Posted in Family Law

Exploring the term ‘Benefit of estate’ as basis of alienation of property

Discerning the meaning of the term benefit of the estate as grounds for alienation of the property by Karta while looking at a myriad of cases stretching over a century and half. With the attempt being to assess whether a cogent, all-encompassing definition concerning for benefit of the estate can be achieved or not.

 

Introduction

The evolution of Hindu law concerning the Hindu family institution is an ardently unique position, to understand and appreciate which, its  pivotal to understand the functioning of the Hindu joint family system. To begin with, one must first explore the gamut of coparcenary relationships and the manner in which the devolution of property takes place ( Thus focusing on the previously established position of law under Mitakshara School).

A standard Hindu Joint family comprises of one common ancestor and all his lineal male descendants up to any generation along with the wives/widows and any unmarried daughters of the common ancestor. However the conception of rights of individuals finds its basis in the concept of coparcenary. A much a narrower concept, it  provides for rights in ancestral property o both male and female[1] members of the family, subsequent to them fulfilling certain conditions.

While the presence of the aspect of individual right is rife, in matters of legal and religious importance the cohesive structure of the family comes to the fore to take decisions on such aspects. Chief amongst them is the position holder of the Karta. The de facto head[2] of the family, the Karta holds myriad of portfolio’s in regard to his responsibilities and powers pertaining to the responsibility of managing the family and their property.

The standard conception entails the senior most member of the family being anointed with the position of the Karta, provided he doesn’t suffer from any mental physical ailments[3]. Additionally, while the senior most member is on principle deemed as the Karta, there can be multiple scenarios where other family members[4] can act in the position of the Karta, provided the requisite provisos are completed.

However it is nigh impossible to juxtapose or categorize the position of the Karta with that of a manager[5] of property or to establish a mere principal-agent relationship between the Karta and the family members. In addition to these, neither can the position of the Karta be understood as one of the trustees of the family property, thus by extension the Karta does not have an inherent responsibility of  having accountability to the rest of the family members. That responsibility emerging only upon being questioned so or when there is an element of fraud in regard to the family’s holdings.

The Karta thus posits oneself as the supreme head of the family while simultaneously serving as the custodian of family property, to be utilized in the interests of the family members[6]. The attempt in discerning the position of the Karta was to have  brief idea about the almost omnipotent/ autocratic position that the Karta occupies. Furthermore contending with the subject matter of the paper i.e. the Karta’s power of alienation ( with specific focus on alienation carried out for the purpose of benefit of estate and the meaning behind the same).

ALIENATION AS A CONCEPT

The term alienation in the context of the discussion regarding the Hindu Family entails the transference of Joint family property for value , thus by extension binding the interest of both the adult and minor coparceners provided it is done in the presence of certain condition. Now before one engages with the aforementioned conditions, some of the entities who can carry out alienation are follows: The Karta, Father, Any Coparcener, Sole surviving coparcener and manager of the property.

For the purposes of this paper our focus will be on the Karta’s power of alienation. Now the powers of alienation as conferred to the above mentioned act on the fulfillment of certain conditions. While the standard position as such entailed that no single coparcener could alienate the property, the Dharmashastra  in certain circumstances allowed for one coparcener to alienate the property.

Furthermore the Vijayneshwara school laid down a trifocal basis for alienation of property by the karta. They are the following, Apatkale[7], it entails the alienation of the Joint Family property in extremely exigent circumstances such as famine, epidemic. However that as a basis has been extended upon in the modern iteration of law[8]. The second criterion being Kutumbarthe which entails alienation carried out for the sake of the family property. The last aspect contending with indispensible duties such as charitable, pious purposes. The Vijayneshwara in regard to this specific aspect mentions one example which is the Dharmarthe i.e. the obsequies of the father such shradha, upanayana amongst others.

