Advocate Raghu DT

Questions Answered by Advocate Raghu DT

Q: Whether the wife a widow can demand for partition under Hindu Law

Husband died recently - Can his wife a widow demand for partition of her husband's share in the ancestral property. How can she do it?

Advocate Raghu DT answered
Nagpur: In a landmark verdict, Bombay high court has ruled that a widow or mother of a coparcener can file a case for partition of the man's joint family property so she can get her share... The Hindu Woman's Right to Succession Act of 1937 enabled a woman to seek a partition, but only till she was alive, and then her property reverted to the joint family. The Hindu Succession Act of 1956 entrusted this right to absolute owners in case of joint property, which meant the property could be divided only if other members demanded it. An amendment in 2005 gave daughters the same rights as sons regarding the father's property, but no such right was conferred on the widow or mother... "The doctrine of ubi jus ibi remedium (where there is a right there is a remedy) must be pressed into service to hold that the widow or woman has right to file suit for partition in order to recover the property due to her husband in a joint family, notwithstanding the fact that the other coparceners (inheritors) in the joint family don't desire to have the partition. Such a widow has an independent right given by law through husband to have a share in the joint family property," a single-judge bench of Justice Arun Chaudhari held... The judgment came while hearing two second appeals filed by family members against Sulochana Chavan from Pune and Chanda Karne from Satara. Both filed partition suits after the death of their husband, which were partly allowed by trial courts and challenged by the in-laws in the high court... In a similar case of Ananda Tate in 2010, the high court had taken the view that a Hindu woman (mother in this case) had no right to file a partition suit under the 1956 act, though this right was earlier available as per 1937 act. "In the absence of any other coparcener in the family demanding partition of the joint property, the suit by her was not maintainable," it had ruled... Justice Chaudhari however reverted the verdict by ruling that "when a right is given, the remedy has to be there to file a suit for partition, which can't depend upon the demand of other inheritors to partition the joint property," the court observed... Quoting Shastric Hindu law, Justice Chaudhari said it's true that a female didn't have a right to claim partition of a joint Hindu family property and would be entitled to a share equal to that of a son only on partition between the sons. "With the advent of 1956 act, which materially altered the Hindu Personal Law, the widow has been placed as a Class-I heir of husband in the schedule. Therefore, she would be entitled to succeed to his entire share in the joint or ancestral property of the family with the same magnitude of estate, which husband would have got had he been alive," he mentioned... The court added that the right to have a share in the property through her husband provided to a widow can't be made nugatory by projecting an artificial distinction that the act of 1956 does not provide enabling provision to a widow, mother or a woman to file suit on her own or independently, seeking partition of the share of deceased husband... Citing sui juris (one's own right), the court held that the right to share has been given to a widow upon death of husband as per the act of 1956. "It doesn't carve out any prohibition on her from filing the suit independently. Hence, it must be held that she has a right to file the suit independently," the court ruled while dismissing both appeals before it.

Q: I have a query pertaining to Benami purchase

Resp sir/ mam i am hindu retired Govt servant.i purchased an agricultural land in 1968 in mother name because of i was a Govt servant.my mother died in 1990. on those days(1968) 2 brothers & 2 sisters are minor. Now they want a share in this land.i personally paid all amount in the form of cash. My Questions are, 1.how can i enter my name in ROR. 2.how can i sue in the court. 3.Weather Benami Act 2016 is effected for this case.how it effects. 4.is there any solution to this problem. Please give a solution to me. Thank you.

Advocate Raghu DT answered
1/5th share in the Agricultural land stands in the name of ur mother because she died intestate leaving behind u and ur brothers and sisters. Apart from that u can file application before the Thasildar for transmutation of mutation into ur name after registration of release deed from ur brothers & sister.

Q: What are the occasions of cheque destruction who is liable for the act

What are the occasions of cheque destruction.If cheques destroyed by mistake by bank. Afterwards cheques encashed by bank staff where cheques issued in his favour with customer consent . who is liable?

Advocate Raghu DT answered
If a party has issued a cheque from an account which is closed, the bank cannot destroy it when it is presented for payment. The cheque has to be returned to the payee's bank. .. Case Study: Ramkishan Choudhary received a cheque from Madan Gopal for Rs1 lakh drawn on ICICI Bank's Jodhpur branch. Choudhary deposited it in his account with State Bank of Bikaner & Jaipur (SBBJ), Jodhur branch. ICICI Bank refused to honour it, and sent a "return memo" with an endorsement stating "cheque destroyed". .. Choudhary was aggrieved as the cheque ought to have been returned in case it was not cleared or dishonoured, but in no circumstances could it have been destroyed. Alleging deficiency in service, Choudhary filed a joint complaint before the Jodhpur district forum against ICICI Bank, SBBJ Bank and Madan Gopal. He claimed that the destruction of cheque was a gross deficiency in service which had caused him a loss of Rs 1 lakh. .. The forum upheld the complaint and granted Rs 5,000 as compensation and Rs 2,000 as cost, but refused to award the value of the cheque, saying that the amount should be recovered from Madan Gopal who had issued it. In appeal, the Rajasthan state commission modified the order by holding both the banks jointly liable to pay Rs 1 lakh along with 9% interest from the date of the complaint. .. ICICI Bank challenged this order in a revision before the national commission. It attempted to justify its action, saying that it had every right to destroy the cheque as Madan Gopal's account was closed and inoperative. The bank argued that even if this is construed as a minor negligence, it should not be held liable to pay the value of the cheque, as Madan Gopal was responsible for making payment to Choudhary. .. Choudhary contended that he cannot be made to undergo the harassment and mental agony of filing a civil suit against Madan Gopal merely because the bank had been negligent in destroying the cheque. .. In its judgment of November 3, 2014, delivered by Justice J M Malik for the bench along with Dr S M Kantikar, the commission observed that the bank had not produced any evidence to show that the account had been closed. Even otherwise, the bank had no business to destroy the cheque but was duty-bound to return it, giving, along with the cheque, a return memo, citing the appropriate reason. .. The commission said that destruction of the cheque results in its loss due to criminal intent. It indicted ICICI Bank of having acted negligently and vengefully. It held that the bank could not be liable to pay the value of the cheque, but would have to pay compensation for deficiency in service. The commission modified the order and held the banks jointly liable to pay Rs 30,000 as compensation to Choudhary. .. Observing that ICICI Bank had been terribly remiss in the discharge of its duties, almost verging on criminality, the commission imposed further costs of Rs 20,000 payable by ICICI Bank to the Consumer Welfare Fund. .. Conclusion: A banker is required to act with prudence as per accepted banking norms. Otherwise, it will amount to negligence and deficiency in service, for which the consumer can claim compensation

Q: Can Police recover property from accused without arresting him

As per section 41A CrPC police can issue a notice to accused to record his statement where arrest is not necessary. But when the offence is punishable with less than 7 years of imprisonment and FIR accused is ready to surrender the property involved in the offence and ready to co-operate with investigation. Can a police recover the property from the accused without arresting him ?. under what provisions of law police can do this?

Advocate Raghu DT answered
It is a general process by police that during any investigation or enquiry they seize any property which they think is evidence and will be helpful in the process of trial, that property includes those from the crime has been conducted or for which the an offence has been committed. The property also includes the money which has been stolen and has recovered