DAUGHTERS LEGAL RIGHTS TO INHERIT THE FATHER’S PROPERT

 Succession is occasioned for properties of Hindu Undivided Families when there is partition in the family or when a male coparcener dies leaving daughters. The HINDU SUCCESSION ACT, 1956   originally did not give daughters inheritance rights in ancestral property. They could only ask for a right to substenence from a joint Hindu family. But this disparity was removed by an amendment to the Act on September 9, 2005. It was a landmark amendment to the HINDU SUCCESSION ACT, 1956. Which originally denied women the right to inherit ancestral property ruled that a Hindu woman or a girl will have equal property rights alongwith her male relatives for any partition made in ancestral property.

The HINDU SUCCESSION (AMENDMENT) ACT,2005, amended sections 4,6,23,and 30 of HINDU SUCCESSION ACT. It revised rules on coparcenary property giving daughters of the deceased equal rights with sons and subjecting them to the same liabilities and disablities. The amendment essentially furthers equal rights between males and females in legal system.

Before the enactment of the HINDU SUCCESSION ACT,1956 Hindus were covered by Shastric and customary laws that varied from region to region. Under the Mitakshara School of Hindu Law, a woman in a joint Hindu Family had the right only of maintenance but not to inherit the property. Consequently, if a partition took place in the coparcenary property, then each male coparcener was entitled to a share but the daughters did not get any share as one of the heirs on the death of coparcener.

PROVISIONS OF HINDU SUCCESSION (AMENDMENT) ACT, 2005:

Section 6 (1) of Hindu Succession Act provides in a joint Hindu Family , the daughter of coparcener shall by birth become a coparcener in her own right in the same manner as the son. She shall have the same rights in the coparcenary property as she would have had if she had been a son and she shall be subject to the same liabilities in respect of the said property.

Section 6(2) property shall be held her with incidents of coparcenary ownership. And property is capable of being disposed of by her testamentary disposition.

Section 6 (3) provides where a Hindu dies after the commencement of Hindu Succession Amendment Act 2005, his interest in the property of joint family, shall devolve by testamentary of intestate succession. Property shall be deemed to have been divided as if a partition has taken place and daughter is allotted the same share as son. The share of the pre-deceased son or pre-deceased daughter, as they would have got had they been alive at the time of the partition, shall be allotted to the surviving children of such pre-deceased son or daughter.

Section 6(4) no court shall recognize 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.

Section 6(5) provides that partition means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a court.

Section 6(6) provides that nothing shall apply to a partition which has been effected before the 20/12/2004.

In CT Vs Maharani Raj Laxmi Devi, ..For[i] the purpose of partition of HUF, Section 6 of HINDU SUCCESSION ACT would govern the right of the parties, however so far as the INCOME TAX LAW is concerned , the matter has to be governed by Section 17(1).

Section 8 .. The property of male Hindu dying intestate shall devolve as per the provisions given below:

·      Firstly amongst the heirs of class I.

·      If no heirs in Class I then Class II.

·      If no heirs in both classes then amongst agnates of the deceased.

·      Lastly if no agnates then amongst the cognates of the deceased.

                 Class I heir

·      – Son

·      – Son of Predeceased son.

·      – Son of Predeceased son of Prede­ceased son.

·      – Widow

·      – Widow of Predeceased son

·      – Widow of Predeceased son of Predeceased son

·      – Mother

·      – Daughter

·      – Son of Predeceased Daughter.

·      – Daughter of Predeceased Daugh­ter.

·      – Daughter of Predeceased Son

·      – Daughter of Predeceased Son of Predeceased Son.

·      – Son of Predeceased Daughter of Predeceased Daughter.

·      – Daughter of Predeceased Daughter of Predeceased Daughter.

·      – Daughter of Predeceased Son of Predeceased Daughter.

·      – Daughter of Predeceased Daugh­ter of Predeceased Son.

        Class II heir

·      –      Father

·      –        Son’s Daughter’s Son.

·      –        Son’s Daughter’s Daughter.

·      –        Brother.

·      –        Sister.

·      –        Daughter’s Son’s Son.

