Stridhan property ayautuka and yautuka

 Stridhan property ayautuka and yautuka

For the purposes of inheritance Jimutavahana divides stridhan property into two broad classes, viz. ayautuka or property given to a female at a time other than that of marriage, and yautuka or property given to a female at the time of marriage.

Vriddha Katayana says immovable property which has been given by parents to their daughter, goes always to her brother, if she dies without issue. The brother’s right to succession is founded simple on her leaving no issue.

Viswarupa says property of a childless woman married by any form of nuptials from that of Brahma to that of Pissachas goes to her brother.

Devala says a woman’s property is common to her sons and unmarried daughters, when she is dead. But if she leaves no issue, her mother would be entitled to succeed in preference to her husband, in the case of ayutuka stridhana.

Yuatuka stridhan property given by the father is inherited as other yautuka, and ayautuka stridhan property given by the father is inherited as other ayautuka. 

Anwa dheya – For anything received by a daughter subsequently to her nuptials is under the denomination of ‘anwa dheya’ (gift subsequent).

Katyayana describses anwa dheya (a gift subsequent) what has been received by a woman from the family of her husband and at a time of posterior to her marriage, is called a gift subsequent.

Pitridatta ayautuka is the property given by the father at any other time but the wedding, a maiden daughter succeeds in the first instance, next a son, then a daughter who has male issue, after them the daughter’s son, the son’s son, the great-grandson in the male line, the son of a contemporary wife, and her grandson and great-grandson in the male line, next to these, the barren and widowed daughters inherit together.

Under the Bengal School of Hindu Law, the mother is entitled to succeed to the pitridatta ayautuka stridhan property of a woman in preference to her husband.

 

Finding on facts should no be disturbed in Appeal

 Finding on facts should no be disturbed in Appeal 

Though it is trite, that the conclusions arrived at on factual aspects are not to be interfered with in an appeal under Section 100 of the Code, where the lower Courts have acted on presumptions or have arrived at conclusions which are not available to be drawn on the materials on record, or are perverse, the High Court can interfere under Section 100 of the Code. A finding of fact can be set aside in second appeal (a) where it is not based on any evidence or on legal evidence or on a judicial consideration of evidence adduced; (b) where the evidence is disbelived for no reason, (c) where it is based on a misconception of the real point in controversy in the case; (d) where the conclusion of fact is not warranted by the facts on which it is based or is inconsistent with other findings in the case or is opposed to the case set up by the party in whose favour it is drawn or is contrary to pleadings and evidence in the case; (e) where it is contrary, to the facts found or is inconsistent with the statement of reasons therefor in the judgment or is based on quaint reasoning, or is vague or indefinite or ambiguous: (f) where it is arbitrary or vitiated by prejudices or is based on a distorted view of the evidence or is based on surmises or extraneous considerations, or where no reasons have been given for the finding; (g) where material facts or evidence have been ignored in arriving at the conclusions of fact and (h) where finding is perverse in the sense that no normal person could have arrived at that finding. Additionally wrong interpretation of a document makes out of case for interference.

Counsel answers the charge

 Counsel answers the charge

Prosecution counsel argued that the court below had gone wrong in permitting the counsel for the accused to answer the charge and to plead for the accused as the Magistrate had no discretion to permit the counsel to answer the charge in a warrant case even though such discretion can be exercised in summons case.

Counsel for the accused argued that the court has the discretion to record the plea of the accused through his counsel even in warrant cases.

Sec.205 CrPC authorizes the Magistrate to dispense with the personal attendance of accused.

Sec.205: Magistrate may dispense with personal attendance of accused.

Sec.205(1) – Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.

Sec.205(2) – But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.

Even at the time of the issue of summons the Court can dispense with the personal appearance of the accused in view of Sec. 205 CrPC.

In Raman Nair vs State of Kerala, (1999) 3 Ker LT 714 it was held that the exemption from personal appearance can be granted even after the issue of summons to the accused on an application by the accused.

Sec.317 CrPC – It deals with the enquires and trials being held in the absence of the accused. 

Sec.317 (1) authorizes the Court to proceed with the trial of the case even in the absence of the accused if he is represented by a pleader and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused. 

Therefore, the Counsel for the accused argued that the personal attendance of the accused is not at all essential at the time of taking the plea of the accused and the law does not insist such personal attendance of the accused, but permits the counsel to make the plea for an don behalf of the accused.

