Gift By ... Hindu /Mohammedan

Gift  ................by Hindu/ Mohammedan ................. immovable , movable property .............Requirement .....

                                       

- Gift means transfer of existing own  property made voluntarily and without consideration by one person (Donor) to another (Donee) and accepted by or on behalf of donee but not otherwise .

- A hindu governed by Mitakshara or Dayabhaga may dispose his separate or self acquired property by gift  subject to claim of maintenance .

- A Mitakshara coparcener shall not dispose of his coparcenary interest by way of  Gift without consent of other coparcener .

- But Dayabhaga coparcener may dispose his coparcenary interest by way of Gift without consent of other coparcener.

- Basically delivery of possession from donor to donee is most important ingredient for Valid Gift .

- A gift of immovable property be affected by registered instrument which shall be signed by or on behalf of the donor  and attested by at least 2 witnesses .

- A gift of movable property may be made orally .

- A gift once completed can not be revoked unless it was obtained by fraud or undue influence .

- A gift  made in contemplation of death is recognized by the Hindu Law .

--------------  Relevant Provision  ----------------------

.... provisions of Gift under un codified Hindu Law 

.... chapter Gift under The Transfer Of Property Act , 1882.

............. Relevant Judgement .................................

- Govndbhai Chhotabhai Patel and others v/s Patel Ramanbhai Mathurbhai 2020( 2) Mh.L.J.258.

-  Parvatibai @ Laxmibai Annaji Patil  v/s Baburao Ganu Kanade 2015(1) Mh.L.J. 628 = 2014(6) ALL.M.R.845.

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.. Gift (Hiba) under Mohammedan Law basic requirements....           

- Hiba literally means the donation of thing from which donee may derive benefit , unconditional transfer  of property made immediately and without any exchange or consideration by one person to another and accepted by or on behalf of the latter.

- Simply Hiba means transfer of property by one person to another without consideration or without an exchange.

- Hiba is a contract as per Mohammeden Law.

- The donor shall be sane and major and must be the owner of the property which he is gifting. Also property shall be in existence at the time of hiba.

- A manifestation of the wish or intention on the part of the donor to gift is first requirement.

- The acceptance by the donee either impliedly or expressly is second requirement.

- The taking of possession of subject matter of the gift by the donee is third requirement.

- In Mohammedan Law oral Hiba is permissible subject to fulfilment of above requirements.

- A Hiba does not require a registered deed means non registration of Hiba Will not affect validity.But registered hiba is only a valuable piece of evidence.

 - A hiba to an unborn person is not valid under Mohammedan Law.

........ Relevant Provision.........

 ..... Un codified Mohammedan Law chapter in respect of Hiba - Gift.

- - - - - Relevant Judgement - - -  - - - - - - - 

- Abdul Rahim & Ors v/s Sk. Abdul Zabar & Ors A.I.R 2010 S.C.211 = 2009 SAR 560= 2009(5) Mh.L.J.701.

- Rasheeda Khatoon (D) through LRS. v/s Ashiq Ali s/o Lt. Abu Mohd (D) through LRS 2014 SAR 1137 = 2014 AIR SCW 6261.

- Hafeeza Bibi & Ors v/s Shaikh Farid (D) By Lrs & Ors A.I.R.2011 S.C

1695=2011 SAR 523.

- Jamela Begum (D) Thr. Lrs v/s Shami Mohd.(D) Thr.Lrs. & Anr 2019 SAR 166.

............ Please read/peruse all Previous BLOGS Comment & give Suggestions for further development in next BLOG.......

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Review ....Judgement/Order ...

Review of Judgement and Order..............................By Court.......... Scope........

                                       

- Basically power of Review must be exercised within the framework of Section 114 and Order 47 of C.P.C. 1908 by Court.

- It be exercised by Court in following circumstances..

- The discovery of new and important matter or evidence which after the exercise of  due diligence was not within the knowledge of the applicant or could not be produced by applicant at the time of decree or order passed by court .

- Some mistake or  error apparent on the face of the record .

- Any other sufficient reason which require review  

- Review power is not inherent power but it conferred specifically so within ambit of above provision it must be exercised by court .

- But view taken by court in judgement or order is erroneous is not ground to review .

- Error of counsel not bringing to the notice of court the relevant precedents is not ground of review .

- Decision on a question of law on which the judgment or order of court is based is reversed or modified by the subsequent decision of superior court in any other case is not ground of review .

- Mere possibility of two views on the subject of judgment or order is not ground for review .

- Review application be disposed of as expeditiously as possible . Delay cause  injustice .

- Limitation for review application is 30 days it begins from date of decree or order .

- - - - - - - - Relevant Provision - - - - - - - - - - - - 

- Section 114 & Order 47 of Civil Procedure Code 1908.

