Parents, children and the law: India
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From the archives of The Times of India 2010
Nominee, not heir, to get shares after holder’s death: HC Shibu Thomas | TNN
Mumbai: A nominee has the right to the shares after the original shareholder’s death and not the deceased’s heirs, Bombay High Court has ruled.
Dismissing the application of a widow who sought permission to sell the shares belonging to her late husband, Justice Roshan Dalvi held that she had no right to do so since she was not the nominee. The nominee was her late husband’s nephew.
‘‘The Companies Act sets out that the nomination has to be made during the lifetime of the holder, according to legal procedures. If that procedure is followed, the nominee would become entitled to all the rights in the shares to the exclusion of all other persons (following the death of the shareholder),’’ said the judge.
The court said that Harsha Kokate would have no rights over the shares owned by her deceased husband Nitin Kokate. Harsha had married Nitin in December 2004. Their marital life was short-lived as Nitin passed away in 2007. A year later Harsha moved the HC seeking to sell the shares in Nitin’s demat account with Saraswat Cooperative Bank. It was found that a year before his death Nitin had nominated his nephew in respect of the shares.
Harsha’s lawyers argued that she was entitled to the shares as she was her late husband’s heir and legal representative. The lawyers also pointed out to the nomination provisions relating to insurance papers as well as shares of a flat in a cooperative housing society. Under the provisions of the Insurance Act as well as the Maharashtra Cooperative Societies Act, nomination only makes a nominee a trustee for the insurances policy or shares of the flat, argued the lawyer. The nominee holds the policy/shares in trust for the estate of the deceased, but has no right over them.
‘‘Since Nitin died intestate (without leaving a will), his widow would be entitled to the shares to the exclusion of the nominee,’’ claimed Harsha’s advocate.
The HC disagreed. ‘‘The provisions (relating to insurance and housing societies) are made merely to give a valid discharge to the insurance company or the cooperative society without vesting the ownership rights in the insurance policy or the membership rights in the Society upon such nominee,’’ said the judge, while pointing out that the provisions of the Companies Act and Depositories Act, that govern equity shares are different. Both these laws say that the shares would be vested with the nominee on the death of the share holder. ‘‘Upon such nomination, therefore, all the rights incidental to ownership would follow. This would include the right to transfer the shares, pledge the shares or hold the shares,’’ said the judge.
Inheritance of Hindus’ property: India
Wife has better claim than mistress
The Times of India, Oct 07 2015
Abhinav Garg
Wife has first right to man's property: HC
A woman doesn't have a claim to her partner's home over that of his wife, the Delhi high court has said in an important ruling on rights in a live-in relationship.
Justice Najmi Waziri came to the rescue of a 78-year-old widow, a US citizen, by restoring to her possession of a Greater Kailash property owned by her husband. The senior citizen, who now lives in the US, married an Indian businessman in 1963 and was forced to move court when she was ousted from her matrimonial home following her husband's death last year.
“A live-in or mistress or survivor in a bigamous relationship does not enjoy the status of marriage, hence she does not get the protection of law for maintenance,“ Justice Waziri said referring to Supreme Court rulings. The court made it clear that the US citizen, being the legally wedded wife of the businessman, had a better claim to his property over that of the live in partner.
Dealing with the other woman's claim to the house, HC noted, “Her live-in status, assuming to be true, would not confer upon her any better right in law to dislodge the wife's lawful right to the matrimonial home. During the subsistence of a marriage, while there may be silent tolerance of a live-in relationship by the wife, the live-in status doesn't have the approval of law to oust the rightful and legal status of the wife in the matrimony . The live-in would be, at best, an unwanted guest in the wife's matrimonial home.“
Hindu Succession Act
The Times of India, Jun 16 2015
Manoj Mitta
Property: Daughter has share but father has will
Despite a historic amendment in 2005, the Hindu inheritance law still suffers from gender bias
It is 10 years since the daughter has been brought on a par with the son under the Hindu Succession Act, 1956 (HSA). This historic amendment of 2005 never made much of a splash though, unlike other farreaching enactments of the same year such as RTI, NREGA and even the domestic violence law.The lack of buzz about giving the daughter as much share as the son in the joint family property may seem ironic considering that this very proposal was one of the main reasons why the consolidated Hindu Code Bill championed by India's first law minister B R Ambedkar had been scuttled in the nascent republic to appease conservative forces. Does this mean that the notoriously patriarchal Hindu society has since become more accommodating of gender equality? Not necessarily , for there is little data available on the extent to which the amended Section 6 of the HSA conferring the same rights and liabilities on the daughter and the son in the ancestral property has been implemented across the country .Unlike in the case of RTI and NREGA, there has been no noticeable attempt on the part of the government to spread awareness about the change in property rights. Nor have civil society groups been anywhere as vigilant in monitoring the enforcement of HSA 2005 as they have been about the accrual of benefits from the more high-profile laws of that year.