·      –        Daughter’s Son’s Daughter.

·      –        Daughter’s Daughter’s Son.

·      –        Daughter’s Daughter’s Daughter.

·      –        Brothers Son.

·      –        Sister’s Son.

·      –        Brothers Daughter.

·      –        Sister’s Daughter.

·      –        Father’s Father, Father’s Mother.

·      –        Father’s Widow.

·      –        Brothers Widow.

·      –        Father’s Brother.

·      –        Father’s Sister.

·      –        Mothers Father.

·      –        Mothers Mother.

·      –        Mother’s Brother.

·      –        Mothers Sister.

·      Agnates of the deceased are relatives from the parental side. ‘A Person is said to be an agnate of another if the two are related to blood or adoption wholly through males’.

·      Cognates of the deceased are relatives through maternal side. ‘A person is said to be cognate of the deceased if the two are relative by blood and adoption not wholly through the males’.

Distribution of property  – Section 10

Following are the rules provided for the distribution of property among class I heirs:-

Rule 1- Intestate’s widow – one share [if he had more than 1 widow then also 1 share in total]

Rule 2 – Surviving sons, daughters & mother of deceased –one share each

Rule 3- The heirs in the branch of each predeceased son or each predeceased daughter of the intestate shall take between them one share.

Rule 4- The distribution of the share referred to in rule 3 –

–         Amongst the heirs in the branch of the predeceased son shall be so made that his widow (or widows) together and his surviving sons and daughter get equal portions; and the branch of his predeceased son gets the same portion;

–         Amongst the heir in the branch of predeceased daughter shall so made that the surviving sons and daughter get equal portions.

CONSEQUENCES OF AMENDMENT OF THE ACT:

Daughter shall be coparcener of Hindu Family Property. If a Hindu dies, the coparcener property shall be allotted to the daughter as is allotted to sons. If a female coparcener dies before partition, then children of such female would eligible for allotment assuming a partition taken place immediately before her demise. No recovery is made for ancestors dues from sons, grandson or great grandson by applying doctrine of pious obligation. A female member can also seek partition of the dwelling house where the family resides. A widow of a pre-deceased son even though remarried is now eligible for share in property as legal heir of the pre-deceased son of the family. A female can also dispose of her share in coparcener property at her own will.

The law, which gave equal right to daughters in ancestral property under the Hindu Succession Act, is prospectively enforceable and not with retrospective effect , the Supreme Court declared in its recent verdict.

Prakash v Phulavati[ii] 

The Karnataka High Court had held that daughters would be entitled to equal share even if father had died prior to September 9, 2005, when litigations over partition were pending in courts.

The defendants-appellants have questioned the Judgment and Order of the High Court with the contention that the amended provision of Section 6 has no application in the present case. Father of the plaintiff died on 18th February, 1988 and was thus, not a coparcener on the date of commencement of the Amendment Act. The plaintiff could not claim to be “the daughter of a coparcener” at the time of commencement of the Act which was the necessary condition for claiming the benefit

The amendments of 2005 gave equal right to daughters in coparcener properties by removing the discrimination that existed in the original enactment, the Hindu Succession Act, 1956 against Hindu women on rights over ancestral properties.

The Apex Court said that the rights under the Hindu Succession (Amendment) Act, 2005 are applicable to living daughters of living coparceners)as on September 9, 2005

“The text of the 2005 amendment, itself clearly provides that the right conferred on a ‘daughter of a coparcener’ is ‘on and from the commencement’ of the Hindu Succession (Amendment) Act, 2005.”

“We are unable to find any reason to hold that birth of the daughter after the amendment was a necessary condition for its applicability. All that is required is that daughter should be alive and her father should also be alive on the date of amendment,” the Apex Court said.

 Parameswari @ Gnanasakthi v Raja Ratinam and Others..[iii] the case related to a daughter married before March 25, 1989, laying a claim to half share as against one-fourth share, which was conceded as her share of her father's share on his death prior to the central amendment. It was decided that the claimant was married before the State Amendment Act. The view expressed, hereinbefore, is in conformity with this decision. It is only where no succession has taken place between March 25, 1989, and December 25, 2004, both married and unmarried daughters were on a par till the date of succession on or after December 25, 2004, so that the married daughter's share would get enlarged because of the central amendment and not in a case where there is succession during the interregnum between the State and Central amendments.

