Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Mangesh S. Patil, J., expressed that, by virtue of Section 19 of the Hindu Succession Act, it has been explicitly made clear that if two and more heirs succeed together to the property and in the estate, they take the property as tenants in common and not as joint tenants.

The suit properties which included 4 agricultural lands and two-house properties, were the properties of Dajiba.

The four daughters of Dajiba had filed the suit against their stepmother for partition and separate possession of their share in the suit properties. The stepmother having agreed to sell one of the suit properties being Survey No. 42/B to respondent 2, was arrayed as defendant 2.

Trial Court decreed the suit awarding a joint 4/5th share to the daughters in all the suit properties.

The above-said judgment was challenged by the step mother and the purchaser and further, the appeal was partly allowed. Except for Survey No. 42/B, the share allotted to the daughters in all the suit properties was confirmed.

Further, the stepmother had agreed to sell it to the purchaser to meet the legal necessity of the family.

Aggrieved with the District Court’s decision, one of the daughters who was plaintiff 4 preferred the second appeal arraying her stepmother and the purchaser as also the remaining three sisters as respondents.

Analysis, Law and Decision

High Court noted that there was no dispute with regard to the suit properties and after the demise of Dajiba, his widow i.e., defendant 1 and daughters, who were the plaintiffs simultaneously succeeded to his estate in view of Section 8 of the Hindu Succession Act.

With regard to Section 19 of the Hindu Succession Act, all the above-stated heirs of Dajiba would inherit as tenants in common and not as joint tenants.

The very theory of existence of a karta and legal necessity presupposes that the sharers are joint, which is not the case in the matter in hand.

Bench stated that by virtue of the above-stated mode of succession by the widow and four daughters of Dajiba receiving the suit properties as heirs, they take their individual shares as tenants in common.

Since the suit properties were not joint, there was no question of the stepmother acting as a manager or karta of the family. Therefore, she had no right to deal with the suit properties even for legal necessity.

High Court relied upon the decision of Supreme Court in Commissioner of Income-Tax, Madhya Pradesh, Nagpur and Bhandara Nagpur v. Seth Govindram Sugar Mills, AIR 1966 SC 24.

Bench added that it has been held that,

under Hindu Law coparcenership is a necessary qualification for becoming a manager of joint Hindu family and since a widow cannot be a coparcener she is not legally entitled to become a manager. Conspicuously, this was a position even prior to the coming into force of the Hindu Succession Act. By virtue of Section 19 it has been explicitly made clear that if two and more heirs succeed together to the property and in estate, they take the property as tenants in common and not as a joint tenants.

With regard to the present matter, the Bench held that, once it was established that the step mother was not entitled to act as a manager or karta of the family, there was no question of her having any power to deal with suit properties to the detriment of the stepdaughters.

Hence, the second appeal was allowed. [Kamalabai v. Darubai, 2022 SCC OnLine Bom 686, decide don 31-3-2022]


Advocates before the Court:

Mr. D.R. Shelke, Advocate for the appellant

Mr. P.G. Godhamgaonkar h/f. Mr. M.D. Godhamgaonkar, Advocate for respondent nos.1 and 2

Mrs. S.D. Shelke, Advocate for respondent nos.3a, 4 and 5

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Expressing that the due execution of a Will is to be proved as per the provisions of law as laid down in Evidence Act as well as that if Indian Succession Act,  Gautam Kumar Choudhary, J., remarked that, a probate court being a Court of conscience, the intention of the testator is paramount and it is the bounden duty of the Court to ascertain the real WILL of the testator if any.

Appellants preferred the present appeal against the order granting probate of Will executed by the testator in favour of his daughter (applicant) with respect to a land.

Applicant’s case was that the suit land was the self-acquired property of the testator who executed the Will.

It was asserted that the Will was executed out of free will and in perfect health.

Though the objector’s (son) case was that the testator never executed any Will and the said Will was forged and fabricated.

Analysis, Law and Decision

High Court expressed that a probate court is not competent to determine the title of schedule property.