Rights vs relations
Anecdotal evidence suggests that the import of the 2005 amendment is yet to sink in among the intended beneficiaries. Whether the women concerned are still ignorant about their new succession rights or have chosen to ignore them, Hindu ancestral properties have largely remained the preserve of their male counterparts.As a study conducted by a feminist group, Partners for Law in Development, put it, “The de facto situation continues to be one where women forfeit these rights to avoid strained family ties.“ What is particularly difficult for the daughter is to invoke her entitlement, under the 2005 amendment, to claim par tition of an ancestral home even when male heirs from her family are residing there.
Apart from the lag in the implementation of the 2005 amendment, the Hindu inheritance law is in need of further changes for it to be rid of the remnants of gender discrimination.
Heirs of a woman
One such remnant flagged by the Law Commission in 2008 relates to the implications of a Hindu woman dying without leaving behind a will. If she dies as a childless widow, the husband's heirs alone inherit her estate. But then, since she is entitled post-2005 to inherit property from her parents' side as well as her husband's side, would it not be logical to give equal rights of succession to her heirs from both sides? The Law Commission suggested that Section 15 of the HSA 1956 be amended so that “in case a female Hindu dies intestate leaving her self-acquired property with no heirs, the property should devolve on her husband's heirs and also on the heirs of her parental side“. This would surely be an apt sequel to the 2005 amendment, which too had been effected at the instance of the Law Commission.
Another retrograde provision waiting to be discarded is a gratuitous concession made to the Hindu right in 1954 while enacting a secular law for solemnising nondenominational “civil marriage“.Section 19 of the Special Marriage Act says that any marriage performed under that law of a Hindu belonging to an undivided joint family shall be deemed to result in his “severance from such family“.Thus, there is a statutory sanction to disinheriting from the ancestral wealth any Hindu who resorts to civil marriage, which is an option available to those who wish to avoid religious rituals or marry outside the community (without converting the spouse). Such a disincentive to civil marriage is out of sync with the spirit of the 2005 amendment and the social trend towards inter-caste and inter-community marriages. It also serves as an obstacle to India moving towards its constitutional goal of uniform civil code.
Muslim daughters better off
The 2005 amendment is also a reminder of India's failure to reform the Muslim personal law, which allows polygamy and extra-judicial divorce. When it comes to property rights, the Muslim law gives the daughter no more than one half of the share of her male counterpart.All the same, since the Muslim daughter has such an entitlement even in the self-acquired property of her father, she is better off than her Hindu counterpart. After all, the proportion of nuclear families and self-ac quired properties is rapidly increasing across all communities.
Given that the 2005 reform is only about ancestral properties, the Hindu father continues to enjoy unfettered discretion to bequeath his self-acquired properties to whoever he wishes. “This is a loophole that still allows Hindu patriarchs to discriminate against daughters with impunity ,“ according to Delhi-based lawyer and feminist author Arvind Jain.Out of some 100 wills drafted by him for clients generally perceived to be “progressive“, Jain estimates that barely two or three of them have made any provision for their daughters in the disposition of their self-acquired properties.
Biased wills
One way to mitigate this rampant gender bias is to take a leaf out of the Muslim law, which imposes a limit on the freedom of testamentary disposition. The Muslim father can will away a maximum of one-third of his property while the rest is divided among his legal heirs of both genders. Significantly, when the Law Commission asked in 2000 whether such a restriction should be imposed on the freedom of the Hindu father as well, the majority of the respondents favoured this radical idea.Those reform seekers were, however, almost evenly divided on whether the right of testamentary disposition should be confined to one-third or one half of the Hindu's self-acquired properties. Even as it admitted that “there has been a strong demand for placing a restriction on the right of testamentary disposition“, the Law Commission without giving any reasons said that after “due deliberation“ it was “not inclined“ to go so far in its recommendations.
The equality granted to the Hindu daughter in the context of ancestral property cannot make much difference on the ground unless this concept of curtailing the right to will away self-acquired properties is adopted. This may , however, amount to privileging equality over liberty to check a mischief.
Maintenance against property
Must be written in gift deed
Dec 8, 2022: The Times of India
New Delhi : The Supreme Court has ruled that parents gifting their property to children in lieu of being cared for in their old age must put this condition in writing in the gift deed.
Otherwise, the property gift can’t be revoked even if the children neglect their old parents, reports Dhananjay Mahapatra. An apex court bench of Justices Sanjay Kishan Kaul and A S Oka gave this practical advice to senior citizens, who generally gift self-earned properties totheir children in the understanding, hope and expectation that they would be well looked after in their sunset years when ailments routinely affect them.
