know about property act

Kuldeep sharma (Querist) 10 June 2016 This query is : Resolved
My grandmother was three sons. In which two sons got married but after some time one son was dead without having no child.but the due to some circumstances married son also married with his dead brother's wife also.now the elder boy has two wife and young one also married. Now how will be the property distribution. The man who was dead not having child.please sir give a suitable solution.

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Kuldeep sharma (Querist) 10 June 2016
y grandmother was three sons. In which two sons got married but after some time one son was dead without having no child.but the due to some circumstances married son also married with his dead brother's wife also.now the elder boy has two wife and young one also married. Now how will be the property distribution. The man who was dead not having child.please sir give a suitable solution.

N R Dash.. (Expert) 11 June 2016
How a person keeping two wives???

Consult with a local advocate to get matter sorted.

Guest (Expert) 11 June 2016
nothing is clear from your question. Either provide detailed query or consult a local lawyer in this regard.

Kumar Doab (Expert) 11 June 2016
If the deceased male was Hindu the his ClassI legal heirs are:

Mother, spouse, children.

if he had no children then his estate shall devolve equally upon Mother, spouse.

If his mother is also not alive then his spouse shall inherit 100%.

Rajendra K Goyal (Expert) 11 June 2016
The property of grandmother would be inherited by her sons and daughters.

If your grandmother has expired the property would be inherited by her sons and if son expired, share would be inherited by his widow and children from expired person.

P. Venu (Expert) 11 June 2016
The property would be equally distributed among the two sons (it appears from the query that there are no daughters). The widow of the late brother has no claim as she is already remarried.

Kumar Doab (Expert) 11 June 2016
Although the author could have drafted the query in much better way.

Still the query and moderation by experts has touched upon very imp points, and thread is interesting.

In the subject matter the property has devolved from Hindu Female ( Grandmother).

THE WIDOW ON REMARRIAGE DOES NOT LOOSE INHERITANCE.

>>> "held that the defendant-appellant having remarried ..............she has lost all her rights and interests in the property of her former husband ....."

14. Section 24 of the Hindu Succession Act, 1956, reads as follows:--

"Any heir who is related to an intestate as the widow of a pre-deceased son the widow of a pre-deceased son of a predeceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has remarried."

This section deals with one of the grounds for disqualification, namely, remarriage, but the disqualification is confined only to certain heirs. It is worthy of note that remarriage is not a disqualification in case of every female relative of the intestate. It is confined to the case of three female heirs mentioned in the Section, and who are entitled to succeed under the Act as widows or relatives of the intestate.

Madhya Pradesh High Court
Mantorabai vs Paretanbai And Anr. on 10 December, 1969

https://indiankanoon.org/doc/660502/

>>> WIDOW WHO REMARRIES HAS RIGHT TO DEAD HUSBAND’S ESTATE:

"provisions of the Hindu Succession Act, 1956 would prevail over the repealed Hindu Widows' Remarriage Act, 1856. There was no provision in the Hindu Succession Act, 1956 which was pari materia with section 2 of the Hindu Widows' Re-Marriage Act, 1856. The Court further observed the widow even after remarriage would qualify as Class I heir and the husband's kin would still be a Class II heir. Section 9 provides the order of succession among heirs and stipulates that among the heirs specified in the Schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs

In the light of the observations above, the Court concluded that a woman doesn't lose rights over her dead husband's properties - moveable and immoveable even if she remarries."

Bombay High Court
Sanjay Purshottam Patankar vs Smt. Prajakta Pramod Patil on 25 June, 2015

https://indiankanoon.org/doc/122967615/

>>> Supreme Court of India:

"The Kerala HC held that in the facts of the case, coupled with the provisions of the Hindu Succession Act, Bharathi was entitled to her share in the property.'

"The apex court, rejecting the appeal against the HC judgment, said, "The succession law brought about a sea change in Shastric Hindu Law. Hindu widows were brought on equal footing in matters of inheritance and succession along with the male heirs.""

"Section 14(1) stipulates that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, will be held by her as a full owner thereof,"

Supreme Court of India
Cherotte Sugathan (Died Through ... vs Cherotte Bharathi & Ors on 15 February, 2008

https://indiankanoon.org/doc/74808/

Kumar Doab (Expert) 11 June 2016
Moreover Sec;24 in Hindu Succession Act, 1956 has been omitted vide

THE HINDU SUCCESSION (AMENDMENT) ACT, 2005 # NO. 39 OF 2005

http://egazette.nic.in/WriteReadData/2005/E_45_2012_114.pdf

5 [ 24 Certain widows re-marrying may not inherit as widows. —[ Rep. by the Hindu Succession (Amendment) Act, 2005 (39 of 2005), sec. 5 (w.e.f. 9-9-2005) .]]

https://indiankanoon.org/doc/685111/

Kumar Doab (Expert) 11 June 2016
@ Author,

Why have asked this query?