Section 228 and Sec.241 of CrPC deal with the framing of charge in sessions cases and warrant cases respectively.

Sec.228(2) and Sec.241(2) stipulate that the charge shall be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claimed to be tried.

Sec.229 and Sec.241 deal with the conviction of the accused on his plea of guilty in sessions case and warrant cases respectively.

Sec.229 – Conviction on plea of guilty – If the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon.

Sec.241 – Conviction on plea of guilty – If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon.

Sec.251 CrPC says that in summons cases where the accused appears or brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him and he shall be asked whether he pleads guilty or has any defence to make. 

Sec.252 stipulates that where the accused pleads guilty, the plea of the accused shall be recorded and the Court mya, in his discretion, convict him thereon.

Sec.253 deals with the conviction on the plea of guilty in the absence of the accused in petty cases.

Sec.253(1) says that where a summons had been issued under Sec.206 and the accused desires to plead guilty to the charge without appearing before the Court, shall transmit the Court by post or by messenger a letter containing his plea and also the amount of fine specified in the summons.

Sec.253(2) stipulates that the Magistrate in his discretion can convict the accused in his absence on his plea of guilty and sentence him to pay the fine specified in the summons and the amount transmitted by the accused shall be adjusted towards fine or where a pleader authorized by the accused in this behalf pleads guilty on behalf of the accused, the plea of the pleader shall be recorded and the accused shall be convicted on such plea and sentence him.

Sec.254 stipulate the procedure when the accused is not convicted on such plea made under Sections 252 and 253. If the accused is not convicted, the Magistrate has to proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produced in his defence. 

The above provisions would make it clear that even if the accused makes a plea of guilty, the Court is not obliged to accept the plea of the accused and to convict him thereon but the Court has the discretion to direct the prosecution to produce evidence and to try the case without convicting the accused.

Sections 229, 241, 252 and 253(2) prescribe the procedure where the accused makes a plea of guilty. The above provisions confer a discretion on the Court either to convict the accused on the plea of ‘guilty’ or to direct the prosecution to let in evidence to prove the guilt of the accused before he is convicted. But if the plea is one of ‘not guilty’, it becomes imperative on the part of the prosecution to let in evidence and to prove the accusation against the accused and the Court has only to direct the prosecution to let in evidence. 

A construction of the above provisions would reveal that the Court has to meet the following situations while taking the plea of the accused:

(1)where the accused makes a plea of ‘not guilty’, 

(2) where the accused makes a plea of ‘guilty’ but the Court, instead of convicting the accused, proceeds to take evidence,

(3) where the accused makes a plea of ‘guilty’ and the Court proceeds to convict him on the plea of ‘guilty’.

It is now to consider whether a uniform procedure need be followed by the Court in all the above situations and direct the personal attendance of the accused or the counsel can be permitted to make the plea of the accused in all or any of such situations. That too, when Secs.305 and 317 permit the Court to dispense with the personal attendance of the accused, and Sec.253 specifically permitting the counsel to make a plea of ‘guilty’ in petty cases.

A consideration of Sec.253 would reveal that the Court can accept the plea and convict and impose a sentence on the accused where the pleader is authorized by the accused in this behalf makes the plea of guilty. The above provision would indicate that whenever the accused wants to make a plea through the counsel, the counsel has to specifically authorized by the accused in that behalf. If a counsel has to be specifically authorized in that behalf, such authorization should disclose whether the accused intends to plead ‘guilty’ or ‘not guilty’. 

The Bombay High Court in Dorabshah Bomanji Dubash vs Emperor, AIR 1926 Bombay 218, while considering the question whether the estate manager of the accused can be treated as a pleader authorized by the accused to represent him, held that whenever there is a deviation from the general law, and it is allowed, there should be something on record to show that the person who represents the accused has been duly appointed by him for that purpose. There it was further held that where the Court dispenses with the personal attendance of an accused under Sec.205 CrPC, the Court should not upon the record that permission under Sec.205 had been granted and also that the Court can act upon the plea of the counsel in cases falling under Sections 242 and 243 CrPC (summons cases).