Gift deed did not contain maintenance clause: SC
Even though all parents, who in old age are neglected by their children, have a right to move dedicated tribunals invoking the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, this Supreme Court judgment was on revocation of properties gifted to children in lieu of maintenance.
Writing the judgment, Justice A S Oka delved into the applicability of Section 23 of the 2007 Act and said, “For attracting the Section, following two conditions must be fulfilled — A. The transfer must have been made subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor; and B. The transferee refuses or fails to provide such amenities and physical needs to the transferor.”
“If both the aforesaid conditions are satisfied, by a legal fiction, the transfer shall be deemed to have been made by fraud or coercion or undue influence. Such a transfer then becomes voidable at the instance of the transferor and the Maintenance Tribunal gets jurisdiction to declare the transfer as void (if the children do not take care of the parent who gifted them the property),” he said.
In this case, a Gurugrambased mother had gifted certain properties to her children. She later moved the Maintenance Tribunal for revocation of the gift deed alleging the children aren’t taking care of her. The tribunal found the allegations true and annulled the gift deed in May 2018. The Punjab and Haryana high court concurred with the tribunal’s decision. Justices Kaul and Oka reversed the decision saying the gift deed did not contain an express clause for maintenance of the old woman in lieu of her property gift to her three children. Hence, the gift deed cannot be revoked, the bench said.
Self-acquired property
Son has no legal right in parents' house: Delhi HC
Adult son has no legal right to stay in parents' house: HC, Nov 30, 2016: The Times of India
Highlights
- A son has no legal right to live in the self-acquired house of his parents, the Delhi high court has said
- He can only reside there only at their "mercy"
- Only because parents have allowed the son to live in their house does not mean they have to bear his "burden" throughout life, the court added.
Son has no legal right in parents' house, can stay at their mercy: Delhi high court
NEW DELHI: A son, irrespective of his marital status, has no legal right to live in the self-acquired house of his parents and can reside there only at their "mercy", the Delhi high court has said.
The court also said that only because parents have allowed the son to live in their house as long as their relations are cordial does not mean they have to bear his "burden" throughout his life.
"Where the house is self-acquired by the parents, son whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents up to the time the parents allow," Justice Pratibha Rani said in an order.
"Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial does not mean that the parents have to bear his burden throughout his life," the court said.
It said this while dismissing an appeal by a man and his wife challenging the order of a trial court which had passed a decree in favour of his parents, who had filed a suit seeking a direction to their son and daughter-in-law to vacate the floors in their possession.
The parents, both senior citizens, had told the lower court that both their sons and daughters-in-law, who were living with them, have made their "life hell" after which they had given complaints to the police and also issued public notices in 2007 and 2012 debarring them from their self-acquired property.
Both the sons and daughters-in-law had contested the suit before the trial court while denying the allegations. They had also claimed that they were the co-owners of the property as they had contributed towards its purchase and construction. “Where the house is self-acquired by the parents, the son, whether married or unmarried, has no legal right to live there. He can stay at the parents' mercy up to the time they allow it,“ said the order, delivered early this month.
The case had come to the high court after the son challenged the order of a trial court in favour of the parents.
The parents, both senior citizens, had told the lower court that both their sons and daughters-in-law, who were living with them on the first and second floors respectively, had made their “life hell“. The couple had filed police complaints against them and issued public notices in 2007 and 2012 disowning the children. “Merely because the parents have allowed him to live in the house so long as his relations with them were cordial does not mean that they have to bear his burden throughout his life,“ the court observed.
The sons had refuted the allegations and claimed that they were co-owners of the property as they had contributed towards its purchase and construction. However, the sons failed to produce proof that they invested in the parents' property .
In the order, Justice Rani noted that the sons were unable to prove that they were co-owners of the property , while the parents produced the relevant papers, such as the general power of attorney , agreement to sell, possession letter, affidavit, etc.
However, the trial court had passed the decree in favour of the parents after which one of the sons, along with his wife, had moved the high court.
‘Tribunal can evict children from parents’ property’
A senior citizens maintenance tribunal can evict a son or a daughter from the parents’ property on grounds of ill treatment and harassment, the Delhi high court has ruled.
Empowering the tribunal so that elderly abuse doesn’t go unpunished, a bench of justices Sidhharth Mridul and Deepa Sharma stressed that welfare laws require a liberal interpretation “wide enough to achieve the legislative purpose and to be responsive to some social demand in a welfare state.”
The court ordered immediate eviction of the errant sons of the petitioner father, noting that the objective for which the Maintenance & Welfare of Parents & Senior Citizens Act was brought into force was the “welfare of parents’ and senior citizens and for the protection of their life and property.”