Additionally, the Court observed that,

The jurisdiction of a probate court is limited to determination that the will executed by the testator was his last will. Whether he had right to execute the will with respect to the schedule property is beyond the scope of the court considering a probate application.

In the Supreme Court decision of Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon, (2007) 11 SCC 357, it was held that,

“the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only issue in a probate proceeding relates to the genuineness and due execution of the will and the court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the Probate Court”. 

Further, the Bench added that,

Testamentary disposition of property is deviation from natural line of inheritance in lesser or greater degree. It may result in complete disposition in favour of one of the heirs of the testator or it may even be in complete exclusion of any of the heir.

In view of the facts and circumstances of the case, Court affirmed the lower Court’s order. [Neelam Singh v. Sudha Sinha, Misc. Appeal No. 123 of 2012, decided on 10-3-2022]


Advocates before the Court:

For the Appellants: Mr. Anil Kumar Sinha, Advocates

For the Respondents: M/s A.K. Das & Swati Shalini, Advocates

Case BriefsHigh Courts

Gujarat High Court: A.P. Thaker, J. decided over a petition wherein the case of the petitioner was that the properties in question were originaly private properties of Guru Keshavdas, and after the death of Guru Keshavdas, Guru Karsandas became the Mahant and succeeded the properties under his Will. On the death of Guru Karsandas his chela Guru Atmaram became Mahant and succeeded to the properties of Guru Karsandas under his Will dated 08.12.1941. Thereafter, Guru Atmaram died leaving his Will dated 06-05-1947, appointing Guru Ranchhodas as Chela.

Second Class Magistrate Baroda held that Ranchhodas was shishya and heir of Guru Atmaram. However, the then District Magistrate set aside the order and held that Guru Ranchoddas had failed to prove that he was shishya of Guru Atmaram. Against that the petitioner had filed Civil Suit which came to be finally disposed of by the Supreme Court in appeal filed by Guru Ranchoddas with a finding that he has failed to prove that he was appointed as chela or shishya by Guru Atmaram. In the year 1968, during the pendency of the suit, one Vitthaldas Patel had applied for registration of the said Ramji Mandir as public trust. Assistant Charity Commissioner in this respect held that the properties of the Mahant were of his ownership and were not any properties of any trust. The said decisions had become final as there has not been any further proceedings undertaken under the Bombay Public Trust Act, 1950.

Thereafter, Guru Ranchoddas under his Will appointed the deceased petitioner no.1 as his

Chela or heir. The Government of Gujarat took a decision to handover the property to the deceased petitioner no.1 immovable properties and cash of Ramji Mandir under temporary custody of Mamlatdar Vadodara.

After llistening to the arguments of the parties it was established that property in question does not belong to the government. Not only it appears fom the record that the property is of private property of late Mahant Atmaram but also the government has assessed the property as unclaimed property. The Court noted that the deceased petitioner was

declared to be a “Chela” or heir of Guru Ranchhoddas by his Will. The petitioner approached the Court of Civil Judge for Succession Certificate by filing Succession Application  and while it was pending decision to hand over the movable and immovable property in favour of the petitioner was taken by the then State Government and proceeding of entrustment of properties to the petitioner was initiated. In that view of the matter, the petitioner withdrew said Succession Application for issuance of succession certificate due to decision of earlier State Government of handing over movable and immovable property to the petitioner. Thus, the petitioner has relinquished his right to get succession certificate.

Next government had stayed the proceedings and intimated the Collector to keep inabayance of the order and granting the properties in favour of the deceased petitioner. Upon considering the averments made in the affidavit in reply it clearly appears that at no point of time any opportunity was given to the petitioner. It is tried law that any order affecting any legal rights of any person, an opportunity of being heard needs to be granted especially when there is one order passed in his favour in respect of moveable or immovable property and the same order has partly implemented. Therefore, it is immediate requirement of principles of natural law and before passing any adverse orders such persons needs to be granted appropriate opportunity of being heard.

