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venkitasubramanian m d (advocate)     09 March 2010

HINDU SUCCESSION ACT 14 (2)

   A VERY CHALLENGING QUESTION  ON THE APPLICABILITY OF SEC. 14 (2) of the Hindu succession Act. 

 Facts of the case; 

A  HAS PROPERTIES.  HIS WIFE W HAS ALSO PROPERTIES. SHE HAS GOT IT FROM HIS MATRIARCHAL TARAWAD FAIMLY LIKE IN  MALABAR 

A DIES.  W , D1 AND D2 THEIR TWO DAUGHTERS AND S1 HIS SON  DIVIDE THE PROPERTIES BY A REGD PARTITON, BRINGING IN ALL THOSE PROPERTIES. 

A SCH WITH SIX ITEMS OF INCOME GIVING LANDED PROPERTIES IS GIVEN TO W, THE WIDOW/MOTHER.  BUT IT IS CLEARLY MENTIONED THAT THOIUGH ITEMS 6 AND 7 ARE INTENDED FOR THE SHARE OF THE TWO DAUGHTERS  IT IS ALLOWED TO BE USED BY  THE MOTHER FOR MAINTENANCE DURING HER LIFE TIME. BUT THE MOTHER SHALL HAVE NO POWER OF ALIEANATION AND IT IS A RESTRICTED ESTATE, AND ITEM 6 SHALL DEVOLVE ON D1 HER DAUGHTER AND ITEM NO. 7 ON D2 HE R OTHER DAUGHTER. 

THE QUESTION IS THAT IN VIEW OF THE PROVISION FOR A RESTICTED ESTATE, WHETHER, SEC. 14(1)ENALRGEMENT INTO ABSOLUTE ESTATE WILL APPLY AND WOULD IT NOT COME UNDER sEC. 14(2) 

THE POINT BECOMES INTERESTING IN THAT THE MOTHER IS GIVEN SEPARATE FIVE ITEMS OF PROPERTIES TO BE ABSOLUTELY ENJOYED AND THEN IT CANNOT BE SAID THAT THE GENOURISITY OF THE DAUGHTERS TO FURTHER MORE ALLOW MOTHER TO USE THE PROPERTY AND TAKE INCOME DURING HER LIFE TIME WOULD NOT BE IN LIEU OF A PREEXISTING RIGHT OF MAINTENANCE, PARTICULARLY WHEN SHE IS A LEGAL HEIR, ALLOTTED PROPERTIES TO HER SELF AND HER RIGHT TO  PROPERTY IS ALREADY CONCEDED AND SUCH A PERSON CANNOT HAVE A PREEXISTING RIGHT.

 

THE CATCH ALL INTREPRETATION IN JUDICIAL OVER ACTIVISM, IN THULASAMMAL CASE CAN IT NOT BE DISTINQUISHED, SINCE THE OBJECT IS TO ENLARGE ESTATE OF A WOMAN AND IN THIS CASE, IT IS THE NEXT GENERATION WOMEN WHO IS AFFECTED.    AND MORE OVER, IN INDIAN CONDITIONS, THE MOTHER IS UNDER THE CLUTCHES OF THE SON AND THE SON WILL KNOCK IT OFF AS HE WOULD PURSUADE EVEN AN UNWILLING MOTHER TO MAKE A WILL IN HIS FAVOUR.  

 

PLEASE COMMENT.  IT IS A QUESTION OF SAVING TWO WOMEN IN THE NEXT GENERATION


 

 A 



 11 Replies

Mani Narayanaswamy (Lawyer)     09 March 2010

Please read 2010-1-law weekly-673.

Ethirajulu (died) & 5 others.. Appellants

-Vs-

Chockalingam & 6 others

S.A.No. 508 of 1997 by His Lordship Mr.Justice.M.Jayapaul. Madras High Court

venkitasubramanian m d (advocate)     10 March 2010

Thank you Sir, I am really thankful to your prompt reply and  I find it very interestting and joininng this forum and having responsive personalities like you, a real breakthrough.    

I have put in 45 years of civil practice and  i enjoy doing  the work and few of my juniors have become judges. 

This particular ruling I do not get because, I do not get 2010 1 law weeklly  and so can you kindly send me any equivalent citation in AIR OR MADRAS LAW JOURNAL.

THIS QUESTION IS VERY INTERESTING BECAUSE, AN UNSUSPECTING DAUGHTER, WHOSE SHARE IT WAS PROVIDED FOR MAINTENANCE, WAS PERSUADED BY MOTHER, WHILE IN GOOD TERMS TO PUT UP A HOUSE THEREIN COSTING QUITE A LOT, UNDER AN AGREEMENT, NOTARISED, WHEREIN THE MOTHER REITERATES HER RESTRICTED INTEREST AND ALLOWS HIM TO PUT UP .. NOW AFTER DECADES, FRICTION IS CREATED BY THE ONLY SON AND HE HAS MADE HIS MOTHER SUE  

 

KINDLY ENLIGHTEN IF YOU HAVE ANY MORE INFORMATION.. 