COMPILED BY:

VANITA BANSAL(ADVOCATE)

B.A.LL.B

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[i] CT Vs  Maharani Raj Laxmi Devi (1997) 224 ITR 582(SC)

[ii] Prakash v Phulavati 

[iii] Parameswari @ Gnanasakthi v Raja Ratinam and Others (2010) (5) CTC 51,

RIGHT TO INFORMATION – A GATEWAY TO FIGHT CORRUPTION

INTRODUCTION: September 28 is celebrated internationally as right to know Day. Inspite  of the fact that India has won its battle of independence in 1947 making democracy its weapon, unfortunately, the truth was something else. The power was handed over to the politicians and democrates , not to the common man then. In India, following a nationwide campaign led by grassroots and civil society organizations, the Government passed a landmark Right To Information Act in 2005. It is an Act “ to provide for setting out the practical regime of right to information for citizens ”. RTI mandates timely response to citizens’ requests for Government information. It is a initiative taken by Department of Personnel and Training, Ministry of Personnel , Public Grievances and Pensions to provide a RTI portal Gateway to citizens for quick search of information.

      

             The idea that Government withhold information for the public has become outdated. During the last decade, many countries have enacted legislations on freedom of information. In India, the Official Secrets Act 1923 was enacted to protect the official secrets. The new law intend to disclose information replacing the ‘ culture of secrecy ‘. It will promote public accountability which will trim the malpractices, mismanagement, abuse of discretion and bribery etc.

OBJECTIVES:  The object of RTI is to empower the citizens , promote transperancy and accountability in the working of the Government. The Act is a big step towards making the citizens informed about the activities of the Government. Social Activist Aruna Roy has described India’s RTI as “ the most fundamental law this country has seen .”

EFFECT OF RIGHT TO INFORMATION: While the debate on corruption in the country rages on, the RTI Act is fast growing as an effective anti- corruption tool.

Jan Lok Pal Bill gain tremendous public support with citizens coming out on the streets of Delhi, Banglore and other cities to voice their anger over corruption. Where RTI has been used by journalists and the media, the law has a broad base   of users. Earlier right to freedom of speech and expression is granted under Article 19(1) of Constitution, but it requires fair and efficient procedure to make the freedom of information work .  In the first three years, 2 million RTI requests were filed. The first and well known movement was by Mazdoor Kissan Shakti  Sangathan (MKSS) in Rajasthan for the access to village accounts. Case studies and media reports shows that RTI is being used to redress individual grievances, access entitlements such as Ration Cards and pension. The RTI has paved way for informed citizenry which would strengthen the democratic Government of India. With this Act, we can use our right to speech and expressions and control the Government activities effectively. The idea of open Government is becoming a reality with the implementation of RTI Act. The RTI can be called a success only if the bureaucracy accepts that they have constitutional to serve into.

PROVISIONS OF RTI:  Section 3 says all citizens shall have right to information. The Act enforces a duty upon the public authorities to disclosed all information. In V.S.Lee V. State of Kerala[i].. the remedy provided by Parliament is that wherever  there is substantial financial support, the People, have the right to know or information. Section 4(2) states that every public authority shall take constant steps to provide information suo moto to the public. Thus, the authorities have to give information voluntarily so that the public have minimum resort to use this Act. The public authorities also have to disseminate (making known or communicated the information to the public through notice boards, newspapers, public anouncements, media broad casts, internet and inspection of offices of public authority) information widely in any form which is easily accessible to the public. Information can be obtained by request in writing or through electronic means in English or Hindi or in official language of the area U/S 6. Here, the person has to give fees, and if request can’t be made in writing, the Central PIO and State PIO shall render all assistance to make request in writing form. If the information has been provided correctly or within time, it may be made available by appeal or complaint to the Information Commission U/S (8(a) 1). In The Registrar General V. K.U.Rajasekar[ii], it was held that Section 8 of RTI specially deals with the cases of exemption from disclosure or information when such information affects prejudicially the sovereignty and security of India etc. Section 5 says every public authority shall within 100 days  of enactment of the Act, designate as many as officers as the Central Public Information Officers or State Public Information Officers.