The Respondents were directed to give appropriate opportunity to the petitioners of being heard for cancellation of the order of granting moveable and immovable property in favour of deceased petitioner 1.[Mahant Suryaprakash Ranchhoddas v. State of Gujarat, 2022 SCC OnLine Guj 94, decided on 02-02-2022]


Suchita Shukla, Editorial Assistant has reported this brief.

Legislation UpdatesStatutes/Bills/Ordinances

The Khasi Hills Autonomous District Council (KHADC) in Meghalaya released the ‘Khasi Inheritance of Property Bill, 2021. The Khasis are a matrilineal society and trace inheritance through the mother’s clan. The bill seeks to achieve “equitable distribution” of parental property among siblings- both male and female, in the Khasi community.

 

Key highlights

  • The Bill proposes to let parents decide who they want to will their property to.
  • The Bill would prevent a sibling from getting parental property if they marry a non-Khasi and accept the spouse’s customs and culture.
  • The Bill seeks to achieve equitable property distribution between all children in the family.
  • The purpose of the bill is to modify an age-old customary practice of inheritance of the matrilineal Khasi tribe.
  • The legislation is aimed at economic empowerment based on the principle of equitable distribution of property.

 


*Tanvi Singh, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: Addressing a matter pertaining to the widow’s right of inheritance on the property of the deceased husband, S.M. Modak, J., observed that,

Both wife and mother will have an equal share in light of Section 24 of the Hindu Succession Act, which was in existence at the time of the dispute.

Substantial Question of Law:

Whether a widow can claim the estate of the husband after re-marriage?

High Court referred to the decision of Supreme Court in Kasturi Devi v. Deputy Director of Consolidation, AIR 1976 SC 2595. In the said decision, “the effect of re-marriage on her right to claim share in the property” was considered, though the status of the woman in the said decision was not of a widow but of a mother. Hence the claim pertained for inheritance not as a widow but as a mother. To this issue it was held that there won’t be any effect on her share of inheritance from a son even after she re-married.

Issue in the present matter was:

What is the effect on widow’s right of inheritance (not in the property of a son) on the property of the deceased husband?

Deceased was married to respondent 1 and the present appellant is the mother of the deceased.

It was stated that deceased had nominated his wife for the dues that he was entitled to from the Indian Railways, though it came on record that the deceased and wife were not living together due to the existence of a dispute between them.

After the death of the husband, defendant-wife re-married.

In view of the above events, the plaintiff claimed dues from Indian Railways and informed Indian Railways about the re-marriage of defendant. On non-provision of marriage certificate, the employer disbursed the dues in favour of the wife.

Trial Court favoured the plaintiff and decreed the suit in toto.

Hence, Indian Railways was directed to pay all the due to the plaintiff, though the Appellate Court recognized the share of defendant and directed the employer to disburse the amount to plaintiff and defendant.

Appellate Court’s decision has been challenged before this Court.

Provisions of Law

It was stated that the dues of employer are nothing but the self-acquired property of the deceased and as per Hindu Succession Act, Section 24, the widow loses rights if she remarries on the date when succession opens. It is also true that the said Section was omitted from the Act o 1956 w.e.f 9th September, 2005.

Since the deceased had expired on 19-04-1991, so we have to see what the position in force at that time was. Section 24 was in existence at that point of time, hence as per the said provision, whether it can be said that defendant can be excluded from succeeding the property of the deceased?

Section 14 of the Act of 1956 makes the female Hindu being absolute owner if she possessed the property. Whereas Section 24 of the said Act disinherits the widow if she re-marries.

A very pertinent fact that was noted by the Bench was that, if the widow had not re-married when the succession opened, the disqualification under Section 24 of the Act of 1956 wouldn’t be applicable.

Defendant-Sunanda re-married in May, 1991 (i.e. after opening of succession on 19-04-1991).

Furthermore, the Court stated that since the plaintiff and defendant were class 1 heirs, they were entitled to get equal share in the property of the deceased and as contemplated under Section 10 of the Act of 1956, the widow and the mother of the intestate takes one share each.