The Calcutta High Court in SR Jhunjhunwalla vs BN Poddar, 1988 Cri LJ 51, held that Sec.205 is a general provision from the scope of which Sec.251 has not been excepted. Therefore, when in a summons case the accused has been exempted from personal attendance and permitted to appear by his pleader under Sec.205, the pleader can take the plea of guilty or not guilty in the examination under Sec.251. The presence of the accused is not an absolute necessity while being examined under Sec.251 and pleading guilty or not guilty. No doubt, the Magistrate has a discretion under Sec.205(2) to require the personal appearance of the accused but that discretion must be exercised judicially. When the Magistrate has exempted the accused from appearing before him during the trial, he must indicate reasons why such exemption was being withheld. Where the discretion of the Magistrate requiring the personal attendance of the accused for being examined under Sec.251 was founded on a wrong view of law that the presence of the accused was an absolute necessity while being examined under Sec.251, the order of the Magistrate requiring the presence of the accused is bad. Under Sec.313(1)(b) proviso also the Court can dispense with the examination of any person whose personal attendance has been dispensed with by it. This also indicates that in taking the plea of guilty or not guilty under Sec.251 an accused can be examined in his absence through his pleader who is representing him under Sec.205.

The same view was taken by the Delhi High Court in S. Nihal Singh vs Arjan Das, 1985 Cri LJ 467. There it was held that it cannot be said that if Sec.251 is read in conjunction with Sec.252 the plea to the substance of accusation has only to be recorded on the personal attendance of the accused. Sec.252 simply lays down that if the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict him thereon. Evidently this section has no bearing on the question whether the personal appearance of the accused is imperative when substance of accusation is to be read under Sec.251. It would in other words mean that the word ‘accused’ in Sections 251 and 252 is not limited to the person of the accused but may include a pleader where he is permitted by the Court to appear through him.

The above decisions taken by the Calcutta High Court and Delhi High Court would make it clear that in summons’ cases when the personal attendance of the accused is exempted under Sec.205 CrPC, the plea of the counsel can be taken for and on behalf of the accused even if the plea is one of guilty.

The question would be different when the accused in a warrant case seeks permission to allow the counsel to plead ‘guilty’ or ‘not guilty’ for and on behalf of him when he appeared and was exempted from personal appearance under Sec.317 CrPC. So far as the plea is one of ‘not guilty’, the Court has no further discretion to be exercised as the discretion already exercised in granting exemption would take in granting permission to the accused to have his plea of not guilty made through the counsel, as a plea of ‘not guilty’ in such cases is only procedural in nature. If the plea is one of ‘guilty’, the nature and consequences are different. There also some distinction has been drawn where the Court is not inclined to convict the accused on the basis of the plea of guilty and where the Court is inclined to convict and impose sentence on the accused. In the case of accepting the plea of the accused and convicting the accused also, a distinction has to be drawn between the cases where a sentence of fine alone need be imposed on the accused and where imprisonment has to be imposed on the accused. 

The law says that the Court has the discretion to accept the plea of the accused and convict the accused thereon. Sec.228(1) and Sec.240(1) says that a charge has to be framed after considering the nature of the allegations made against the accused, the nature of evidence that is collected and produced before Court and hearing the prosecution and the accused. So, when the charge is framed against the accused, the Court is expected to be fully aware of the nature of the allegations, the gravity of the offence and also aware of the consequences as to whether the Court has to accept the plea of guilty made by the accused and convict him thereon or to direct the prosecution to let in evidence. 

In fact, in all cases where the Court is not inclined to convict the accused on the basis of the plea of guilty made by the accused, the personal attendance of the accused may not be essential and his personal appearance can be dispensed with and the counsel can be allowed to make a plea for and on behalf of the accused.

Likewise, where the Court is inclined to accept the plea of the accused and to convict him and to impose a sentence of fine alone, the personal appearance of the accused can be dispensed with in view of Sec.353(6) CrPC which says that the personal appearance of the accused can be dispensed with at time of the judgment if the sentence is only of fine and in such cases also the Court can dispense with the personal appearance of the accused and the plea of the counsel can be recorded.

But if the Court is inclined to impose a sentence of imprisonment on the basis of the plea of guilty of the accused, then the Court has to consider whether the personal attendance of the accused is to be insisted or not. A consideration of the above provisions would reveal that in all cases where exemption from the personal attendance is granted and where the plea is one of ‘not guilty’ the Court has only to allow the counsel to plead ‘not guilty’ for the accused, as such a plea is only of a procedural nature. In cases where the personal attendance of the accused is exempted under Sec.205 CrPC and it is a summons case, the Court has to record the plea of the counsel for and no behalf of the accused even if the plea is one of ‘guilty’. But in warrant cases the Court has to exercise its discretion in a judicial manner considering the nature and gravity of offences and the consequence of accepting the plea. 

