RIGHT TO PROPERTY AND DISOWNMENT: LAW IN INDIA

Property property property it takes place very important place in every human life. All human being desirous to make their own property in their life for the better standard life style and for its fulfillment every person do very hard working and tried to make more and more property in their names. The property and ownership is most interrelated terms and we all generally know that the word ‘property’ was considered as ancient Greeks, Hindus, Jews, Roman, but it is highly the term property is derived from Latin Word ‘Propertietat’ and it’s also relates French equivalent word ‘Proprious’ and  both implies that  “ a thing owned or possessed.”

Our Indian Constitution of India came into force on 26.01.1950 and in that time it makes the “Right to Property” as our fundamental rights by included in our respected Constitution of India in Part III under Article 19 (1) (f) and Article 31. But in good faith our Parliament passed “Right to Property” is an ordinary legal right under Article 300-A (by the 44th Amendment Act) of the Constitution of India. And later it was found that it was abolished and deleted the “Right to property” which is our inheritance right and natural right in our Part III i.e. fundamental rights of the Constitution of India by 44th Amendment Act, 1978 and considered as our constitutional rights, legal rights and human rights by all. I think we can divide “Right to property” in the below category for its legal provisions

                                                      RIGHT TO PROPERTY

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       Constitutional Law                                                                        Human Rights

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  1. Right to property under Article 19 (1) (f)                                          

  2. Compulsory acquisition of property under Article 31, Part III          

  3. Persons not to be deprived of property save                                      

by authority of law under Article 300 -A

  1. Universal Declaration of Human Rights under Article 17

  2. International Convention on the Elimination of All Forms of Racial Discrimination under Article 5

  3. Convention on the Elimination on All Forms of Discrimination Against Women under Article 16 and also Article 15

  4. Convention Relating to the Status of Refugees

  5. The European Convention on Human Rights in protocol 1 under Article 1

DISOWNMENT

Disownment is very wider concepts but in legal sense we can’t found its legal definition in anywhere. In common sense disownment refers to disown or disinherit someone. It means by disownment we disown someone for whom desirous to take no responsibilities in near future and want to disinherit from own property and also do not like to maintain any type of relationship with that person whom we disown and disinherit from property.

That I think we can understand this concept clearly with the help of example. Suppose “A” and “B” is the parents of “K” and “K” is not minor child son but competent in all. And as per sound competent capacity he is married with someone without his parent’s permission and after marriage starts mental and physical torture and harassment to his parents. Later demanded to his parents ownership in the property and all property to his name but “A” and “B” is old aged person and if they transfer ownership to his son “K” then it is fully chance to his son drove out them to their own house. In that situation, by getting domestic and cruel behaviour from his son in all times with them they are bound to disinherit and disown to his son “K” from his property. And also break all types of relationship with him. They are free from all types of risk and responsibilities from their son in near future.

So, disownment is better concepts for whom who get any way mental torture, harass, emotionally breakdown, physically weak to take any steps and unable to secure property from someone. In this sense property may be movable and or immovable like land, building, apartments, bungalow, firm, bank account saving money, LIC policy, or any type of movable property.

We all know that property divided in two kinds;

  1. Ancestral Property; and

  2. Self acquired property

By ancestral property we all understand that property which is not recognized as self but inherited from father, father’s father, father’s father’s father i.e., father, grandfather, great grandfather, great great grandfather , etc. on the other hand self acquired property implies that self property and self own property acquired by himself other than ancestral.

DISOWNMENT LAW IN INDIA

Unfortunately in law we do not found any law and legal concept relating to the term “Disownment” or “Disinheritance.” Parents can disown their major child by own will or wish in anytime. But in law there is no any definite rule for the concept and its provisions. That there is no any rules and regulations for the concept of the word “Disownment “ but in law relating to the property there is some ingredients and elements for disinherit someone. That in this way we can clear understand about it’s by its importance and drawbacks;

IMPORTANCE OF DISOWNMENT

I think disownment is very important concept and it plays very vital role to secure someone property by the other person. By disownment person can fully secure and satisfy that his valuable property is secure and no one can harm his property. According to me, “right to disownment” must be include in the our constitutional and human rights and its various convention to see in good faith for the full secure safety measures by the legislation, executive and judiciary by making its provisions in law. I think below are the important things which we can noted while we think about the concept of disownment:

  1. Firstly I want to say that according to me disownment is very important because it is disinherit someone from property forever by whom we feel insecure;

  2. Secondly, we can disown and disinherit only competent sound mind capable person instead infant and minor child. It means it is not enforceable if we disown minor child and in that case it is considered as illegal. We can disown and disinherit only those person who is completely sound mind and legally competent;

  3. Thirdly, it controls the criminal offence relating to property like domestic violence, cruelty, murder, criminal breach of trust, misappropriation, land relating cheating, fraud etc; to cease someone rights of inheritance over the property in near future after the death of his/her parents who is/was owner of the property;

  4. Fourthly, by doing this it implies that someone can lost their right to control over the property forever or and possibilities to get ownership in near future through legal heirs;

  5. Fifthly,  after disownment the disowned or disinherited person could not legal claim except ancestral property;

  6. Sixthly, it is formal condition by which renounce one’s rights over the family and other’s members’ due to family dispute or any other reasons to maintain peaceful environment in the family by way of publication of disownment;

  7. Seventhly, owner has a right to disown or disinherit any legal heir own wish;

 

Thus, we can say that disownment is the process by which only disowned from movable and immovable property to someone or disowned from property but parents cannot legally disowned their son and daughter to use their title name. it means only disowned from property not else from paternity and also paternity couldn’t be disowned by the parents towards their children. And there is no any legal procedure to disowned someone except by way of declaratory suit, publication notice, will.

DRAWBACKS OF DISOWNMENT

I think following are the disadvantageous and drawbacks of the concept disownment;

  1. Firstly, there is no any clear legal rules and provisions we found in law;

  2. Secondly, the person who wants to disown and disinherit someone only by the simple process of sworn by an oath or an self declaration Affidavit with public notice at least two local and national newspaper and also by way of declaratory suit;

  3. Thirdly, the person only can disown and disinherit someone from property of self acquired instead of ancestral property. That disowned person can challenge for his ancestral property and he has full rights and powers over the ancestral property. No one can deprived and to take his rights from the ancestral property;

  4. Fourthly, by way of disownment moral responsibility and family responsibility comes to an end’

  5. Fifthly, adult children has no legal right to stay in parent’s house self acquired property while disowned and without desirous to his/her parent’s

So, I think disownment is very important and wider legal issues and after disownment person who disowned face in his/her life several problems and issues relating to socially, financially. But through its disputed between parents and children comes to an end or dissolved.

However as far above discussion, we can say that for monetary problems and family dispute and wants to peaceful life parents disown their adult children. In view of the Supreme Court decision in S.R. Batra VS Taruna Batra, (2007) 3 SCC 169 observing that since the premises which the complainant (Ridhima) claimed to be her matrimonial home, was held by her father in law and mother in law had disowned her husband, she could not claim it as her matrimonial home; thus she had no valid right to reside in the said premises.

And also Smti Raj Kumari VS Preeti Satija (2012) by the Justice Manmohan Singh under Order XII Rule 6 read with section 151 of CPC, it was held that the plaintiff is the owner of the suit property and the plaintiff has no legal duty or responsibility to maintain the daughter in law (wife of disowned son) under the Protection of Women against Domestic Violence Act, 2005.                                                                                                                

In my concluding observation I want to suggest that disownment is plays very vital role to give safety and security of the property of one’s who is owner of the movable and immovable property. Disownment is very separate concept not mentioned in any law. So, in our respected constitution there should be include its provisions by the amendments and to make rules and prescribe law. I think like others right there should be one right must be include in our constitution relating to “Right to Disownment”  with clear provisions and rules relating to right to property.      

                                          Thank you.

                                                                   Created by: Kalpana Bharati Raut (Advocate)

                                                                                       Dibrugarh Bar Association

                                                                                       M.A. (Sociology) LL.M

                                                                                       Email Id: kalpanabharatiadv@gmail.com

                                                                                Contact No- 7086907627                                                                                                         

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