Apart from the above set of circumstances the Karta can also alienate the Joint family property in scenario where the family members are in consensus. Though differential stands are taken in regard to when some of the  family member consent to alienate, while other do not by varied schools[9]

ALIENATION CARRIED FOR THE PURPOSE OF BENEFIT TO THE ESTATE

The definitive case which first dealt with the issue of Benefit of estate as basis for alienation of property (apart from legal necessity) was the case of Hanooman Persuad v. Mussumat Babooee[10]. The court in this specific dispute was in a conflict of opinion regarding the exact meaning of them “benefit of the estate”.

One view being that a transaction cannot being deemed as being for the benefit of the estate unless and until it doesn’t possess a defensive character i.e. a transaction carried out to protect the estate from an eminent danger or destruction.[11] While the other view asserted that to classify the alienation under the guise of benefit of estate it is sufficient that owner or a trustee would have carried out the with the knowledge that was available[12] to them at the time of the transaction.

The next case which added another definitive basis to term was the one of Palaniappa v. Deivasikamony  AIR 1917 PC 33[13]. The case dealt with the question of whether a mahant i.e. the head of math possessed the power to alienate a debutter land. The  Judicial committee in this case very appropriately summed the problem  with defining the term benefit to the estate. For basic aspect such as preservation of the estate from extinction, defense against hostile litigation affecting it, protection of certain portion from inundation or injury could very well be construed benefits. However the problem lay with drawing  a clear demarcation as to what constituted benefits and what did not.

In the subsequent years between the above mentioned judgments, an interesting judgment as given by a full bench of the Bombay High Court in the matter of Hemraj v. Nathan[14]stated that while a property cannot be alienated solely for the purpose of enhancing its value. It would however be an equally incorrect assumption to state that no transaction can be of the be of the benefit of the estate which is not of a defensive a character.

In addendum to this came the 1964 Supreme Court in the matter of Balmukund v. Kamlavati & Ors[15]. The matter was instituted by  an individual who had bought a piece of land from the manager of the property (one of the four brothers owning the Joint family property), only for the manager to not go through with the transaction after contractually agreeing for the same. The Supreme Court in the matter averred that a transaction to be regarded as carried for the benefit of the family need not necessarily be of a defensive character. Instead the criterion should be imposed on the basis whether  the said transaction conferred or sought to confer benefit to the family[16].

It was further stated that in a scenario where all the adult members alongside the manager agree on selling the estate with an intent to get a new property would be deemed as being benefit to the estate. Provided all concerned member are well aware of the needs and demands of the family. Thus setting aside the position of the Hemraj[17] case. This position has also found reflection  in the later year cases of  Hari Singh & Anr. v. Umrao Singh & Anr. AIR 1979 All 65 [18], wherein a land not yielding profit was sold only to be used as basis for land yielding profit, this was deemed as being benefit to the estate.

Simultaneously there have been judgments which state that a transaction cannot be deemed as being benefit to the estate if it simply carried for the purpose of buying another piece of land[19].

In recent cases before the Bombay and Madras High Court [20]respectively ,the Court while examining the matter has often pondered the exception as laid out in the Balmukund[21] case contending with the issue of sale of a property to buy another a property. Thus this question serves as the prime basis of contention ( on evidence adduced from the recent years) regarding the definition of the term Karta.

CONCLUSION 

The Court on multiple instances has averred that owing to the inherent subjective nature of this aspect, that the aspect of the term benefit of the estate would be assessed on a case to case basis. However a requisite change that needs to be made in this regard is changing the nomenclature of the term benefit of the estate to the act of good management as stated by J. M. Kumar in the case Jagdish Parshad vs Laxmi Narain And Anr (2003) 135 PLR 481[22]. For an understanding such as that would greatly end the disputation surrounding this subject matter. More specifically if the changing the nomenclature is difficult , then effective/good management[23] should certainly be set in as a qualifier for understanding the concept of alienation of property by Karta. For an attempt such as this if not unify would certainly simplify the various positions that court across the country have taken in regard to alienation under the aegis of benefit of estate.