Thus the Court has the discretionary power to exempt the personal appearance of the accused even in warrant cases and to have the plea of the counsel recorded for and on behalf of the accused, when he is specifically authorized for the purpose and in appropriate cases. 

If after considering all the aspects of the case, the Court holds that the personal attendance of the accused is not essential, the Court can dispense with the personal attendance of the accused and the plea of the counsel can be recorded and on the basis of such plea, the Court can either convict the accused or proceed to have the trial.

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Aranyakas ஆரண்யகா

 Aranyakas 

The term ‘Aranyakas’ has been explained on page 17, in the ‘Dictionary of Hinduism’ and the relevant extract is as under:

Aranyaka (Forest texts). These are essentially sacred esoteric writings which form the core of the Upanisads. They were considered to be ‘of a secret uncanny character, and spelt danger to the uninitiated’, being intended only for those brahmanas and ksatriyas who had renounced the world and retired to forest solitudes.

 

 

 

Vedanta வேதாந்தம்

 Vedanta

Vedanta means ‘the end of Veda’ i.e. the complete knowledge of Veda.

It is explained on page 329 to 330 in the ‘Dictionary of Hinduism’ as under:

The Vedanta, the complete knowledge of Veda, is not an appendage to any particular portion of the Veda as were the Brahmanas, but a re-interpretation of its basic truths in the light of aupanisadic (not Upanishad) revelation. The Vedanta is thus associated with the Uttara-Mimamsa ‘upper or later examination’, regarded as one of the six Hindu darsanas which represented the ‘views’ of particular religious groups, and is distinguished from the Purva-Mimamsa, the conservative and fundamentalist appraisal of the original parts of the Veda.

The Vedanta views, unlike those of the other darsanas, were not initiated by a particular teacher, but were derived from the teaching of the Upanishads. As these presented both a doctrine of pure monism (Advaita) and that of a modified dualism (Dvaita), the expositions differ. 

It was not until Badarayana produced his Brahma-sutras (between A.D. 200 and 450) that particular Vedanta views were systematically presented. Despite the lack of indisputable evidence, it is probable that the a-Upanisadic notion of the atman was current in the sixth century B.C., as is suggested by the Buddisht anatta (Skt. Anatman) non-atman doctrine, which by the second century A.D. had become the sunyavada of the Mahayana Buddhists.

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Living Will and Euthanasia

 Living Will

 

A “Living Will” is a legal document which detailed the medical care needed by the person, who wrote that Will. Because he may be unable to make conscious decisions or communication when medical attention needed.

 

In India - Living Will have legal since March 2018, when the Supreme Court created a process to allow terminally ill patients, with no hope of cure, to withhold or withdraw medical treatment and to die with dignity.

 

Living Will can be made by writing and attested by two witnesses and further attested by a Notary Public Lawyer or a Gazetted officer.

 

Voluntary euthanasia 

Euthanasia is a Greek word, and it means good-death or dying well.

 

Voluntary euthanasia is the ending of a person’s life at their request in order to relieve them of suffering. In some of the countries, this voluntary euthanasia is legal.

 

In India, since March 2018 passive euthanasia is legal under strict guidelines. Patients must consent through a ‘living will’, and must be either terminally ill, or in a vegetative state.

 

Euthanasia brings many ethical issues. Some believe that the terminally ill patient should have the right to choose death or refuse life-saving treatment. Some physicians state that it is in violation of Hippocratic oath.

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Will or Settlement Notes

 Will or Settlement

How should you leave your assets behind?

A person can leave his assets to his/her blood relative or anyone either by a deed of Will or by a deed of Settlement or by forming family trust.

Deed of Will is a Testamentary document i.e. it will take effect only after the lifetime of the maker of that Will, called Testator.

Whereas a Deed of Settlement (to the family members) is instant document to take effect immediately on the execution of that deed. 

Whereas a Deed of Settlement (outside the family members), which is otherwise called a ‘Gift deed’ and it is also a kind of settlement.

Deed of Will

Will is a testamentary document (i.e. it will take effect only after the lifetime of the maker of that Will).

Privileged Will is a kind of Will, applicable to members of the Army, Airforce, and Naval forces, while they are in the warfare.

Unprivileged Will is a kind of Will, applicable to all others, i.e. the general public.

