CAN WE TRANSFER A FLAT IN A HOUSING SOCIETY WITHOUT OBTAINING A PROBATE? IF YES HOW?
A person generates wealth for his survival, comfort and luxury. He earns wealth for growth of his family and children. When becomes old same children start talking of inheritance of his wealth while he is living. There are various provisions of law to bequeath property : a. after death of a person, which is WILL or Vasiyat. When you make a WILL your inheritance is governed by Indian Succession Act 1925. This is very common practice and people always make WILL during their lifetime. This WILL or Vasiyat operates or say becomes live after death of make of WILL. This is where entire drawback or lacuna lies. Court even permits registered WILL in a way rewrites last wish of the deceased. Is it correct to do that? Once challenge to the WILL is permitted the Probate application is converted into Suit. Which takes decades to come up for hearing. Resultant the parties to avoid litigation and waste of time settle the claim in most of the matters. The question arises is whether this was the last wish of the deceased? Answer is No. But it happens. b. Next is inheritance governed by personal law. i. For Hindus its Hindu Succession Act 1956. There are two school of thoughts Dayabhaga which is prevalent in West Bengal where son gets inheritance in fathers property only on death of the father. While in rest of India Mitakshara School of Law is followed. In this a child in the womb gets coparcenary rights in the family property. c. Hindu WILL requires to be probated. ii. Islamic Law 1. The Holy Quran 2. The Sunna – that is, the practice of the Prophet 3. The Ijma – that is, the consensus of the learned men of the community on what should be the decision on a particular point 4. The Qiya – that is, an analogical deduction of what is right and just in accordance with the good principles laid down by God. Muslim law recognizes two types of heirs, Sharers and Residuary. Sharers are the ones who are entitled to a certain share in the deceased’s property and Residuary would take up the share in the property that is left over after the sharers have taken their part. A will executed by a Muslim testator is not subject to the compulsory probate requirements under law. This would be a subject matter of Mohammedan personal law (which differs in its application among Shias and Sunnis). However they do file for probate for transfer of plot of land and other properties in Mumbai. d. In case of a Parsi section 213 (2) of the Indian Succession Act 1925 states that in case of a Parsi dying after the commencement of the Act, a probate is necessary if the WILL in question is made or the property bequeathed under the WILL is situated within the “ordinary original civil jurisdiction” of the Bombay high court. e. For WILL made by a Christian probate is not mandatory under Indian Succession Act 1956. COMMENTS: To obtain probate it takes long-time. Now a days 3-4 years even if not contested. So, […]
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RIGHTS OF RESERVATIONS AS PER POPULATION WHETHER CONSTITUTIONAL PROPOSITION?
During the last 40 years in India, politics has been divided into regional and mainstream parties. The mainstream party was the only one dominated by a family. Under its shelter, every state advanced state-level family powerhouse. They are still inter-alia in Uttar Pradesh, Bihar, Rajasthan, Jammu and Kashmir, West Bengal, and Telangana. However, the said respective families would oppose state elections and partner in the central government. This continued for decades. Slowly people realised that there is a change in voting tendency. Well, let’s migrate to the topic under discussion to the current situation as the country will go for Lok Sabha elections in 2024. The small local regional parties referred to in para hereinabove along with the mainstream party formed an alliance. They named it as INDI Alliance. This INDI Alliance has introduced a new idea to fetch more votes. They have proposed that rights on the national resources will be as per the population of a caste. A caste having a larger population should get more facilities. During the tenure of UPA erstwhile Prime Minister said that it is in particular Muslims who has first right to the resources of this country. Please see the link https://youtube.com/shorts/UAdiboSk-vk?si=P1bjy7UvohWHj-CE PARTITION India has seen division in 1947. A bloody partition based on religion. Millions. Many shed lives and were martyred and many children lost while crossing the border. Nehru became the first PM of independent Bharat. INDIA WAS BORN We have a constitution in force. Our constitution gives equal opportunity to all. Let us see what it provides: Article 13. Laws inconsistent with or in derogation of the fundamental rights. (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void Article 14. guarantees Equality before the law. —The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 15. Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth, or any of them, be subject to any disability, liability, restriction, or condition with regard to— a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. (3) Nothing in this article shall prevent the State from making any special provision for women and children. [(4) Nothing in this article or in clause (2) of […]
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