- Article 124 of The Limitation Act 1963.

... . . . . . . . . Relevant Judgement ........

- Union of India & Ors v/s B.Valluvan A.I.R.2007 S.C.210.

- Lily Thomas v/s Union of India and others 2000(2) Mah.L.R 409 S.C.

- Haridas Das v/s Usha Rani Banik and others A.I.R.2006 S.C.1634 = 2006(4) Mh.L.J.14 SC.

- Surendra Kumar and Ors v/s Chief Executive Officer M.P. and Ors 2004 SAR 479.

- Kewal Chand Mimani (d) by Lrs  v/s S.K.Sen & Ors  A.I.R. 2001 S.C.2569 = 2001 SAR 632.

- Sri Dokka Samuel v/s Dr. Jacob Lazarus Chelly 1997 SAR 437 =1997 (4) SCC 478.

- Dr. Subramanian Swamy v/s State of Tamil Nadu & Ors 2014 SAR 432 = 2014 AIR SCW 6893.

- Sasi (D) through Lrs v/s Arvindakshan Nair and Others A.I.R.2017 S.C.1431 = 2017 SAR 898.

= = = = = = Please read/peruse previous 29 BLOGS & comment , give Suggestion for better development of next blog = = = = = = = = 

Partition - Decree - Execution - Limitation

Partition Decree in respect of Agricultural and House property .........It's ....Execution ....Limitation for execution .........

                                   

- Basically take into consideration that Partition Decree is a Preliminary Decree .

- In a partition decree rights of parties for seeking partition to their right (share) are declared .

- After above declaration to work out parties right (share ) in final decree  is remain till partition is carried out and final decree is passed .

- In a partition decree unless and until final decree is passed there is no question of any limitation running against right to claim partition as per preliminary decree .

- Question of limitation for execution begins or arose when final decree in partition suit become enforceable .

- S. 54 of  Civil Procedure Code 1908 is relevant in respect of Agricultural Land .

- If decree is in respect of House property or immovable property other than agricultural property then Final Decree of it shall be engrossed on the  non judicial stamp .

- After above engrossment final decree  it became executable for execution for taking possession as per it.

- - - - - - Relevant Provision  - - - - - - - - - - - - -

- S.2(2) , 54 of C.P.C.and Order 20 Rule  12 , 18 , Order 21 Rule 35 of  C.P.C.

- Article 136 , 137 of The Limitation Act 1963.

........... Relevant Judgement .......................

- Dr. Chiranji Lal (D) by Lrs v/s Hari Das (D) Lrs A.I.R.2005 S.C.2564= 2005 SAR 545.

- Bikoba Deora Gaikwad & Ors v/s Hirabai Marutirao Ghorgare 2008 SAR 704=A.I.R.2009 S.C.(Supp) 454.

- Shub Karan Bubna @ Shub Karan Prasad Bub v/s  Sita Saran Bubna & Ors 2009 SAR 978= A.IR.2009 S.C.(Supp) 2863.

- Venu  v/s Ponnusamy Reddiar (D) through Lrs  & Anr 2017 SAR 772=2017(5) M.L.J.296.

- Engross on non judicial stamp..

.... Shankar v/s Chandrakant Lokhande A.I.R.1995 S.C.1211.

.......Vishwasrao v/s Ushabai A.I.R.1988 Bombay 392.

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Ancestral - Separate/Self-Acquired ...Property

Separate or Self -acquired & Ancestral property .....................Basic requirement ....

                                    

- Basically essential feature  of ancestral property according to Hindu Law is that the sons , grandsons , and great grandsons of the person who inherits it , Acquire an Interest & the Right attached to such property at the Movement of their Birth .

- All property inherited by a male Hindu from his father , father's father or father's father's father  is ancestral property subject to above condition.

- Since 11-08-2020 [ i.e. Vineeta Sharma v/s Rakesh Sharma  Judgement of Supreme Court ] Daughter got right by birth in ancestral property .

- Property which is originally separate or self acquired by operation of Blending i.e. voluntarily thrown into the common stock with intention of abandoning all separate claims upon it  become joint family property .

- Property jointly acquired in business , joint labour of joint family is joint family property .

- Property purchased using nucleus of joint family property is a joint family property .

- No male or female issue acquire any interest by Birth in the Separate or Self acquired property of a Hindu .

- Separate , self acquired property is not liable to partition , but on the death of person intestate , it passes by succession to his heirs .

- Separate / Self acquired  property acquired by income of separate property , inherited from other than father , father's father , father's father's father , gift  will, of separate property , government grant , from separate earning , property held by sole surviving coparcener when there is no widow in existence who has power to adopt .

- - - - - - - - Relevant Provision - - - - - - - - 

......Provisions of un codified Hindu Law in respect of separate , self acquired ,ancestral , joint family property ...........

