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seemabhatnagar · 10 months

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The son and the daughter are equally entitled to inherit a share of the property by birth as coparceners.

Yagnaseni Patel v. The GM Mahanadi Coalfields Ltd. & others

WP No. 28534/2020 before Hon’ble Orissa High Court

U/A 226 & 227 of Constitution of India

Writ Petition Allowed on 22.06.2023

By Hon’ble Mr. Justice Dr. B R Sarangi J & Hon’ble Mr. Justice M S Raman J

Background

This is a case where daughters claim equal share in the property of their late father. After the death of the father petitioner’s 03 brothers got property mutated in their name in the Revenue Record. Petitioner and her 02 other sister filed Mutation Appeal before Sub Collector, Sundargarh. Sub-Collector directed Tehsildar to record the name of 03 sisters in the Record of Rights (RoR). Name was recorded in RoR along with their 03 brothers. Daughter’s than claimed equal share in the property before Claim Commission being daughter of the Coparcener are entitled to get equal share as that of her brothers irrespective of the date of death of her father. Brothers disputed on the basis of the Judgment of the Supreme Court namely Prakash and others v. Phulabati and others & Mangammal @ Thulasi and another v. T.B. Raju and others. In these cases, it was held by the SC that daughters are not entitled to get the benefit being not the co-sharer. Claim Commission decided the matter against the petitioner on 04.01.2020.

Contention of the Petitioner

Judgment, basing upon which the Claims Commission decided the matter, had been referred to the Larger Bench and the Larger Bench decided the same in the case of Vineeta Sharma v. Rakesh Sharma and others, 2020 (II) OLR (SC) 569, which was in favor of the petitioner.

Being daughter of the Late Kulamani Patel stand on the same footing as are the sons.

In view of the decision of the larger Bench in the case of Vineeta Sharma v. Rakesh Sharma and others, the decision of the Claim Commission is not sustainable and it be quashed.

Contention of the Respondent’s

Since the parties (Petitioner Daughter) approached the Claims Commission for adjudication of the matter and the same was decided on the basis of the law applicable at the relevant point of time. Wherefore, the present Writ Petition be dismissed.

Writ Court exercising a limited supervisory jurisdiction constitutionally vested under Article 227 should abhor to undertake a deeper examination in such matters.

Hindu Law & Amendment in Hindu Law (2005)

In Hindu Law Succession of property in a Hindu Undivided Family is governed by two schools of law 1. Mitakshara 2. Dayabhaga. Mitakshara entitles a son to a right equal to his father in the joint family property by birth.

All the male descendants of a Hindu in the male line up to the fourth degree of generation are his sons. The adopted child also gets a right equal to the right of his adoptive father in the joint family property from the date of adoption. The daughter is not given a right by birth in the joint family property.

The Parliament, being inspired by the amendments in four States namely Andhra Pradesh, Tamil Nadu, Maharashtra & Karnataka, passed The Hindu Succession (Amendment) Act, 2005 for the whole of India.

The amendment is that even in a joint family governed by the Mitakshara law the daughter of a coparcener is made as good a coparcener as a son. She has the same rights in the coparcenary property as she would have had if she had been a son. She has a right to agitate in respect of her share in the joint family property.

Decision of Larger Bench of the Supreme Court in re Vineeta Sharma v. Rakesh Sharma and others.

The finding of the apex Court (Prakash and others v. Phulabati and others & Mangammal @ Thulasi and another v. T.B. Raju) that daughters are not entitled to get the benefit of equal share being co-sharers in the ancestral property, no more remains res integra in view of the Larger Bench judgment of the apex Court in the case of Vineeta Sharma v. Rakesh Sharma and others.

In the case of Vineeta Sharma, Section 6(1) of the Hindu Succession (Amendment) Act, 2005 was under consideration and a question was framed “does the Hindu Succession (Amendment) Act, 2005, which gave equal right to daughters in ancestral property, have a retrospective effect”.

