Author: admin

ISSUE:

Whether the definition of “person” in the Gujarat Agricultural Lands Ceiling Act, 1960, includes a body of individuals/association of persons?

Whether co-ownership, per se, is an “association of persons/body of individuals” and therefore constitutes a “person”?

Whether the ten purchasers, who became co-owners of the land, together constitute a “body of individuals/association of persons” and therefore a “person” within the meaning of that expression in the Ceiling Act?

Whether the partition dated 30-12-1971 among the co-owners is “deemed to have been made in anticipation to defeat the object of Gujarat Agricultural Lands Ceiling (Amendment) Act, 1972” under Section 8(1) of the Ceiling Act; and if so what is the effect of failure to make an application under sub-section (2) of Section 8 of the Ceiling Act?

What would be the position if some of the co-owners were non-agriculturists at the time of purchase of the lands? Whether the Mamlatdar can examine this issue when considering the question of surplus land under the Ceiling Act?

RULE:

Both definitions of the word “person”, in the General Clauses Act and the Ceiling Act, are inclusive definitions. The inclusive definition of “person” in the General Clauses Act applies to all Gujarat Acts unless there is anything repugnant in the subject or the context. The inclusive definition of “person” in Section 2(21) of the Ceiling Act, does not indicate anything repugnant to the definition of “person” in the General Clauses Act, but merely adds “joint family” to the existing definition.

When different persons buy undivided shares in a plot of land and engage a common developer to construct an apartment building, with individual ownership in regard to respective apartment and joint ownership of common areas, the co-owners of the plot of land, do not become an “association of persons/body of individuals”, in the absence of a deeming provision in a statute or an agreement.

Sub-section (1) of Section 8 makes it clear that where any person has partitioned any land held by him notwithstanding anything contained in any law, such partition shall be deemed to have been made in anticipation in order to defeat the object of the said Amendment Act unless it is proved to the contrary. Sub-section (2) provides how the affected person may prove the contrary by filing an application to the Collector seeking a declaration to that effect.

ISSUE:

Whether the Section 6 of Hindu Succession Act, giving women equal coparcenary rights retrospective and subsequently is appellant’s demand for coparcenary in her father’s ancestral property justified?

RULE:

Section 6 of The Hindu Succession Act, gives the right to a daughter of a coparcener “on and from” the commencement of the Act. The amended provision under section 6 of the act came into effect from 9 September, 2005. On and from that date, the daughter of a coparcener would become a coparcener in her own right just as a son would be by virtue of her birth and she would have the same rights and liabilities as that of a son. The devolution of her, interest should, therefore, be on and from 9 September, 2005.

No interest can devolve in a coparcenary property except on the death of the coparcener. In this case there has been no devolution of interest because no has been deceased. The share in the coparcenary, therefore, cannot “devolve” upon anyone. The succession, therefore, has not yet, opened.

ISSUE:

Whether an adopted son could claim a share in joint family property that had already devolved on a sole surviving co- parcener before a adoption?

RULE:

Section 12(c) of the Hindu Adoptions and Maintenance Act, 1956- This provision does not apply to joint family property, as it continues to retain its nature even when held by a sole surviving coparcener.

Mitakshara Hindu Law on Joint Family Property- The joint family property does not lose its character even if it passes into the hands of a sole surviving coparcener. If a son is born or adopted, he automatically becomes a co- parcener and gets a share in the property.

Adoption creates a fresh coparcenary right for the adopted son, giving him a claim over joint family property. However, alienations (sale, mortgage, gift) made before adoption remain valid and cannot be challenged by the adopted son. Adoption does not divest an estate vested before adoption, but it does create a new coparcenary right, allowing the adopted son to claim his share in joint family property.

ISSUE:

Whether the eldest daughter of the coparceners of a Hindu Undivided household eligible for the title of Karta ?

RULE:

If the eldest member of the HUF is a woman, her gender cannot be a disqualification from being its Karta since this disqualification has been removed by the amendment brought about under Section 6 of Hindu Succession Act in the year 2005.

The Karta of a HUF is always a senior most member of the HUF and one gender is not given a priority over the other.

A daughter, post the amendment brought under Section 6 of the Hindu Succession Act now stands on an equal footing with a son of a coparcener, she is now invested with all the rights of a coparcener, they can also assume leadership positions within the HUF.

ISSUE:

Whether the provisions of the limitations act are inapplicable to an application drawing up final decree for partition?

RULE:

Once a preliminary decree in a partition suit is passed, it is the court's responsibility to ensure that the final decree proceedings commence without unnecessary delay.

An application for the drawing up of a final decree in a partition suit is not subject to any specific limitation period. The rationale is that the preliminary decree does not dispose of the suit entirely; the suit remains pending until a final decree is passed.

ISSUE:

Whether “the Guru Granth Sahib” could be treated as a juristic person capable of holding a property?

RULE:

Where there is any endowment for a charitable purpose it can create institutions like a church, hospital, gurdwara etc. The entrustment of an endowed fund for a purpose can only be used by the person so entrusted for that purpose inasmuch as he receives it for that purpose alone in trust. When the donor endows for an idol or for a mosque or for any institution, it necessitates the creation of a juristic person. The endowment gains the status of a juristic person when it is recognised by the society as such.

Under the Sikh Gurdwara Act, 1925 this Court held that the central body of worship in a gurdwara is Guru Granth Sahib, the holy book, which is a juristic entity.

The Gurudwara and the Guru Granth Sahib are not two separate juristic persons, they are one integrated whole.

ISSUE:

Whether the house was joint family property under Mitakshara law ?

Whether the sale by Badri Prasad was valid in the absence of legal necessity ?

Whether the plaintiffs, as coparceners, had a right to challenge the sale ?

RULE:

Under Mitakshara law (as applicable in Uttar Pradesh), a coparcener cannot alienate joint family property without the consent of other coparceners unless:
1. The sale is for legal necessity (e.g., family expenses, debts, or emergencies).
2. The sale is for the benefit of the estate (e.g., improving or preserving family property).
3. The sale is for payment of antecedent debts (debts incurred before the sale).

ISSUE:

Whether the share of the widow and the unmarried daughter should be excluded from estate duty calculation?

Whether the property received by Manjunatha Gowda was by survivorship or by partition?

RULE:

Section 8(1)(d) of the Hindu Law Women’s Rights Act, 1933 (Mysore Act VIII of 1933). The rule applied here establishes that once a property is obtained through partition, it ceases to be joint family property and becomes individual property, thereby subjecting the full estate to taxation.

Co-parcenary is a narrower body than a joint family. It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees. Thus while a son, a grandson or a great-grandson is a coparcener with the holder of the property, the great- great-grandson cannot be co-parcenar with him, because he is removed by more than three degrees from the holder.

The word `survivor' usually applies to the longest lives of two or more partners or trustees, and has been applied in some cases to the longest liver or joint tenants and legatees, and to others having a joint interest in any property.