[1]  The Hindu Succesion Amendment Act, 2005

[2]  Sir Dinshah Fardunji Mulla’s classic Principles of Hindu Law, article 236

[3]  Suraj Bans Koer v. Sheo Prasad (1880) 5 Cal 148

[4]  Nopany investments v. Santokh Singh AIR 2008 SC 673

[5]  Union of India v. Shri Ram Bohra & Ors. AIR 1965 SC 1531

[6]  Id. at 2

[7] Sir Dinshah Fardunji Mulla’s classic Principles of Hindu Law, Ed. 21st , pg. 375

[8] Devulapalli Kameswara Sastri v. Polavarapu Veeracharlu (1911) ILR 34 Mad 422 – this case held that necessity should be understodd in the context of the family as to what will be deemed as proper and reasonable rather  tahn having a notion of something being absolutely indespensible

[9] While the Bombay and Madras schools allow for the share of the consenting coparceners to be bound for alienation, the same is not true as per the West Bengal and the Uttar Pradesh schools.

[10] Hanooman Persuad v. Mussumat Babooee, (1856) 6 MIA 393

[11]  This aspect has been discussed  in the case of  Bhagwan Das v. Mahadeo  (1923) 45 All 390

[12] Sir Dinshah Fardunji Mulla’s classic Principles of Hindu Law ,PAGE 381-380,  §241 A

[13] Palaniappa v. Deivasikamony  AIR 1917 PC 33

[14] Hemraj v. Nathan  (1935) 37 BOMLR 427

[15] Balmukund v. Kamlavati & Ors AIR 1964 SC 1385

[16] Id. at  13

[17] Id. at  14

[18] Hari Singh & Anr. v. Umrao Singh &Anr. AIR 1979 All 65

[19] Nirmal Singh v. Satnam , AIR 1960 Raj 313

[20] Kashinath Rajaram Kasbe And Ors vs Dattatraya Ramchandra Kasbe (2014) 56 BOMLR 472

    Vijayalakshmi vs A. Govindasamy( 2013) ILR 72 Mad 453

[21] Balmukund v. Kamlavati & Ors AIR 1964 SC 1385

[22] Jagdish Parshad vs Laxmi Narain And Anr (2003) 135 PLR 481

[23] As was mentioned in the case of  Hurry Mohan v. Ganesh Chander, (1884) 10 Cal 823



ABOUT THE AUTHOR

_20160425_233454

Dhruv Shekhar is at present a law student at Jindal Global Law School (JGLS), having studied History before at St. Stephens College. Intrinsically passionate about the Films, Books and Football, he seeks to examine and study his interests within the ambit of the legalities concerned with the said subject matter. 

Posted in Marriage and family

Battle of Love: Special Marriage Act, 1954

This article has been written by Piyush Bajaj. Piyush is currently a BCom LLB student at Amity Law School, Noida.

Marriage is considered to be a sacrament in our country, as it is the most integral tradition which is being followed from over hundreds of years.

India has been a land where a boy and a girl weren’t allowed to select their partners on their own as it was their parent’s duty because of their thinking that they were a lot wiser and experienced than their children and will decide the best for them. The concept of marriage is considered to be very auspicious in every religion in the country as it is a summit of two souls with the personal laws of every religion being followed.

The influence of caste and religion is enormous in our society especially in matters of marriage as it is considered to be the most important criteria for a properly solemnized marriage. Parents search for the bride or groom in the same cast or religion of theirs, as Inter-cast or Inter-religion marriages are considered to be a taboo. People are forced to marry according to their family’s will or due to the pressure of the society, but the question arises “What if someone wants to marry a person of other caste or religion”? So the society gave the answer to us as “Honour Killing”. The grave need of ending such crimes and to support people who believed in stepping up of the cast or religion barriers, the parliament enacted the Special Marriage Act, 1954. The act provides a special form of marriage in which any citizen of India can marry irrespective of any caste or religion barrier.