Therefore, both the wife and mother were entitled to get 50% from the property of the deceased.

Doctrine of enrichment

Since the wife is not solely entitled to get the whole amount, she was bound to return 50% of the amount to the plaintiff.

Respondent 1 was to refund the amount with 6% interest.

Appeal was disposed of in view of the above discussion. [Jaiwantabai v. Sunanda, Second Appeal No. 144 of 2007, decided on 23-08-2021]


Advocates before the Court:

Shri Ved Deshpande h/f Shri A.S. Mardikar, Senior Advocate for the Appellant Shri J.B. Gandhi, Advocate for Respondent 1.
Shri N.P. Lambat, Advocate for Respondent 2.

Legislation UpdatesStatutes/Bills/Ordinances

Governor of Madhya Pradesh promulgates the Madhya Pradesh Freedom of Religion Ordinance, 2020.

Purpose of this Ordinance

To provide freedom of religion by prohibiting conversion from one religion to another by misrepresentation, allurement, use of threat or force, undue influence, coercion, marriage or any fraudulent means and for the matters connected therewith.

Prohibition of unlawful conversion from one religion to other religions [Section 3]

The said ordinance states that no person shall:

  • Convert or attempt to convert, either directly or otherwise, any other person by use of misrepresentation, allurement, use of threat or force, undue influence, coercion or marriage or by any other fraudulent means;
  • Abet or conspire such conversion

Complaint against conversion of religion [Section 4]

No police officer shall inquire or investigate except upon written complaint of a person converted in contravention of Section 3 above or his parents or siblings or with leave of the Court by any other person who is related by blood, marriage or adoption, guardianship or custodianship as may be applicable.

Punishment for contravention of provisions of Section 3 [Section 5]

Imprisonment for a term not less than one year but which may extend to 5 years and the person shall also be liable to not less than Rs 25,000 fine.

There are certain proviso clauses mentioned under the said Section.

Marriages performed with the intent to convert a person shall be null and void [Section 6]

Marriages performed in contravention of Section 3 shall be deemed to be null and void.

Jurisdiction of Court [Section 7]

To declare the marriage null and void, the petition shall be presented by any person mentioned in Section 4 before the family court or where a family court is not established, the Court having jurisdiction of a family court within the local limits wherein, —

  • The marriage was solemnized or
  • Respondent at the time of the presentation resides or
  • Either parties to the marriage last resided together or
  • Where the petitioner is residing on the date of presentation of the petition.

Inheritance Right [Section 8]

Child born out of a marriage performed in contravention of Section 3 will be legitimate and succession to the property by such child shall be regulated according to the law governing inheritance of the father.

Right to Maintenance [Section 9]

Woman whose marriage is declared null and void under Section 7, children born out of that marriage shall be entitled to maintenance.

Declaration before conversion of religion [Section 10]

Any person who desires to convert shall submit a declaration to that effect 60 days prior to such conversion to the District Magistrate stating his desire to convert without any force, coercion, undue influence or allurement.

Section 11 states the punishment for violation of provisions of Ordinance by an institution or organization.

Burden of Proof [Section 12]

Burden of Proof as to whether a conversion was not effected through misrepresentation, allurement, use of force, threat of force, undue influence, coercion or by marriage or any other fraudulent means done for the purpose of carrying out conversion lies on the accused.

Investigation [Section 14]

No police officer below the rank of sub-inspector of police shall investigate any offence registered under the ordinance.


Also Read:

Prohibition of Unlawful Religious Conversion | Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 [Brief Explainer]

Case BriefsHigh Courts

Allahabad High Court: Ram Krishna Gautam, J., held that as per Section 482 Criminal Procedure Code, 1973, while exercising the inherent jurisdiction, High Court cannot make any comment on the factual matrix as the same remains under the trial court’s domain.

The instant application was filed under Section 482 Criminal Procedure Code, 1973 against the State of U.P. and Wsima Begum for quashing the charge sheet as well as the criminal case under Sections 420, 467 and 468 of Penal Code, 1860.