Only a Hindu, or a Christian can make his Will and bequeath (dispose) his properties (either movable or immovable or any other transferable assets).

A Muslim cannot make a Will and bequeath his entire property, but only his 1/3^rd share, that too, with the consent of all the other sharers, as per the Shariat law (Muslim law).

Will with Executor:

A Hindu, or a Christian can make his/her Will and thereby bequeathing his/ her properties to the legatees (beneficiaries) through his/her named Executor. The said Executor, after the death of the Testator (maker of that Will), would disburse / distribute the properties as per the terms of the said Will.

If there is no Executor appointed in the Will, the legatees (beneficiaries of the said Will) can themselves disburse the properties as per the terms of the said Will.

Will Executed in Madras City:

The Indian Succession Act 1925 is applicable to the Indian Christians regarding succession of the property of a Christian, who died intestate (i.e. died without any Will).

The Indian Succession Act 1925 provides certain provisions in case of an Indian Christian or a Hindu who had executed his Will within the City of Madras (i.e. if the Will related property situate within the original jurisdiction of the Madras High Court. That is, the old 100 divisions of the Chennai Corporation area).

Probate of a Will:

If an Indian Christian or a Hindu executed his/her Will and thereby appointed an Executor or many Executors, and such property situate within the old Madras City, then such Will should be produced before the Madras High Court and get it proved and to get a Probate order of that Will. Probate means to prove the execution of the Will and to prove the competency of the maker of that Will (called Testator).

If the Will does not contain any Executor, but that property situate within the old Madras City, then any one of the Beneficiaries of that Will, shall make an application before the Madras High Court, to get a “Letters of Administration of the Will”. It is also the same as in probate, by proving the said Will before the Court.

Mufassil Will:

If the property situate outside the old Madras City area, such Will need not be produced before any Court for any probate or letters of administration. But if any dispute arises, then such Will is to be produced before the concerned District Court and get it proved, through the witnesses of that Will.

Settlement deed:

Sec.126 of the Transfer of Property Act 1882 provides Gift of any property to anyone. 

This section applicable only to Hindus, and Christians. It will not apply to Mohammadens. Mohammadan gifts are called Hiba. Hiba is a Urdu word, and it means gift. As per Mohammedan law, i.e. Shariat law, the gift of property should be immediate one, i.e. the title of the property should transferred in the deed itself and possession also should be handed over on the day of gift itself. 

But in the case of Gift/ Settlement by a Hindu, or a Christian, handing over possession may be postponed to a later date or even after the lifetime of the Settlor/donor.

Settlement and Gift difference:

If the gift of property to the family members, it is called Settlement or Family Settlement. If the gift of property to any other third parties (apart from family members), it is a Gift. Therefore, gift and settlement are synonymous. 

Who are all Family members?

As per the Indian Stamp Act, 1899, the following persons are considered as ‘family members’ to the Settlor, viz, father, mother, husband, wife, son, daughter, grandchildren, brother, and sister. But all the other blood relations are not considered as family members.

Settlement in-presenti

The Settlement called as “in-presenti settlement” which means the Settlor (or the owner of the property) settled and passed on the title of the property to the Settlee on that Settlement deed itself. It is like that of a sale deed, in which the title passes to the buyer immediately.

Conditional Settlement:

Per contra, some Settlement deeds, though the title of the property (ownership of the property) is transferred to the Settlee in that Settlement deed itself, the possession of the settled property is retained by the Settlor himself for his lifetime or for the lifetime of his/her spouse. Here, the title alone is passed on the day of Settlement, but the delivery of possession is postponed to a future event.

Muslim Settlement or Hiba:

Whereas in a Muslim settlement, it is called a Hiba, both title of the property and the delivery of the possession of the property shall take effect in the settlement deed itself. It cannot be spitted as in the case of Hindu settlement. 

That is only difference between a Muslim Settlement or a Hindu/Christian settlement.

Difference between Settlement and Will:

Generally, in Settlement, title and possession would pass on the deed itself. In some case, though title passes immediately, possession would take after some event (i.e. after the lifetime of the Settlor).

But in the case of a Will, both title of the property and the possession of the property would take effect, only after the death of the maker of the Will, called Testator.

Suppose, in a Settlement deed, the Settlor postponed the title as well as the possession to take effect after his/her lifetime, then it is called a Will, though the name given to the document is ‘as if a Settlement deed’. The nomenclature (the name) does not define the deed, but only the contents (recitals) decide it.

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