This act resolves the problem of caste or religion being a barrier for the people who believe in marrying outside their caste or religion. So here are some features of the act enlisted for a better understanding –

  1. Requirements

To marry under this act, the parties need to file a notice to the Marriage Registrar of the district with the intention of marrying each other, in which one of the party has resided for at least 30 days preceding the date on which such notice is to be filed, then the marriage is said to be solemnized.

  1. Conditions
  • The groom must be of 21 and the bride must be of 18 years of age at the time of marriage.
  • The parties should be mentally fit in order to be able to decide for themselves.
  • They should not be under prohibited relationship or else it will otherwise act as a ground to dissolve their marriage.
  1. General Understanding

The general understanding is that marriages under this act don’t make it any less sacred or invalid. The constitution provides the right to marry any person of their choice, but this idea is supported as well as criticized too because of the influence of arranged marriages over love marriages has brought such situation, which even after so much of legislative and judicial progress hasn’t brought about a major change in the mindsets of people .

Conclusion

After such progress in matters of special marriages, people still face difficulties in accepting it as they feel it is a dishonour to them. But if we look at the positive side of these marriages, they add up to the national integrity. Most importantly the people of the country need to appreciate such marriages between different caste and religion as it will increase equality amongst the citizens and it will also set an example how to love and respect each and every person irrespective of their caste or religion barriers.


The December book bucket

court-room-genius                    Learning the law.jpg                     legal-eagles


 

Posted in Debatable topics, Marriage and family, Muslim Law, Personal Laws

Triple Talaaq: Religious empowerment or unjust vindicament

This article has been written by Soma Sarkar. Soma is currently a second-year student at Chanakya National Law University.

 

At-talaaqu marrataan: fa-imsaakum-bima`-ruufin `aw tasriihum-bi-ihsaan. Wa la yahillu lakum `an-ta`khuzuu mimmaa`aatay-tumuuhunna shay-`an `illaaa.

Talaq, Talaq and Talaq!!! Speak the three words in and the civil contract in the garb of Nikah comes to an end. Isn’t it a strange divorce without any justification to the other party and no judicial process requires to be ensued. One spouse enjoins his right, the other mourns over it. One exercises his freedom right at the cost of paralyzing the other with pain and agony, financial crisis and compelling her to lead a dog’s life. In a country where law is the king of kings and vox populi is of paramount importance, it is in the very same country such vindicament being practiced inducing us to believe that there is no Messiah of the victims. No, no not even law.

Talaq-i-Bid’ah, the sinful form of divorce or the best to say the innovated one can be defined as a divorce which is pronounced thrice in one sitting when the wife is in the state of purity (tuhr), i.e., when man says: “I divorce you, I divorce you, I divorce you.”  “The Affair of the Necklace” is a very popular episode said to be dealing with this talaq. Aisha who was Prophet’s wife, as the story goes on her way to the city lost her precious pearl necklace. While as a bee she was in search of it in the desert bushes, the caravan went ahead leaving her all alone. In this hour of need she was escorted by a stranger to the city. Seventeenth century was the time period so peoples’ whispering about the incident would not make anyone to bat an eyelid. In order to uproot the rumors along with the character assassination attempts from the grass-root level, the Prophet made a ruling that whoever raising an allegation on Aisha must produce 4 eyewitnesses to the misconduct or face punishment. Credit goes to the mullahs to twist a pro-women ruling into a whip to be cracked on the women themselves. So, today the existence of Sharia brings into light the perverted version of the episode.

 The Apex Court decisions too has been ambigious on the matter in question. Where a writ petition was filed to declare Muslim Personal Law, which enmpowers a Muslim male to give unilateral talaq to his wife without her consent and without resort to judicial process of courts, as void and offending Articles 13, 14 and 15 of the Constitution of India in the case of Ahmedabad Women’s Action Group (AWAG) and others v. Union of India[1]. The Court left the issue down in mouth on the ground that it involved State policies. So the remedy isn’t in form of judicial process that means it must be sought elsewhere. Simultaneously the efforts made by the court to inject some safeguards into the talaq process cannot be given cold shoulder. For a talaq to be effective, it must be pronounced. In Shamim Ara v. State of UP and another[2], a mere plea taken in a written statement of a divorce having been pronounced in the past was held not to be treated as effectuating a talaq. Instead, a talaq has to be ‘pronounced’, i.e. it has to be proclaimed, uttered formally and articulated. Therefore, the Court has introduced a condition precedent for the effectiveness of a divorce.