Applicants Counsel, Nazrul Islam Jafri, S.A. Ansari mentioned that allegations made against the applicant made out a case of civil liability as the applicant was alleged to have gotten her name mutated after the death of her husband under Section 34 of Land Revenue Act.

Applicant was married to Sagar Ali under Muslim Rites and customs and was blessed by one female child.

Applicant was subjected to cruelty with regard to dowry hence a criminal case was filed against her husband and in-laws.

Unfortunately, the husband of the applicant and his mother were murdered by unknown assailants. Due to the enmity and litigation, Parvej lodged a criminal case against the applicant and her family members on the basis of frivolous allegations under Section 147, 148, 149, 302, 307, 115 and 120-B of IPC read with Section 7 of Criminal Law Amendment Act.

Applicant, after the death of Sagar Ali, filed an application for getting her name along with her minor daughter’s name mutated at the place of Sagar Ali over his agricultural property.

In light of the above-stated, the application was allowed and the names were mutated in the revenue records.

Further, it has been stated that OP-2 claiming to be the second wife of Sagar Ali moved an application before the Court of Nayab Tehsildar challenging the above mutation order on the ground that she was the legally wedded wife of Sagar Ali. Hence the present applicant was fully aware of those facts even then, she got her name mutated with the wrong contention.

Tehsildar on hearing both sides, in 2014 had set aside the mutation order.

Analysis 

Civil Suits regarding agricultural land of Sagar Ali and his mother Ikhlasi Begum, with regard to disputed “will”, said to be executed by Sagar Ali, is pending before the competent Civil Court.

Ummeda Begum claimed herself to be successor along with her daughter Zoya for the property of late Sagar Ali and late Ikhlasi Begum. She claimed herself to be the only successor wit no other inheritor.

Court noted that in many other previous litigations it was fully in the knowledge of Ummeda Fatima that Sagar Ali was married to Wasima Begum, who was blessed with one female child. Even after knowing this fact mutation application was moved with an incorrect affidavit and incorrect application of documents.

U.P. Revenue Code Section 114 (c) provides that “A person who commits the murder of a [Bhumidhar, asami or government lessee], or abates the commission of such murder, shall be disqualified from inheriting the interest of the deceased in any holding.”

The prima facie case was disclosed for cognizable offence and it was not a ground for quashing of the FIR.

Offence of moving application, with false and fictitious contention, claiming herself to be sole survivor along with her minor daughter over the property of late Sagar Ali and his mother Ikhlasi Begum, and thereafter, fabricating oral and documentary evidence for it and getting name mutated, knowing the legal situation of debarring of inheritance and conviction in that criminal case of murder, prima facie, makes out offences for which charge-sheet was filed.

Section 482 CrPC, provides that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

In the decision of the Supreme Court in Hamida v. Rashid, (2008) 1 SCC 474, Supreme Court propounded that “Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 at an interlocutory stage which after filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable to win over the witness or may disinterested in giving evidence, ultimately resulting in miscarriage of Justice.”

Abuse of Process of Court

In the Supreme Court decision of Dhanlakshmi v. R. Prasan Kumar, 1990 Supp SCC 686, it was propounded that “To prevent abuse of the process of the Court, High Court in exercise of its inherent powers under section 482 could quash the proceedings but there would be justification for interference only when the complaint did not disclose any offence or was frivolous vexatious or oppressive.”

Hence in view of the above, the exercise of inherent jurisdiction under Section 482 CrPC is within the limits, propounded as above. Therefore, this Court will not make any comment on the factual matrix because the same remains within the domain of the trial court.

Prayer for quashing the impugned order as well as the proceeding of the aforesaid complaint case was refused.[Ummeda Fatima v. State of U.P., 2020 SCC OnLine All 1358, decided on 19-11-2020]

Case BriefsHigh Courts

Madras High Court: P.T. Asha, J., addressed a matter in relation to adoption and modification in the birth certificate of a minor in terms of change in the name of the biological father of the child.

