February 21

Right of a female Hindu in undivided Hindu Family Property, scenario after 2005.

I would be the covering the main issue and the connected issue concerning the right of a female Hindu, after the amendment of 2005. Prior to the amendment of 2005 the female Hindu was not entitled to have a part in the ancestral property and was not a member of coparcenary. From July 2005 the new Act has come into force and the daughter is allotted the same share as is allotted to a son. The daughter shall have a right to claim partition in the joint family properties as well as the right to claim right of partition in the dwelling house of the joint family and she shall also have a right to claim partition during the lifetime of her father.

The provision: Section 6 of Hindu Sucession ACT,1956

6. Devolution of interest in coparcenary property. —(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

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

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

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,—

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall affect—

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation. —For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005*.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation. —For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.]

Comman Issues:

(1) What is the right of the daughter of a co-parcener in a Joint Hindu Family governed by Mitakshara Law in co-parcenary property by virtue of the amendment?

The daughter of a co-parcener will have all rights with respect to the property which a male co-parcenar had before the amendment, the rights here include the right to be a member of coparcenary with all rights and liabilities attached in “her own right”. In comman parlance the consequence of the amendment is that even a daughter can get a share in partition.

(2) Whether a married daughter can inherit the property in respect of which partition has not yet taken place?

Yes a married daughter would also get a share on partition if the partition of the Hindu Family property has not already taken place.

(3) Whether Section 6 is not applicable to partitions already affected?

No, the section will not invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004

Law students and lawyers may refer to Pushpalatha N.V. W/o Nemraj Vs. V. Padma Widow of Vasantha Kumar D.N., Asha N.V. W/o Shantharaj, N.V. Tejkumar and N.V. Bahubali (Appi) ;AIR2010Kant124, 2010(2)KCCR1249 for a detailed analysis of the amendment.

The author is a pracisting lawyer in Delhi High court. She can be contacted at lawyer.soniasaini@gmail.com

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February 20

What is an FIR ? what remedies do i have if the police does not register my FIR?

An FIR means a FIRST INFORMATION REPORT.It is generally a document in which the information about the commission of a crime is recorded. The Police receive and record the information at the first point. Therefore, it is known as First Information Report.

The information is generally provided by the aggrieved person, but other person can also provide the information and file an F.I.R. on behalf of the aggrieved person. There is no restriction of filing an F.I.R. in writing only, but an oral message can also work in this process.

Another option is of sending message through telephone. There are separate areas allotted to police stations, under which the respective cases are handled by the police. So an F.I.R. can be filed in that police station, under whose jurisdiction the crime has taken place. Jurisdiction refers to the geographical area under which the crime took place and therefore, the police station of that place will be the place where the FIR will need to be filed. The FIR should be filed with the officer-in-charge of the police station. In case of his unavailability, the Assistant Sub Inspector can also file the F.I.R.

Indian Laws: How important is an F.I.R.?

Unless and until, the aggrieved person or other person on his behalf informs about the occurrence of a crime or an offence to the police, no action is possible. It is the first step for getting justice through the police. The F.I.R. is the primary basis on which the information reaches the police and only after registration of the F.I.R., an investigation can be started by the police.

Indian Laws: Who can file an F.I.R.?

Any person who is aware about the offence can file an F.I.R. It is not compulsory that he should be an aggrieved person. Even a police officer can file an F.I.R., if he comes to know about any offence. The F.I.R. can be filed by various persons like:

The aggrieved person.
The person who is aware about the facts of the crime.
The person who has seen the commitment of offence.

What do i do if the police does not register an FIR: The answer to this lies in Section 154(3) of Crpc which is :

” Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer Subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.”

What do i do if no FIR is registered even after approaching the superintendent of police :

Engage a lawyer and tell him to file an application under Section 156(3)

The author is a practicing lawyer at Delhi High Court. She can be contacted at lawyer.soniasaini@gmail.com

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