             

                  Section 6 permits person to obtain information in English or Hindi or in the official language of the area from the designated officers. The person need not to give any reason for the request. Section 7 requires the request to be disposed of within 30 days provided where information sought for concerns the life or liberty of a person, the same shall be provided within 48 hours. Section 7(7) before taking any decision for furnishing the information, the designated officer shall take into consideration the representation made by the third party U/S 11. Section 7(9) exempts granting information where it would divert the

Resources of the public authority or would be detrimental to the safety and preservation of the record in record. U/S 8 ,it is important to note that the Act specifies that intelligence and security organisations are exempted from the application of the Act. However, it is provided that in case the demand for information pertains to allegation of corruption and human rights violations, the Act shall apply even to such institutions.

  RIGHT TO INFORMATION AS A FUNDAMENTAL RIGHT: The RTI is a fundamental right as in Article 19(1)(a) of the Constitution is now a well settled proposition. It has been discussed by Supreme Court in Number of cases, it has been read into Article 14.(Right to equality), 19(1)(a) freedom of speech and expression and Article 21 (Right to life) through cases such as Bennet Coleman V. Union Of India, Tata Press Ltd. V. Maharashtra Telephone Nigam Ltd[iii]. Etc. The same Articles were also interpreted in Kharak Singh V. State of U.P[iv]., Govind V. State of M.P[v]. ETC. to include within their scope a right to privacy.

                  A plain reading of Section11 suggests that for the section to apply the following three conditions must be satisfied (i) if the PIO is considering disclosing the information (ii) the information relates to the third party (iii) the third party treated the information to be confidential , the third party to be consulted and a notice to be sent to that party . Section 19 provides two tier system of appeals- First appeal and Second appeal. Any person who is aggrieved by the decision of the Central PIO and State PIO within 30 days can prefer First appeal before the First Appellate Authority. This authority shall be an officer who is senior in rank to the Central PIO and State PIO. An appeal can also be made by third party. The Second appeal lies before the State or Central  Information Commission against the decision of the First Appellate Authority. It has to be filed within 90 days . As per Section 19(7), decision of Central or State Information Commission is final. The Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media and governance. In Nirmal Singh Dhiman V. Financial Commissioner Revenue[vi], Section 23 says that no court shall entertain any suit , application or other proceeding in respect of any order and no order shall be called in question, otherwise than by way of an appeal. In case, the complainant was aggrieved against the non-supply of information by the Public Information Officer.

CRITICISM: The Act has been criticized on several grounds. It provides for information on demand, but does not sufficiently stress information on matters related to food, water, environment and other survival needs. It does not emphasize active intervention in educating people about their rights to access information. Another thing is allowing for file notings except those related to social and development projects to be exempted . File  notings are very important when it comes to the policy making of the Government.

CONCLUSION: By enacting the RTI, India has moved from opaque and arbitrary system of Government to the beginning of an era where there will be greater transperancy and to a system where the citizen will be empowered. The real Swaraj will come not by the acquition of authority by a few but by the acquition of capacity by all to resist authority when abused.

    

 “KNOWLEGDE IS POWER, INFORMATION IS POWER, THE SECRETING OF INFORMATION MAY BE AN ACT OF TYRANNY COMUFLAGED AS HUMILITY.”

COMPILED BY:

VANITA BANSAL(ADVOCATE)

       B.A.LL.B

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[i] V.S.Lee V. State of Kerala

[ii] The Registrar General V. K.U.Rajasekar

[iii] Tata Press Limited vs Mahanagar Telephone-Nigam 1995 AIR 2438, 1995 SCC (5) 139

[iv] Kharak Singh V. State of U.P

[v] Govind vs State Of Madhya Pradesh & Anr 1975 AIR 1378, 1975 SCR (3) 946

[vi] Nirmal Singh Dhiman vs Financial Commissioner Revenue