The Apex Court, answered the same in affirmative, held that daughter shall remain as coparcener (one who shares equally with others in inheritance of an undivided joint family property) throughout life, regardless of the question as to whether her father was alive when the law was amended in 2005 or not

Sons and daughters of a coparcener become coparceners by virtue of birth.

Observation of the Orissa High Court

In view of the decision dt. 11.08.2020 of the Apex Court in Vineeta Sharma v. Rakesh Sharma and others., Claims Commission has committed error apparent on the face of the record by passing the order impugned denying benefit to the daughter.

The earlier judgement of the Supreme Court namely Prakash and others v. Phulabati and others & Mangammal @ Thulasi and another v. T.B. Raju has no effect in view of the subsequent decision of the Larger Bench.

The daughter has a right to get the property of her father from the date the Amendment Act came into force.

Decision

The Writ Petition was allowed and the order dated 04.01.2020 passed by Claims is not sustainable in the eye of law and was quashed. However, the matter was remitted back to the Claims Commission for re-adjudication.

Seema Bhatnagar

#HinduSuccessionAct(Amended2005)#hinduundividedfamily #mitaksharaschooloflaw #dayabhagaschooloflaw #coparcener #rightbybirth #supremecourtofindia #orissahighcourt #claimcommission #recordofrights #mutation #mutationappeal #writpetition #inheritance

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EFFECT OF INSOLVENT PARTNER IF PARTNERSHIP FIRM DISSILVED. #Garner v Murray, The Solicitor’s Journal 21 November 1903, Vol. 48, P. 51 The English case- Garner vs. Murray is one of the most revered case in the history of partnership businesses and even today this case has the great importance. This decision given by Mr. Justice Joyee is still used in the present days as a rule to deal with…

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The verdict set aside a 1998 judgment in which a five-member Constitution bench had upheld the immunity for lawmakers in cases where MPs or MLAs take bribes for a speech or a vote in the House.

Bribery, the court said, is not protected by parliamentary privileges and the interpretation of the 1998 verdict is contrary to Articles 105 and 194 of the Constitution. These two Articles provide elected representatives legal immunity from prosecution to enable them to work without fear.

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seemabhatnagar · 9 months

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No right in an organized society can be absolute

No religion prescribes that any prayer should be performed by disturbing the peace of others nor does it preach that they should be through noise amplifiers or beating of drums - Supreme court of India

Miss Shagufta Sulaiman v. The State of West Bengal & Others

WPA (P) 369/2022 before Hon’ble Calcutta High Court

Heard by Hon’ble Mr. Chief Justice T S Sivagnanm J & Hon’ble Mr. Justice Hiranmay Bhattacharyya J

WP disposed of on 27.07.2023 with direction to the State Pollution Control Board and the State

Ahead of Muharram on the Public Interest Litigation filed by Shagufta Sulaiman before Hon’ble Calcutta High Court, the Division bench of Hon’ble Mr. Chief Justice TS Sivagnanam & Hon’ble Mr. Justice Hiranmay Bhattacharyya hereon July 27,2023 directed West Bengal Pollution Control Board to immediately issue a public notice giving wide publicity that the noise level cannot exceed the permissible decibel, and also make it clear that any violation thereof would invite penal action under the provisions of the pollution control laws.

The Bench also directed the State, if feasible, can also identify the groups, which can be permitted to carry on beating of drums within the permissible noise level. The period for beating of drums shall also be regulated as the mourning ritual is to be performed on 29th July, 2023 and within the short time.

There will be a direction to the respondent/police to immediately issue public notice regulating the timing for beating of drums.

Background

The PIL was filed by the petitioner on account of continuous beating of drums by a group of persons, throughout the day and night on the alleged ground that they are performing the mourning ritual on occasion of Muharram. The contention of the petitioner is when there is a ban for Azan by using loud speakers as that lasts 5 minutes only, which is certainly a religious matter but the non - stopping of beating of drums with no restriction of intensity of the sound is illegal. The noise pollution is a serious threat to public health and welfare. There are school going children. Many of them have to take their examination. There are senior citizen people, who are sick and ailing and all of them have been affected.

Seema Bhatnagar

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