Shruti Desai

#HUF

    Shruti Desai > Blogs > #HUF

MEDIATION ACT 2023- PATH TOWARDS PEACE

November 8, 2023

MEDIATION ACT 2023- PATH TOWARDS PEACE PART- I- MEDIATION Chapter –I What is Mediation? History Mediation is not a new concept for Indians and on the contrary, the same is imbibed in our culture from its inception. It has roots in our culture since ancient times of Buddha, Chanakya, Yagnavlkya and  Mahabharat. Duryodhan was adamant and said he would not give an inch from Hastinapur but also demanded Indraprastha, (Today’s NCR) area. Krishna was the first mediator on earth who tried to convince Duryodhan to give up his claim on Indraprastha and keep Hastinapur. But he refused and the consequence was War. In ancient days, any dispute or differences amongst parties were resolved by Mukhiyas, Sarpanch or Panchayats. The same was at the Gram Panchayat Level, whose words and orders were final. People had full respect and faith and had never endeavoured to oppose the same. Indian tradition is marked by joint Hindu Families, where the words sentiments, and, emotions, of all the members of the family are respected and all the disputes and differences of opinion are settled by the Karta of the Family or the eldest person in the Family, so that the family remains united. This was in general the social structure of India and Courts were unknown to our culture. Even today Khap Panchayat makes decisions, and it is final and binding. ( See Sec 3(b) ) By invasion and ruling of Britishers, this system was hampered to some extent and people tended to move to Courts by referring disputes to the Courts for redressal of their disputes in terms of Judgment and Decree, during the British Regime. After partition and enforcement of the Constitution of India, disputes in Courts started piling up and resulted in considerable delays in delivering justice and resolving the dispute. Torts in India even today are not much enforced, however, there are Consumer Forums whose judgment can be executed as a Decree of Civil Court. It is a natural phenomenon that every human being when he is lost in a way goes back to his own origin and again with the same concept, but with improved methods Indian society is now prepared to go back to resolve the dispute by way of mediation in the new name and style of Alternative Dispute Resolution. Unlike Arbitration, mediation is non-judgmental and non-binding. THE PARLIAMENT HAS NOW PASSED THE MEDIATION ACT 2023 Let us see and jump to the current scenario from the days of Mahabharat. APPLICATION: The Act applies to the mediation when it is conducted in India, and — all or both parties habitually reside in case of a company or LL.P or a Firm is incorporated in or has their place of business in India, there is a mediation agreement which provides that any dispute shall be resolved in accordance with the provisions of this Act; or there is an international mediation; or wherein one of the parties to the dispute is the Central Government or a State Government or agencies, public bodies, corporations, and local bodies, including entities controlled or owned by such Government and where the matter pertains to […]

Read more

CAN HUF CO-PARCENER GIFT HIS UNDIVIDED INTEREST IN THE PROPERTY TO ANOTHER CO-PARCENER?

November 14, 2020

Let us first understand the Hindu Law to discuss and answer this question. 30. Testamentary succession. —[***] Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so[disposed of by him or by her], in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus. Explanation.— The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this[section.] Hindus have two schools of thought Dayabhaga and Mitakshara. Dayabhaga is practiced in West Bengal while Mitakshara is followed in rest of India. Coparcener: The evolution of law: The term coparcener under the Mitakshara system of jurisprudence has a distinct meaning. Its essential characteristic is that the coparcener possesses a right to the family property by birth, the existence of a mere right to partition of family property, cannot be regarded as the touch-stone of coparcenership. Only a male born or adopted into the family can under the ordinary Hindu law, be a coparcener. the right of the widow of a coparcener under the Act is derived under the statute and not by any fiction so as to enable her to take under the general law. So far as alienation of coparcenary property are concerned, it appears that such alienation were permissible in eighteenth century. Indeed, in Suraj Bunsi Koer v. Sheo Proshad Singh and Ors., ILR 6 IA 88 the Privy Council observed as follows:- ” it has been settled law in the presidency of Madras that one coparcener may dispose of ancestral undivided estate, even by contract and conveyance, to the extent of his own share; and a fortiori that such share may be seized and sold in execution for his separate debt.” Thus, the Privy Council also noticed that in Madras alienations by gift were recognized. Such alienations were held by their Lordships to be inconsistent with the strict theory of joint and undivided Hindu family. It is, however, a settled law that a coparcener may alienate his undivided interest in the coparcenary property for a valuable consideration even without the consent of other coparceners. As has been observed by the Privy Council in Suraj Bunsi Koer’s case (supra), such recognition of alienations of coparcenary property for valuable considerations has been one of gradual growth rounded upon the equity which the purchaser for value has to be allowed to stand in his vendor’s shoes and to work out his rights by means of a partition. Although at the time of the judgment of the Privy Council in Suraj Bunsi Koer’s case, the Madras Courts recognised alienations by gift, as time passed the courts of law declared alienations by gift of undivided interest […]

Read more