REFORMATIVE MUSINGS

DAUHTERS, ENTITLED TO FAMILY PROPERTY: BOMBAY HIGH COURT

A full Bench of the Bombay High Court delivered a crucial judgment on women’s rights over ancestral property that daughters alive on September 9, 2005, would be entitled to equal rights in ancestral property. The Hindu Succession Act of 1956 did not give equal right to ancestral property to daughters. This disparity was removed by an amendment to Section 6 of the Act in September 2005.

But a Division Bench of the Bombay High Court held previously that only those daughters born after September 9, 2005, will be entitled to equal rights in ancestral property. Later, a single judge of the Bombay High Court contested this view and held that even those daughters who were born before September 2005 will have equal rights. The matter was then referred to a full Bench of the court.

The full Bench comprising Chief Justice Mohit Shah, M.S. Sanklecha and M.S. Sonak held that “Section 6 of Hindu Succession Act, 1956 as amended by the Amendment Act of 2005 is retroactive (taking effect from a date in the past) in operation.”

Denying that the reference of Supreme Court judgments given by the respondents held an opposite view, the judges observed: “The principle laid down by the Supreme Court in Sheeladevi’s case, therefore, does not militate against the view taken by us that the Amendment Act of 2005 applies to a daughter of coparcener*, who (the daughter) is born before 9th September 2005 and alive on 9th   September 2005, on which date the Amendment Act of 2005 came into force. Of course, there is no dispute about the entitlement of daughter born on or after 9th September 2005.”

“Therefore, it is imperative that the daughter who seeks to exercise such a right must herself be alive at the time when the Amendment Act, 2005 was brought into force. It would not matter whether the daughter concerned is born before 1956 or after 1956. This is for the simple reason that the Hindu Succession Act 1956 when it came into force applied to all Hindus in the country irrespective of their date of birth. The date of birth was not a criterion for application of the Principal Act. The only requirement is that when the Act is being sought to be applied, the person concerned must be in existence/ living,” the court said in its order.

Courtesy: The Hindu – 15th August 2014
*Coparcener is a person who shares equally with others in the inheritance of an undivided estate or in the right to it.


ONLY PARENTS INCOME BE CONSIDERED FOR DECIDING CREAMY LAYER: SUPREME COURT

The Supreme Court has held that an individual candidate's income was not required to be clubbed with the income of the parents for the purpose of determining "creamy layer" to exclude a person of backward class from the benefits of reservation. 

Referring to the Centre's Office Memorandum of 1993 on the issue and judgments of the apex court, a bench comprising Justices J S Khehar and Arun Mishra set aside the decision of the Punjab and Haryana High Court which took consideration of the income of the candidate, a chartered accountant, to declare that the family belonged to the "creamy layer".

"The aforesaid determination was rendered by reading down the policy instructions issued by the State Government, on the basis whereof, the backwardness of a candidate had to be adjudged. The aforesaid policy instructions were read down, to include the income of the person concerned, along with the income of the parents of the person, contemplated by the policy instructions," the bench said.

"It is not possible for us to accept, that the individual's own income could have been taken into consideration," the bench said after analysing the Centre's office memorandum of September 8, 1993 issued by the Ministry of Personnel, Public Grievances & Pension (Department of Personnel & Training).  The apex court noted that even with reference to category IV, which includes professional's (like CA), the income of the professional, has not been included.

"Thus viewed, we are satisfied, that on the plain reading of category VI of the Office Memorandum of September 8, 1993, that it was not the income of the individual concerned, but that of his parents, that would determine whether he would fall within the creamy layer or not," the bench said while allowing the appeal of a candidate filed.

 Courtesy: The Times of India, 13th October 2014
For calculating  the income of the parents to categorise as creamy layer, their income from the salary and  the agricultural activity, if any  should not be reckoned – Editor

Comments are closed.