The approach of the Supreme Court in Danial Latifi v. Union of India[3] in the course of interpreting the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Court upheld that the validity of the Act would be unconstitutional if not construed to mean that women should get a reasonable and fair provision and maintenance.

It has taken 60 years of independence to make us realize that our constitutional values cannot be segregated from our cultural inheritance. Presently it has become the job of the courts to enforce constitutional values. When all forms of gender injustice has been overpowered and captured then why should this stand as a pillar of muslim society? The laws in Egpyt, Iraq, Jordan, Kuwait, Morocco, the Philippines, Sudan, Syria, the UAE and Yemen have  put down their feet. Why should the All India Personal Law Board be allowed to paade these inhuman and illegal practices in the 21st century?

[1] (1997) 3 SCC 573.

[2] (2002) 7 SCC 518.

[3] (2001) 7 SCC 740

 

Posted in Marriage and family

Judicial Separation: A second thought to divorce

This article is written by Shreya Bansal. Shreya is commerce graduate from Shri Ram College Of Commerce and is currently pursuing Bachelors Of Law from Faculty Of Law, DU.

 

 

A marriage is a blissful companionship of two people sharing mutual love, trust and understanding which promises to be the most beautiful phase of a person’s life. But sometimes the fruits of misunderstanding, distrust and anger get sown in it which might make surviving each other’s company even for a minute to be an excruciating experience. Well, most people assume that the last resort to end this menace is divorce. Is it so? Certainly not.
There is a provision of Judicial Separation under The Hindu Marriage Act, 1955 to give time to each of the partners to resolve their issues by living separately. The basic rationale behind this kind of provision is that through the method of judicial separation, both the partners get a chance to think rationally about their relationship without the strain of living together which results in tension and further wear and tear of their marriage.
A decree of judicial separation does not answer the question of continuance or discontinuance of marriage but it frees the partners from the obligation to live together, thus preventing them from indulging into any other fights or misunderstanding which can strain their marriage further.
As per Section 10 of The Hindu Marriage Act, 1955 a case for judicial separation can be claimed on the grounds of cruelty, adultery, desertion, forced conversion of religion, incurable diseases like leprosy, insanity, venereal diseases that are communicable, renunciation of the world by a spouse on religious grounds, either of the spouse not alive and seen for more than seven years. Moreover, a woman can claim judicial separation if there is enough proof that her husband solemnized another marriage and his other wife is still alive as well as on grounds of rape, sodomy, and bestiality.
One of the interesting features of judicial separation is that it is upon the discretion of the court whether to grant judicial separation or divorce straightway depending upon the facts and circumstances of each case. Thus, a second chance will be even to all the couples to resolve their issues keeping into consideration the severity of their differences and the scope for further reconciliation.
As per Section 13 of The Hindu Marriage Act, 1955 if a couple is not able to reconcile their differences within the period of one year from the date on which the decree of judicial separation is granted and are not able to cohabit again, they can obtain a divorce on this ground itself.
On the other hand if the parties are able to reconcile their differences during the period of one year of judicial separation and want to cohabit again, they can get their decree of judicial separation annulled anytime by the court. So as per Section 10(2), the court has the power to
rescind the order of judicial separation if it considers it just and reasonable to do so, provided such power of annulment is exercised with utmost care and upon complete satisfaction with regards to the same.
Hence, not only nature but law also gives second chance to all. To protect the institution of marriage and maintain the trust of people of our country into the same, the legal institution of our country has come up with this system of judicial separation for preventing them from taking any decision in the heat of the moment and resorting to a wrong life changing decision.