--------------- Relevant Judgement .....................

- Shashikant Shripad Pandit v/s Kaustubh Subhash Pandit 2020 Mh.L.J.302.

- Smt. Sheela Rameshrao Deshmukh v/s Amartya Surendra Deshmukh 2020 (2) All.M.R. 497.

- Arshoor Singh v/s Harpal Kaur & Ors 2019 SAR 809= 2019 Mh.L.J.Online (S.C.) 15=2019 ALL SCR 1982.

- Suman Vishnu Pathak v/s Usha Prabhakar Koparkar 2013(7) ALL.M.R.419 = 2013(2) Mh.L.J.268.

- Sarojani Chandrakant Tirhekar v/s Yamunabai Sopan Zol 2007(4) Mh.L.J.830 = 2007(3) All.M.R.428.

- Harinhar Choube vs Govind Choube 2010(4) Mh.L.J.524.

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Effect of Latest Judgement on Hindu Succession Act 2005

 Latest Update of - - - - - - - - - - - - - - - - - - - On - 11-08-2020  - Hindu Succession[Amendment] Act 2005 substituted new section for S.6 of the principal Act (i.e.Hindu Succession Act 1956)...... It's Relevant Effect...................

                              

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.      DIARY NO.32601 OF 2018 

VINEETA SHARMA  … APPELLANT(S)

VERSUS 

RAKESH SHARMA & ORS. … RESPONDENTS

WITH  

SPECIAL LEAVE PETITION (C) NO.684 OF 2016

SPECIAL LEAVE PETITION (C) NO.35994 OF 2015

SPECIAL LEAVE PETITION (C) NO.38542 OF 2016

SPECIAL LEAVE PETITION (C) NO.6403 OF 2019

SPECIAL LEAVE PETITION (C) NO.14353 OF 2019

SPECIAL LEAVE PETITION (C) NO.24901 OF 2019

SPECIAL LEAVE PETITION (C) NOS.1766­1767 OF 2020

-The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same

rights and liabilities.

- The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

- Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

- The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring

about the actual partition or disruption of coparcenary.   The fiction was only for the purpose of ascertaining share of deceased coparcener

when he was survived by a female heir, of Class­I as specified in the Schedule to the Act of 1956 or male relative of such female.   The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of son above in pending proceedings for final decree or in an appeal.

- In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court.  However, in exceptional cases where

plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a

decree of a court, it may be accepted.  A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

- on   this above  question,   suits/appeals   are

pending before  different  High   Courts   and  subordinate  courts.   The matters have already been delayed due to legal imbroglio caused by

conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6. The pending matters be decided, as far as possible, within six months.In view of the aforesaid discussion and answer, we overrule the views   to   the   contrary   expressed   in  Prakash   v.   Phulavati  and Mangammal v. T.B. Raju & Ors.  The opinion expressed in Danamma @

Suman Surpur & Anr. v. Amar  is partly overruled to the extent it is contrary to this decision..

J.(Arun Mishra).

J.(S. Abdul Nazeer).

J.(M.R. Shah)      

New Delhi:

August 11, 2020.

 -------------------------------------------------------------- Before Above Judgement Legal Position ---------   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

- above amendment come into force since 9 September 2005.

- Since amendment Daughter of joint hindu family governed by Mitakshara law become Coparcener as like Son.

- Also Daughter have same right in coparcenary property since amendment like Son.

-Also Daughter have some liabilities in coparcenary property as like Son since amendment.

-Since amendment Hindu Mitakshara coparcenary include Daughter as coparcener.

-Proviso- any disposition, alienation, partition(registered/effected by decree of court ), testamentary disposition of property which had taken place before 20 December 2004 shall not affect, invalidate due to above Amendment.

-Daughter have right to dispose by testamentary disposition(i.e. by Will) his share in the coparcenary since amendment.

• -A Hindu dies after amendment (i.e 09-09-2005) his interest in the Hindu Joint Family property governed by Mitakshara shall devolve by testamentary or intestate succession as per Amended Act & not by survivorship. & Coparcenary property shall be deemed to have been divided as if partition had taken place .

- Since amendment Daughter is allotted same share as is alloted to a Son.

-Pre deceased Daughter's share alloted to her surviving child.

- Share of predeceased child of pre deceased Daughter shall alloted to child of predeceased child of pre deceased daughter.

- Since amendment no court shall recognise any right to proceed against son,grandson, great grandson, great grand father for recovery of any debt due from his father ............. Solely on pious obligation.... Provided debt before amendment shall not affect.

- Nothing contained in amendment shall apply to partition(registered/effected by decree of court) which has been effected before 20 December 2004.

............. Related Judgement.............