How are you related with the matter?

Kumar Doab (Expert) 11 June 2016
It has been a custom to marry the widow in family to retain the property in family.

This has filmed in movie; 'Maili Chadar' an adaptation of Rajinder Singh Bedi's classic Urdu novel 'Ek Chadar Maili si'.

J K Agrawal (Expert) 12 June 2016
Well answered by MR Kumar Doab.

The widow does not looses her rights. The elder brother will enjoy double share. He should be allowed so as he has taken responsibility of entire life his brothers widow.

My be in law, it is wrong but in practice and in social system it is now a fair and even thankful job to marry a widow in same family.

Kumar Doab (Expert) 12 June 2016
It is interesting thread and moderation by experts shall make it enriching.

>>> The author has not described is there any such custom in his tribe that attained legal acceptance?

What exactly is aimed to achieve from such relationship?

The brother who married his Bhabhi is already married, and has a living wife!

It is bigamy for him.

He may not succeed to get the estate of his dead brother by marrying his dead brother's wife (Bhabhi).

It is polyandry for his dead brother's wife (Bhabhi). It is illegal.

Dead brother's wife (Bhabhi) has no children, as on date of marriage.

Any child from such and so called illicit relationship (bigamy/polyandry) shall although illegitimate, have share in biological father 's estate.

Thus it is loss of the brother who is marrying his BHABHI.

>>> Bigamy, polyandry— is illegal as per law.

Polyandry is published as a SPOKEN CUSTOM, prevalent in some tribes in upper Himalayas!

The point is, it remains illegal until accepted by law.

Central Government Act
Section 3(g) in The Hindu Marriage Act, 1955
(g) degrees of prohibited relationship two persons are said to be within the degrees of prohibited relationship
(iii) if one was the wife of the brother

https://indiankanoon.org/doc/1003029/

section 5 just lays down the requirements of a valid Hindu marriage but it does not lay down the effect if any of the conditions laid therein are not followed. This effect provided for in section 11 and 12 of the Act. Out of these two sections it is section 11 that deals with nullity of marriage.

Bigamy:

The first condition for valid Hindu marriage is that none of the parties to the marriage shall have a spouse living it the time of their marriage. If either of them has a spouse alive from an earlier marriage, their subsequent marriage is no marriage in the eyes of law. It is void ab initio and non est, i.e. non existent.

Section 16 of the Hindu Marriage Act 1955 confers legitimacy upon the children born out of void marriages. It provides as under:

Hence the clear effect of section 16 is that if a child is born out of a wedlock which is subsequently declared to be null and void, that child will not be considered illegitimate but he shall be considered legitimate despite the marriage being illegal from its inception. The section provides a cushion to the children of void marriages and prevents them from being bastardised.

>>> If it is to allure the dead brother's wife into marriage and somehow usurp the property then slew of litigation's may be staring at the family.

RAVI K GOUD (Expert) 12 June 2016
Expert Kumar Doab's explanation is convincing and excellent.

Dr J C Vashista (Expert) 13 June 2016
Very well explained in detail with case law by expert Mr Kumar Doab, I appreciate and nothing more to add.

Mr. Kumar Doab has made the query very interesting, educative and opened the doors for a legal debate on the issue(s) involved/ arising out of the query.

Kumar Doab (Expert) 13 June 2016
I post my heartfelt thanks to seniors and experts for their very kind and encouraging comments and to moderate the thread and making in enriching for all of us.

Kumar Doab (Expert) 13 June 2016
Constitution provides for protection of tribal indigenous communities and their customs through Articles 244, 244-A, 371-A, and the Fifth and Sixth Schedules.

Because the customary law ( purported to be prevailing customary law), recorded almost a century back by the British) in revenue related documents like Riwaj -I-Am (common tradition) or Wajib ul Arz denies daughters and wives the right to inherit property, and professes only males are allowed to inherit ancestral property and bars women from such rights. The brothers, male members/relatives, often ill treat their unmarried sisters after the death of the parents.

