bring daughters at par with the sons with
respect to their right in their ancestral property cannot be lost sight
of just because of ignorance of people. The judiciary should also make
efforts to implement the law so as to achieve the objective behind the
amendment of the law. Above all it’s the woman herself who has to be
aware of and assert her rights. To get the complete property legal opinion of a lawyer in Chennai or your Jurisdiction, please contact the experienced property lawyers for partition of property.
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Enforcement Of A Will
ENFORCEMENT OF A WILL
Will is in general the legal declaration of the intention of the testator with respect to his properties which he so desires to carry into effect after his death. This definition of the Will is under the Indian Succession Act. Since it is a document which takes effect only after the demise of the testator, it can be revoked and redrafted any number of time during his lifetime, the last Will left behind by the testator is to be considered as his legal declaration. It should have revoked all other Wills and codicils made before that date of the last Will.
The Will so made, may not necessarily be registered as is the general perception, even a Will made on a plain paper witnessed by witnesses is a valid Will till it is established otherwise.
The Testator may appoint an Executor to give effect to his Will. In cases where no Executor has been appointed by the Testator, or the Executor so appointed is legally incapable or refuses or dies before the Testator or before he has proved the Will, or before he has administered all the Estate of the deceased, the Court may appoint an administrator by granting Letters of Administration which may be granted to the universal or residuary Legatee in respect of the deceased’s estate.
Under Section 213 of the Indian Succession Act, states that no right as executor or legatee can be established in any Court of Justice unless a Court of competent jurisdiction, in India has granted probate of the Will under which the right is claimed or has granted Letters of Administration with the Will or with a copy of an authenticated copy of the Will annexed.
Probate can be granted only to the executor appointed by the Will as per Section 222 of the Indian Succession Act. A probate establishes the title of the beneficiary in the property received by him under the Will. Thus an executor or legatee cannot establish his right under the Will in a Court of law without obtaining the Probate or Letters of Administration. This however applies to people covered under Section 57 (a) and (b).
In order to obtain probate one has to make an application stating details about the deceased before the Court of competent jurisdiction with a copy of the Will. The Court shall summon the kith, kin and heirs of the deceased by way of notices and seek their say in the matter of the Will. If there are objections to the genuineness of the Will, such heirs can file their objections which shall be tried before the Court and only upon being satisfied that it is a valid Will and that the same was made by the Testator while he was in a sound state of mind, shall the Court grant probate or Letters of Administration as the case may be. Any other objection with regard to the rights of the Testator to dispose the properties under the Will cannot be challenged in an application for probate or letters of administration. The Court shall proceed on the assumption that the title vested in the Testator.
Source: helplinelaw.com
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