Tag Archives: Joint Family Property

Provisions Under Maintenance of Parents and Senior Citizens Act and Domestic Violence Act

Some broad guidelines as set out below, can be followed by Courts in order to strike a balance between the PSC Act and the DV Act:

1. The court/tribunal has to first ascertain the nature of the relationship between the parties and the son’s/daughter’s family.

2. If the case involves eviction of a daughter in law, the court has to also ascertain whether the daughter-in-law was living as part of a joint family.

3. If the relationship is acrimonious, then the parents ought to be permitted to seek eviction of the son/daughter-in-law or daughter/son-in-law from their premises. In such circumstances, the obligation of the husband to maintain the wife would continue in terms of the principles under the DV Act.

4. If the relationship between the parents and the son are peaceful or if the parents are seen colluding with their son, then, an obligation to maintain and to provide for the shelter for the daughter-in-law would remain both upon the in-laws and the husband especially if they were living as part of a joint family. In such a situation, while parents would be entitled to seek eviction of the daughter-in-law from their property, an alternative reasonable accommodation would have to be provided to her.

5. In case the son or his family is ill-treating the parents then the parents would be entitled to seek unconditional eviction from their property so that they can live a peaceful life and also put the property to use for their generating income and for their own expenses for daily living.

6. If the son has abandoned both the parents and his own wife/children, then if the son’s family was living as part of a joint family prior to the breakdown of relationships, the parents would be entitled to seek possession from their daughter-in-law, however, for a reasonable period they would have to provide some shelter to the daughter-in-law during which time she is able to seek her remedies against her husband. Vinay Varma v. Kanika Pasricha, (2020) 1 DMC 180.

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Domestic Relationship – At Any Point of Time

The problem arises with the meaning of phrase “at any point of time”. That does not mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship. At any point of time, indicates that the aggrieved person has been continuously living in the shared household as a matter of right, but if for some reason if the aggrieved person has to leave the house temporarily and when she returns she is not allowed to enjoy her right to live in the property. Where a family member leaves the shared household to establish his or her own household, he or she cannot claim to have a right to move an application under Section 12 of the DV Act on the basis of domestic relationship. This proposition of law came up before the Delhi High Court in the case of Vijay Verma v. State (NCT) of Delhi reported in (2010) 172 DLT 660, wherein it has been observed as under:

6. A perusal of this provision makes it clear that domestic relationship arisen in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. This living together can be either soon before filing of petition or ‘at any point of time’. The problem arises with the meaning of phrase “at any point of time”. Does that mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship? I consider that “at any point of time” under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, “at any point of time” cannot be defined as “at any point of time in the past” whether the right to live survives or not. For example if there is a joint family where father has several sons with daughters-in-law living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of father-in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married and establishes her own household with her husband. Such son, daughter, daughter-in-law, son-in-law, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase ‘at any point of time’, say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. However, where the living together has been given up and a separate household is established and belongings are removed, domestic relationship comes to an end and a relationship of being relatives of each other survives. This is very normal in families that a person whether, a male or a female attains self sufficiency after education or otherwise and takes a job lives in some other city or country, enjoys life there, settles home there. He cannot be said to have domestic relationship with the persons whom he left behind. His relationship that of a brother and sister, father and son, father and daughter, father and daughter-in-law etc. survives but the domestic relationship of living in a joint household would not survive & comes to an end. N.S. Lellavathi v. Dr. R. Shilpa Brunda, Cri. Revision Petition No. 1146 of 2019 decided on 11.12.2019

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Children, Issue and Heirs

The expressions “children”, “issue” and “heirs” would ordinarily be not synonymous but sometimes they may carry the same meaning. All the aforementioned terms have to be given their appropriate meanings.

In P. Ramanatha Aiyar’s Advanced Law Lexicon at p. 2111, it is stated:

“There is doubtless a technical difference in the meaning of the two words ‘heirs’ and ‘children’, and yet in common speech they are often used as synonym. The technical distinction between the terms is not to be resorted to in the construction of a will, except in nicely balanced cases.

‘When the general term “heirs” is used in a will, it will be construed to mean “child” or “children”, if the context shows that such was the intent of the testator.’

Where the words ‘children’ and ‘heirs’ are used in the same instrument in speaking of the same persons, the word ‘heirs’ will be construed to mean ‘children’; such usage being treated as sufficient evidence of the intention to use the word ‘heirs’ in the sense of ‘children’.”

 Heirs may be lineal or collateral. When we say that the will was a carefully drafted document, evidently, the guarantor thereof was aware of the fact that as thence some of the sons having not been married, the question as to who would be their heirs was uncertain.

If they did not have any issue, the properties in terms of the law as then existing might have passed on to their brothers.