-1) Sadashiv Sakharam Patil v/s Chandrakant Gopal Desale 2012(1) Mh.L.J.2011=2011(5)Bin.CR726

-2) Ganduri Koteshwaramm & anr v/s  Chakiri Yanadi & and 2012(1) Mh.L.J.613=2011(9)SCC 788

-3) Vaishali Satish Gonarkar v/s Satish Keshavarao Gonarkar 2012 (3) Mh.L.J.669=AIR 2012 Bom 110

- 4) Badrinarayan Shankar Bhandari v/s Omprakash Shankar Bhandari 2014(5)Mh.L.J.(F.B.) 434=AIR 2014 Bom 151

- 5) Prakash & ora v/s Phulavati & ors 2016(1)Mh.L.J.(S.C.)1=2016(2)SCC 36

- 6) Danamma alies Suman Surpur & another v/s Amar & others 2018(3) Mh.L.J.451(S.C.)

- 7) Mangamal Thulasi & anr v/s T.B. Raju & ors Supreme Court - Civil Appeal no. 1933/2009- Decided on 19-04-2018.

..…... Please Comment & give Suggestions.........

Probate - Is - Required ......?

When Probate Is Required  as per The  Indian Succession Act  1925

.........

                           

Basically  probate is a copy of will certified under seal of competent court for administration of estate of testator .

- Also probate means determination of genuineness and due execution of the will .

- Probate does not determine title of the property of the testator .

- Probate  does not required in case of Will made by Muhammadans or Indian Christians .

- Probate does not required in case of Will made by Hindu , Buddhist , Sikh or Jain  if Property of will is not within territories  or Local Limits  of the  Ordinary Civil Jurisdiction of  High Courts of Judicature at Madras and Bombay .

- Probate is  required in case of Will made by  Hindu , Buddhist , Sikh  or  Jain  Outside the Ordinary Jurisdiction Of above Madras and Bombay High Courts in respect of  Properties situate  within Original Civil Jurisdiction of those High Courts .

- Probate is required in case of will made by Parsi dying after commencement of amendment of Indian Succession Act 1962 in respect of property situate within Ordinary Original Civil Jurisdiction of  the  High Courts at Calcutta , Madras  and Bombay even it's made within or outside jurisdiction .

- District Court or Where powers of District are delegated to Civil Judge Senior Division have jurisdiction in granting and revoking Probate .(IMP :- please kindly peruse or go through CHAPTER - XIV i. e. 14 of Civil Mannual )

- Petition for Probate shall be verified by at least one of the Witness to the Will.

........ Relevant Provision ............

- - S.2(f) , 57, 213, 264, 276 , 280 , 281 of The Indian Succession Act 1925.

------ - - Relevant Judgement - - - - - - - - - -

- Jyoti v/s State of Maharashtra 1979 Mh.L.J. 307.

- Vishnu Ramachandra Undage v/s Ganpati Ramachandra Undage 2005(4) Mh.L.J.1108.

- Ganapati  Narayan Nikam v/s Ramachandra  Bhiku Sawant 2009(6) Mh.L.J. 948.

- Shewantabai Bhagat v/s Arun Bhagat 2011(3) Mh.L.J. 136.

- Ramachandra Hande v/s Vithalrao Hande 2011(4) Mh.L.J. 50.

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Nominee & Succession Certificate.. ..Provision

Nominee ............. Nomination.......... Succession Certificate................ Related legal provision........

                                    

- In general a person may nominate any person as   his nominee in service record , bank insurance record .......Etc.      

- Basically nominee is nothing but trustee of person who nominated him as his nominee.

- Nominee is a person to collect property of a person who nominated after his death.

- Nomination does not confer any beneficial interest on the nominee.

- Nominee is entitle to receive the property of the deceased but the same are to be distributed according to the Law of Succession which is applicable to deceased.

- Nominee does not confer any legal right of Succession of a person who nominated as nominee on the nomination.

- But nominee can file an application for succession certificate & receive property of deceased but same shall be distributed according to Law of Succession.

- In case of nominee is other than Legal Heir of deceased , the Legal heir of deceased can claim property of deceased in accordance with the Law of Succession.

.......... Relevant Provision............

....S.372 of Indian Succession Act 1925.

... Law of succession e.g. Hindu Succession Act, Indian Succession Act, Succession in Mohammedan Law ..Etc

 - - - - - Relevant Judgement - - - - - - -

- Shipra Sengupta v/s Mridul Sengupta & Ors 2009 SAR 875.= 2009(6) All.M.R.486.

- Vidhyadhari v/s Sukhrana Bai 2008(3) Mh.L.J.(S.C.) 1

- Antonio Joaofernandes v/s Assistant Provident Fund Commissioner Goa 2010(4) Mh.L.J.751.

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