CAN A COPARCENER/CO-OWNER SELL HIS/HER SHARE IN A JOINTLY OWNED PROPERTY TO A THIRD PARTY? RIGHT OF PREEMPTION AGRICULTURE LAND VS RESIDENTIAL PROPERTY
Let us first see the provisions of the Transfer of Property Act 1882 and the Hindu Succession Act 1956. Section 22 of The Hindu Succession Act 1956 Section 22 of the Act is as under:- “22. Preferential right to acquire property in certain cases – (1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. (2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application. (3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred. Explanation.- In this section, “court” means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf.” OBITER Smt. Laxmi Debi v. Surendra Kumar Panda and Others by the High Court of Orissa. In this case the submission that Section 22 of the Act would not cover succession in respect of agricultural lands was rejected.It was observed and held that “It is clear that the Parliament had omitted the phrase “save as regards agricultural land” from item No. 5 of the Concurrent List in order to have a uniform personal law for Hindus throughout India, and accordingly, it necessitated the enlargement of Entry No. 5. We have no doubt, therefore, that in view of the change in law, the Act will apply to agricultural lands also, and the decision in AIR 1941 FC 72 (K) would no longer hold good.” The High Court of Judicature at Allahabad, in Smt. Prema Devi vs. Joint Director of Consolidation (Headquarter) at Gorakhpur Camp and Ors. held:- In List 2, Entry No. 18 is as follows:– “Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.” This entry which is in the exclusive jurisdiction of the State Legislature is in the widest term. All laws relating to land and land tenures are therefore, within the exclusive jurisdiction of the State Legislature. Even personal law can become applicable to land tenures […]
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LAW GOVERNING DIVORCE BY MUTUAL CONSENT AND THE CONSTITUTIONAL PROVISION
MARRIAGES ARE DECIDED IN HEAVEN BUT LIVED ON EARTH Introduction: Couples are so eager to get married but are not ready to accept duties and responsibilities. The problem starts from here. Marriage is the foundation of a healthy society. A fractured family gives a fractured and weak society. It gives an insecure future to the nation. Families spend lakhs and crores on the wedding with branded dresses, pre-wedding shoots, food, and ornaments but don’t focus on the spiritual and social aspects of marriage. So once the film of a wedding is over, couples enter the world of reality and find it difficult to manage their relationship with each other and with other family members. From divorce they give an insecure future to their kid if any, and to themselves. Their family members too. As laws in India are such people avoid staying together in fear of criminal prosecution, which is evidently misused in the majority of cases on advice to get divorce and alimony. As per data compiled by the National Crime Records Bureau (NCRB) in the report Crime in India 2020 about 5% of the cases under Section 498A were found to be false. The outcome is couples prefer to leave the country and settle abroad and seniors land in old age homes. These are serious dangers to society. So, should divorce by Mutual Consent be instant? Should six months cooling period be waived? If Yes, on what terms? If No, then why? The issue involved: A Constitution Bench of the Supreme Court will start hearing on 28th September, to consider the extent of its powers under Article 142 of the Constitution of India, 1950, to dissolve the marriage. The 5-Judge Bench headed by Justice S.K. Kaul and comprising Justices Sanjiv Khanna, AS Oka, Vikram Nath, and JK Maheshwari was of the opinion that the real issue is the exercise of power under Article 142 when there is an irretrievable breakdown of marriage, but one party is not consenting to divorce. Shilpa Shailesh vs Varun Sreenivasan The Constitution Bench reference originates from a Transfer petition, wherein pursuant to the settlement, the parties had sought appropriate order of the Court to dissolve their marriage, and the same was granted by the Apex Court on the following grounds – there has been an irretrievable breakdown of the marriage between the parties; the parties are consenting to divorce; requiring the parties to go to the jurisdictional family court to invoke the provisions of the Hindu Marriage Act, 1955 to seek a decree of divorce would be a lengthy process and that, the Family Courts in the country are already burdened with a huge volume of similar litigation. Dictum: Man is a social animal. He cannot live in isolation. To carry forward the human race a sacred institution is created by the name of marriage to have progeny. Who will continue the family tradition, language, dialect, culture, food habits, etcetera. In Hindus, marriage is a sacred institution and not contractual. It carries the sanctity of an institution namely marriage. What is important is to carry forward the family legacy too. Divorce was an […]
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