Then in certain regions, the law of primogeniture, which gives the right of inheritance only to the firstborn male child, deprived the rest of the male siblings of their legal right to property. In the absence of an heir, inheritance passed to collateral relatives — usually male, in order of seniority. ……………

Earlier, the security of women in tribal society was taken care of by a unique custom. The father-in-law pledged a part of the land and house to the daughter-in-law in writing .The paper was kept with the father of the bride. In case of a dispute with the husband, the bride would get the pledged share. Meanwhile, while this traditional custom that somewhat helped secure a woman’s future, the discriminatory custom that daughter or wives cannot inherit property continues unabated,
Polyandry was practiced in certain places/tribes like upper Himalayas.

The practice of polyandry by the major tribes too was a result of limited land and resources. Several brothers married a single woman to avoid division of land, which resulted in the single status of several women since they did not get married. ………..

While cases of polyandry are rare now, women continue to suffer from the discriminatory law that bars them from inheriting property…………….. It is the deserted, widowed and unmarried women who suffer the most as they have to live at the mercy of others……………………………

Picture changes when several women (that became aware and active) traveled to seat of governments presented a memorandum to the State Governor demanding that this tribal law be scrapped but nothing happened. The women planned to pursue the matter both at the State as well as Centre level and take their agitation to Delhi.

Indian courts recognize custom as law only if the custom is “ancient or immemorial” in origin; “reasonable in nature and continuous in use”, and “certain”.

Courts interpret “ancient or immemorial" to mean that for a custom to be binding. it “must derive its force from the fact that by long usage it has obtained force of law”.

The High Court’s rose to the discriminating practices and delivered trans-formative ruling giving land inheritance rights to tribal women and thus provided a cause to celebrate.
High Court judgment changes the legal status of tribal women. In one stroke the high court has thrashed polyandry, polygamy, bigamy…………………’Joridara’ system,...................

Baan Singh and Others Vs. Devi Ram and Others

http://164.100.138.228/casest/generatenew.php?path=data/judgment/2013old/&fname=RSA392002.pdf&smflag=N

2………………….They claimed that in accordance with the custom in ‘joridara’ system it is the joridar brothers who inherit the estate of the deceased and the estate is not succeeded according to the provisions of the Hindu Succession Act.

3. The learned trial Court held that the custom stood abrogated after coming into force the Hindu Succession Act, 1956 and since admittedly the so called marriage with Dharmi had taken place after 1969, there could be no valid polyandrous marriage’.

6. This appeal was admitted on the following question of law: “Whether Mohi Ram, deceased constituted ‘Joridara” with Ghassi Ram, Telu Ram and on the death of Mohi Ram, his property will be inherited by whom?”

8. To understand the question, it would be appropriate to refer to the ‘joridara’ system. This custom was a mixture of both polygamy and polyandry. Under this Joridari system the eldest brother amongst the brothers was the pivot and the woman who was brought into the house in a marriage ceremony became the wife of all the brothers who joined him or associated with him.

9…………………local customs governed the field and the ordinary Mitakshara School of Law did not govern inheritance or succession between the parties.

1. This Court has dealt in detail with the.............

Joridari system in Partap Singh vs. Guman Singh and another, Latest HLJ 2010 (HP) 857,.............

and it is not necessary to go into the entire concept of Joridari system. In the aforesaid case, this Court clearly held that after the coming into force the Hindu Succession Act, 1956, by virtue of Section 4 of the Act, any text, rule or interpretation of Hindu law or custom or usage being part of the law immediately before the commencement of the Act shall cease to have effect in respect of the matters governed by the Act. It was clearly held that after the year 1956 succession amongst Hindus shall be governed by the Hindu Succession Act and not by custom.

N R Dash.. (Expert) 13 June 2016
@Kumar Doab appreciate your efforts.

P. Venu (Expert) 15 June 2016
Thanks, Mr.Kumar Doab and Mr. J.K Agarwal for correcting me.

Kumar Doab (Expert) 16 June 2016
Respected Shri P. Venu,

Sir,

You are a thorough gentleman and I am admirer of your wisdom.

Moderation by you in many threads have made the threads enriching.

With Regards

KumarDoab

Kumar Doab (Expert) 16 June 2016
Shri N.R.Dash,

Sir,

Many thanks for your motivation.

With Regards

KumarDoab

Kumar Doab (Expert) 16 June 2016
Dr. J.C Vashista,

Sir,

My heartfelt thanks for your motivation.

With Regards

KumarDoab

know about property act

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