Legal status of a biological daughter

Petitioners are the adopted father and biological/natural mother of minor seeking direction from the Court that petitioner 1 be appointed as a father of the minor female child and consequently, the minor child be entitled to the legal status of a biological daughter with all the rights of succession and inheritance in respect of the adopted father and a modified birth certificate of the minor be issued.

Adoption Regulations and the JJ Act

Petitioners have contended that the conditions prescribed under Adoption Regulations and the Juvenile Justice Act have fully been complied with while filing the present petition.

Bench on perusal of the facts and submission in the present matter stated that the parties are all Hindus and therefore bound by the provision of the Hindu Adoption and Maintenance Act, 1956.

In the instant matter, the biological father of the minor child died three years back, and hence proviso to Section 9(2) of the Hindu Adoption and Maintenance Act, 1956 would not be applicable to the case.

Adoption

Court observed that it is well open to the biological mother of the minor child to give her child to adoption and since both petitioner 1 and the petitioner 2 i.e. the biological mother of the child are happily married and living together and the minor has been living with them, there is no impediment to the said prayer of adoption.

 Birth Certificate of the minor cannot be modified

Bench stated that on the date when the birth certificate of the minor was issued, the biological father was alive and it is him who has been described as the father of the minor child in the birth certificate.

Adoption does not sever the relationship of the minor with her biological father. 

Only exception to the above is, when the biological father himself renounces his right as father of the minor and consents for the child to be taken by the adoptive father.

Court added that even in the above-stated cases, only the status of being a biological father does not change, only the status of adoptive father, custody and maintenance of the minor child changes hands.

In the present matter, the biological mother cannot deprive the minor child’s right to have the name of her biological father in her birth certificate.

Registration of the births is governed by the provisions of the Registration of Births and Deaths Act, 1969.

Under what circumstances can a correction or cancellation of the entry in the register of births and deaths be made?

Court stated that only under the following circumstances the birth certificate can be modified:

(a) When the entry is erroneous in form or substance; and

(b) The entry has been fraudulently or improperly made.

Under Section 15 of the Registration of Births and Deaths Act, 1969 it is clear that the original entry cannot be corrected/deleted and the incorporation of the new details can be made only in the margin.

In the present matter, Rule 5 of Tamil Nadu Registration of Births and Deaths Rules, 2000 talks about adoption and prescribes a form. Serial Nos. 7 and 8 relate to the name of the adoptive mother and the adoptive father.

Hence, the petitioner’s request to delete the biological father’s name from the original birth certificate is not legally sustainable since the rules clearly provide for incorporating the name of the adoptive parents separately in column nos. 7 and 8 as adoptive parents and not as natural parents.

Court held that the substitution of the name of petitioner 1 as the biological father of the minor cannot be permitted and taking into consideration the Rule 5 of Tamil Nadu Registration of Births and Death Rules, 2000, Court directed for issuance of a birth certificate as contained in Form 1-A of the Rules by effecting entries in column nos. 6,7,8,9 and 10 and the original birth certificate shall remain unaltered.

In view of the above, the original petition was allowed. [Vivek Narendran, In Re., 2020 SCC OnLine Mad 1758, decided on 20-07-2020]

Case BriefsSupreme Court

Supreme Court: The bench of NV Ramana and MM Shantanagoudar, JJ, on the issue relating to legality of the marriage of a Muslim man with an idolater or fireworshipper, said that such marriage “is neither a valid (sahih) nor a void (batil) marriage, but is merely an irregular (fasid) marriage.”

In the present case, the plaintiff had claimed his share in property of his Muslim father, who had married his Hindu mother. However, the defendants argued that the plaintiff’s mother was not the legally wedded wife of Mohammed Ilias and that she was a Hindu by religion at the time of marriage. She had not converted to Islam at the time of her marriage, and thus the plaintiff was not entitled to any share in the property in question.