The court said this leaves “no manner of doubt that the maintenance tribunal constituted under the Act has the power and jurisdiction to render an order of eviction.” It underlined that the law was enacted with the “resolve to provide for more effective mechanism to ensure maintenance and welfare of parents and senior citizens as recognized under the Constitution of India.”
It was clear that in the case before it, the sons had failed to show any rights to continue to occupy the property of their father against his wishes, more so when he complained of ill treatment and harassment at their hands.
Granting relief to Mohammud Aftab Khairi, the court asked the police to restore possession of the property to him and rejected the appeal filed by his sons.
In their plea, the sons argued that a maintenance tribunal had no jurisdiction to order their eviction. The sons also claimed that the tribunal, at best, is an administrative forum and doesn’t have any judicial power.
In his complaint to the tribunal, the father Khairi had said that he owned a property in Hauz Khasi and shared the building with his three sons. The father alleged that despite spending a huge sum of money on renovation of the property and providing separate residential accommodation to his sons, the latter refused to pay him a monthly maintenance for his upkeep and treatment of his ailing wife.
To add insult to injury, the father told court, that one of his daughters-in-law filed a criminal complaint of outraging her modesty against him. Unable to bear the humiliation any further, the father decided to approach the Senior Citizens Maintenance Tribunal.
The father alleged that despite spending a huge sum on renovation of his property and providing separate residential accommodation to his sons, the latter refused to pay him monthly maintenance for his upkeep and treatment of his ailing wife
Property in parents’ legal possession
Abusive adult children can be evicted
Eviction OK from rented houses too, Mar 16 2017: The Times of India
Adults who abuse their parents while living in their house can be evicted from the property , the Delhi high court has held.
The court specified that the house need not be self-ac quired or owned by the parents. As long as they are in legal possession of the property, abusive sons and daughters can be evicted.
This plugs a gap in a 2007 law that had left it to state governments to frame rules to protect the life and property of senior citizens. Interpreting provisions of the Main tenance and Welfare of Parents and Senior Citizens Act 2007 (MWPSCA), Justice Manmohan ruled that the senior citizens' maintenance tribunal “can issue an eviction order to ensure that senior citizens live peacefully in their house without being forced to accommodate a son who physically assaults and mentally harasses them or threatens to dispossess them.“
HC found that Delhi government had allowed a senior citizen to complain to district authorities to evict abusive children only from a self-acquired property , even though the Act make no such distinction and gives protection to parents even in a rented accommodation.
“Consequently , this court directs government of NCT of Delhi to amendformulate its rules framed under Section 32... as well as an action plan under Section 22(2) of the Act, in conformity with this judgment,“ the HC directed.
It was hearing an appeal filed by an alcoholic man, challenging the tribunal's order to evict him from a Civil Lines residence where his parents live.
After relying on various precedents, HC said that “the 2007 Act, amongst other remedies, provides for eviction of adult children in cases of parental abuse -like in the present case“ and ordered the local SHO to ensure the man was evicted from the house immediately .
In the first round of litigation, HC had brokered an agreement between the two sons (second son had moved out later) and the parents who were living in an accommodation provided to them by a private trust where the father worked. As per the settlement, the sons were allowed to live in the father's ancestral property in Haryana but one of the siblings backed off from the agreement and challenged his eviction.
While refusing to re-examine the settlement, HC however delved into the legal issue, namely , whether the 2007 Act provides the sole remedy of monetary maintenance by children relative or does it also provide for eviction of adult children in cases of parental abuse.
The court then zeroed in on Section 23 of the Act to hold that it empowers the maintenance tribunal to do full justice in cases of elderly abuse. The tribunal has “the jurisdiction to not only pass an eviction order but also to issue directions to give effect to the same under Section 23 of the Act 2007“, the court observed.
It pointed out that Section 23 of the Act uses the expression “transfer“, ostensibly to offer the widest possible protection to the senior citizens. It said property rights of elderly parents can't be restricted to self-acquired or owned house.
It further observed that “the primary objective of the 2007 Act is to protect the life and property of senior citizens.“
Stepchildren
Stepsons must help childless stepmother: HC
The Times of India, Jul 18 2015
Chhattisgarh high court has upheld that a childless stepmother is entitled to maintenance from her stepsons.
A single bench of Justice Sanjay K Agrawal dismissed a criminal revision petition filed by Deenbandhu and Kanwar Lal, questioning the order of a family court in Kanker district that directed a 70-year-old woman to get maintenance of Rs 1,000 from her stepson.
Petitioners counsel D N Prajapathi argued that Section 125 of code of criminal procedure code, 1973, does not include the stepmother, who is unable to maintain herself.Non-applicant Birajo Bai's counsel supported the order of family court, citing judgments of other high courts.