Posted in Debatable topics, Marriage and family

Live-in-relationships and the Indian Legal Perspective

Traditionally, the Indian society might have frowned upon live-in relationships. But the growing number of such couples indicates a degree of acceptance. Women, however, are still the losers.

‘Live-in-relationship’ is a living arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage. There is no marriage between the parties, in the sense of solemnization of a marriage under any law[1]. It is a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without the consent of the other party and one party can walk out at will at any time. Thus, people who  chose to have ‘live-in relationship’ cannot complain of infidelity or immorality.[2]

‘The idea of live-in-relationships may seem to be unique and appealing but in reality the problems likely to arise are many and challenging. The status of the women in such relationship is not that of a wife and lacks social approval or sanctity. Increase in litigation on matters pertaining to maintenance, legitimacy of children, inheritance etc is another area of great concern’.

Legal Status of Female Live-in-Partners and Judicial Approach

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[3]. The Supreme Court in D. Veluswamy v. D. Patchaiammal[4] has opined that the Parliament has drawn a distinction between the relationship of marriage and the relationship in the nature of marriage, and has provided that in either case the person is entitled to benefits under the Protection of Women from Domestic Violence Act, 2005.

The Malimath Committee on Reforms of Criminal Justice System, 2003, made recommendation that the definition of the word ‘wife’ in Section 125 should be amended so as to include a woman who was living with the man as his wife for a reasonably long period, during the subsistence of the first marriage.[5]

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[6].

A bench of Justices Vikramajit Sen and A.M. Sapre dismissed a petition by a man who claimed that since he was already married before entering into the live-in relationship; his partner could not claim the status of a wife to be legally entitled to maintenance under Hindu Marriage Act.[7]

All that we can observe is, that a live-in-relationship constitutes a distinct class from marriage. The question of legitimacy of child is also directly related to protection of women. On this point apex court in Madan Mohan Singh vs Rajni Kant[8] case said, “The courts have consistently held that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a number of years.”

In the absence of legislative framework in relation to relevant subject matter people may get confused due to different approaches of courts. The attempt by judges to fill the vacuum in law sometimes leads to arbitrariness, uncertainty and non-uniform application of law.[9]

The need of the present hour is not to try bringing live-in relationships under the ambit of any existing law but to enact a new different law which would look into the matter of live-in separately and would grant rights and obligations on the part of the couples.

 

[1] Swarupa N. Dholam, Socio-Legal Dimensions of Live-In Relationship in India, MAHARASHTRA JUDICIAL ACADEMY, 2(July 25, 2015), http://mja.gov.in/Site/…/final%20article%20in%20both%20lanuage%20(1).pdf

[2] Alok Kumar  v. State and Another, Crl.M.C. No. 299/2009 (Order dated 09August,2010)

[3] See Section2(f) Domestic Violence Act 2005

 [4] D. Veluswamy v. D. Patchaiammal,  10 SCC, 469, 475(2010)

[5] Report of Justice Malimath Committee on Reforms of Criminal Justice System, MINISTRY OF HOME AFFAIRS (August 21, 2003, 12:30 PM), http:// mha.nic.in/pdfs/criminal_justice_system.pdf, p.197

[6] Abhijit Bhikaseth Auti v. State Of Maharashtra and Others, 3 Cri.LJ, 889, 892(Bom.2009)

[7]Amit Anand Choudhary, Supreme Court Upholds Maintenance for Live-in Partners, THE TIMES OF INDIA (Sept 3,2016, 5:29 PM), http://timesofindia.indiatimes.com/india/Supreme-Court-upholds-maintenance-for-live- in-partners/articleshow/47169351.cms

[8] Madan Mohan Singh vs Rajni Kant,  9 SCC, 209(2010)

[9]J. Venkatesan, Amend Law to Protect Women and Children in Live-In Relationships: Court, THE HINDU, (Sept.3, 2016, 5:27 PM), http://www.thehindu.com/news/national/amend-law-to-protect-women-and-children- in-live in-relationships-court/article5402879.ece

 

AUTHOR

Rashmi Pandey