The Court, however, after considering that the marriage in question was an irregular marriage, noticed:

“the legal effect of a  fasid marriage is that in case of consummation, though the wife is entitled to get dower, she is not entitled to inherit the properties of the husband.  But the child born in that marriage is legitimate just like in the case of a valid marriage, and is entitled to inherit the property of the father.”

Based on the finding that any child born out of a fasid  marriage is   entitled   to   claim   a   share   in   his   father’s property, the Court held that the plaintiff was entitled to his share in his father’s property. [Mohammed Salim v. Shamsudeen, 2019 SCC OnLine SC 52, decided on 22.01.2019]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: A Single Judge bench comprising of Aparesh Kumar Singh, J. while dealing with a civil writ petition challenging the termination of services, upheld the order of termination.

Brief background of the case is that in the pre-constitutional set-up, the practice in Bihar was to appoint village chowkidars for a lifetime who worked without any leave or retirement. During his illness or absence, any of his family members would assist him in the performance of his duties and when he died or became infirm; usually his family member nominated by him took over the functions of chowkidar, though the post was not strictly hereditary. In the post-constitutional set-up, there was a gradual change in the village administration and several hereditary/ semi-hereditary appointments gave way to regular public service with appointments based on equal opportunity.

In the present case, the petitioner was appointed as chowkidar in the place of his father. However, in view of this court’s order in the case Nandan Vohra v State of Jharkhand, WPS No. 2072 of 2007, Order dated 02-03-2016, holding that a public post cannot be given as an inheritance to the son/daughter of a retired employee and equal opportunity for appointment to the public post is a requirement under Articles 14 and 16 of the Constitution of India; the petitioner’s services were terminated by way of a show cause notice issued by the Deputy Commissioner. The challenge to this termination order is the subject matter of the instant writ petition.

The High Court opined that in view of the judgment of Apex Court in the case of Surendra Paswan v State of Bihar, (2010) 6 SCC 680the State government had taken decision to remove /terminate all the chowkidars appointed on the inheritance basis and the principle of law laid in therein was uniformly followed in subsequent cases including the Nandan Vohra case. As such, the writ petition was dismissed holding that there was no infirmity in the impugned termination order. [Vijay Kumar Paswan v. State of Jharkhand,2018 SCC OnLine Jhar 1203, Order dated 17-09-2018]

High Courts

Kerala High Court: On a Writ Petition filed by several petitioners to declare Shariat Law applicable in regard to inheritance of property by Muslim women as unconstitutional and void for being violative of Articles 14, 15, 19, 21 and 25 of the Constitution, a division bench of Ashok Bhushan CJ and A.M. Shaffique J dismissed the petition on the ground that the issues raised in the Writ Petition cannot be adjudicated in proceedings under Article 226 of the Constitution and has to be left to the wisdom of Legislature which is competent to enact law on the subject.

The Counsel for the petitioner K. Ramakumar pleaded that Shariat law discriminates among Indian citizens on the ground of sex, as it provides that if a Muslim father dies leaving only daughters, those daughters will not get share equivalent to that of the share she would get if she was a male and will have to share properties along with distant relatives of the deceased, whereas the male child takes the entire property and has to share it only with the spouse and parents of the deceased. The Counsel further pleaded that religious practices have to be made more practicable and workable to adapt itself to the changing needs of the Society. The Counsel for the respondent pleaded that for challenging the Shariat law which has got statutory recognition, a legislation has to be brought into by the competent legislature.

The Court referred Maharshi Avadhesh v. Union of India 1994 Supp (1); SCC 713, where it was held that “the respondent cannot be directed to enact Shariat Law as these are the all matters for legislature”. The Court held that the issue of modification of personal law is not something which can be adjudicated by this Court in a Public Interest Litigation and has to be left for the Legislature to consider the issues raised and frame a competent legislation thereof. Accordingly, the Court dismissed the PIL challenging the constitutionality of Shariat law. Khuran Sunnath Society v. Union of India2015 SCC OnLine Ker 13643decided on 02.07.2015