 Whether the expression “heirs” would, thus, mean legal heirs, the question specifically came up for consideration in N. Krishnammal v. R. Ekambaram, (1979) 3 SCC 273, wherein it was stated:

“It is well settled that legal terms such as ‘heirs’, used in a will must be construed in the legal sense, unless a contrary intention is clearly expressed by the testator.”

Referring to an earlier decision of the Hon’ble Supreme Court in Angurbala Mullick v. Debabrata Mullick, 1951 SCR 1125, it was  opined that the expression “heirs” cannot normally be limited to issues and it must mean all persons who are entitled to the property held and possessed by/or under the law of inheritance. In that case, the widow would not have been entitled to inherit the property of her husband as she was not an heir. However, she became an heir by reason of the provisions of the Hindu Succession Act.

The decision in N. Krishnammal v. R. Ekambaram, (1979) 3 SCC 273 is binding. The meaning of the expression “heir” in the context of the Hindu Succession Act has been considered therein. The expression “heir” would mean a legal heir. In construing a document, the Court cannot assign any other meaning. A document as is well known must be construed in its entirety.  When a document is not uncertain or does not contain an ambiguous expression it should be given its literal meaning. Only when the contents are not clear the question of taking recourse to the application of principles of construction of a document may have to be applied. It is also not a case where there exists any inconsistency between an earlier and later part of the document. What is necessary for a true, proper and effective construction of the will in question is to give effect to the intention of the propounder of the will. Bay Berry Apartments (P) Ltd. v. Shobha, (2006) 13 SCC 737.

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Property Owner – Has the Right to Use the Property As he Chooses

In Faruk Ilahi Tamboli v. B. S. Shankarrao Kokate, 2016 (1) ARC 1, the Hon’ble Supreme Court held that it certainly cannot be the claim at the behest of a tenant, that the owner of a premises must continue in business with his parents or relations, assuming there was a joint business activity, to start with. That is usual, assuming there was a joint business activity, to start with. That is usual, and happens all the time when children come of age. And thereafter, they must have the choice to run their own life, by earning their own livelihood. The property owner has the right to use his property as he chooses, for running his business. There could be no irregularity if owner of the property chooses to use his property as he chooses, for running his business, independent of the business of other family members. In Anil Bajaj v. Vinod Ahuja, 2014 (2) ARC 265, the Hon’ble Supreme Court held that it is not for the tenant to dictate to the landlord as to how the property belonging to the landlord should be utilized by him for the purpose of his business. Even if the landlord is doing business from various other premises, it cannot foreclose his right to seek eviction from the tenanted presmises so long as he intends to use the said tenanted premises for his own business. Hari Shanker v. Om Prakash, 2018 (127) ALR 589.

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Suit for – Declaration of Title and Possession

Observing that in a suit for declaration of title, the respondent-plaintiffs are to succeed only on the strength of their own title irrespective of whether the appellants-defendants have proved their case or not, in Union of India v. Vasavi Coop. Housing Society Ltd., (2014) 2 SCC 269, it was held as under: “It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.” Jagdish Prasad Patel v. Shivnath,  (2019) 6 SCC 82.

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Hindu Succession (Amendment) Act, 2005 – Effect on Prior Partitions

The legislature has expressly made the amendment applicable on and from its commencement and only if death of the coparcener in question is after the amendment. Thus no other interpretation is possible in view of the express language of the statute. The proviso keeping dispensations or alienations or partitions prior to 20.12.2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20.12.2004. Notional partition, by its very nature, is not covered either under the proviso or under sub-section (5) or under the Explanation.
Interpretation of a provision depends on the text and the context. Normal rule is to read the words of a statute in ordinary sense. In case of ambiguity, rational meaning has to be given. In case of apparent conflict, harmonious meaning to advance the object and intention of legislature has to be given.
Normal rule is that a proviso excepts something out of the enactment which would otherwise be within the purview of the enactment but if the text, context or purpose so require a different rule may apply. Similarly, an explanation is to explain the meaning of the words of the section but if the language or purpose so require, the explanation can be so interpreted. Rules of interpretation of Statutes are useful servants but difficult masters. Objects of interpretation is to discover the intention of the legislature.
The proviso to Section 6(1) and sub-section (5) of Section 6 of the Hindu Succession Act clearly intend to exclude the transactions referred to therein which may have taken place prior to 20.12.2004 on which date the bill was introduced. Explanation cannot permit reopening of partitions which were valid when affected. Object of giving finality to transactions prior to 20.12.2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the Statute becomes available and is to be enforced. Main provision of the amendment in Sections 6(1) and (3) is not in any manner intended to be affected but strengthened in this way.
The rights under the amendment are applicable to living daughters of living coparceners as on 09.09.2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20.12.2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation. Prakash v. Phulavati, (2016) 2 SCC 36.

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