LIKE WISE, I WILL BE GLAD TO PUT IN MY CONTRIBUTION TO ANY VEXED CIVIL PROBLEM WHICH IS AT ONCE A JOY AND IMPROVES OUR POWER OF KNOWLEDGE

 

VENKITASUBRAMANIAN ADV. 

Mani Narayanaswamy (Lawyer)     11 March 2010

Mr.Venkitasubramaniam,

You can log on to www.hcmadras.tn.nic.in and select judgments.  In that you can select Justice M.Jayapaul and enter the date column as 01.012.2009 to 30.01.2010. You will find this judgment.

girishankar (manager)     20 March 2010

hm

venkitasubramanian m d (advocate)     22 March 2010

Dear Sri balasubramanian

this forum is very useful   Many vexing problems can be dissected and dissection by a group throws up new ideas. thank you . I already got the judgment from cd.  where are you practising

venkitasubramanian ad

girishankar (manager)     22 March 2010

Mr Venkat pl brief it.....

girishankar (manager)     22 March 2010

Mr Venkita subramanian and whose Mr. Balasubramanian 

ak05 (nil)     27 March 2010

Hi, I have a query on the Hindu succession act.

A  has been living with his maternal Grandfather since his parents expired in 1993.

The court had appointed A’s maternal Grandfather as his legal guardian.

As of today, A is 24 years of age.

A’s maternal grandfather expired in 2009 leaving behind following heirs:

1) His Wife(A’s maternal Grandmother).

2) His son (A’s maternal uncle).He is married(in 1980s).

3) His first daughter(A’s maternal aunty).She is married(in 1980s).

4) His second daughter(A’s Mother). She expired in 1993.      

A’s maternal Grandfather has left behind following property

1) Movable assets : Savings and FD accounts.

2) Immovable assets : flats.

A’s maternal grandfather has not left any will(Intestate). So being the son of a pre-deceased daughter(A’s mother in this case), is A eligible for a share in the above said property of his maternal grand father as per the Hindu Succession Act. If yes, what role will he play I mean what would be his rights in this case.

i.e After the death of A's maternal grandfather who will come into picture as the legal heirs(from the list mentioned above) and how will be the property be divided among them. Will each of them have equal share?

  Please clarify, this is very urgent. Thanks in advance.

girishankar (manager)     27 March 2010

HINDU SUCCESSION (AMENDMENT) ACT 2005

THE HINDU SUCCESSION (AMENDMENT) ACT, 2005 NO. 39 OF 2005

[5th September, 2005.]

An Act further to amend the Hindu Succession Act, 1956. BE it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:-

1. Short title and commencement.-(1) This Act may be called the Hindu Succession (Amendment) Act, 2005.

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. Amendment of section 4.-In section 4 of the Hindu Succession Act, 1956 (30 of 1956) (hereinafter referred to as the principal Act), sub-section (2) shall be omitted.

3. Substitution of new section for section 6.-For section 6 of the principal Act, the following section shall be substituted, namely:-

'6. Devolution of interest in coparcenary property.-(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,- (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,- (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect- (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation.-For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation.- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.'.

4. Omission of section 23.-Section 23 of the principal Act shall be omitted.

5. Omission of section 24.-Section 24 of the principal Act shall be omitted.

6. Amendment of section 30.-In section 30 of the principal Act, for the words "disposed of by him", the words "disposed of by him or by her" shall be substituted.

7. Amendment of Schedule.-In the Schedule to the principal Act, under the sub-heading "Class 1", after the words "widow of a pre-deceased son of a pre-deceased son", the words "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 pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son" shall be added. ---- T. K. VISWANATHAN, Secy. to the Govt. of India. {}

ak05 (nil)     28 March 2010

Hi Girishankar,

The highlighted part in your post i.e

"Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004."

As per my understanding it  says that any partition which has taken place before 20th Dec, 2004 will not be affected. Nowhere it mentions regarding the girl child being married(before) or unmarried.

In the case which i've posted, A's maternal grandfather died in 2009 w/o will and A's mother died in 1993 so being the son of pre-deceased daughter, A is eligible for for a share in his grandfather's property.

Please correct me if my interpretation is wrong.

 

girishankar (manager)     28 March 2010

Dear ako5,

For the Querry of yours I think you hav to go for Hindu Succession Act 1956 {only for Hindu} my posting was a Amendment act of central Govt: by 2005 not  a state G.O its differs from each state......


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