This article is written by Darshika Lodha, a BBA.LLB(Hons.) student of Unitedworld School of Law, Karnavati University. This article deals with the Partition and division of rights and property at the time of partition.

INTRODUCTION

Partition is the division and division of the Hindu Joint Family, which brings the life of a coparcenary to an end. According to Mitakshara School, partition means two things,

Severance of status or interest
the actual division of property by the shares so specified, known as division by metes and bounds. According to the Dayabhaga School of Hindu Law, partition means only the division of property by metes and bounds. At least two coparceners are required to be partitioned.

Subject Matter of Partition

Only the coparcenary can be separated into the partition. Separate resources can not be subject to partitioning. To determine which property is available for partition, the following provisions must be made for joint family debts;

the personal debts of the father, not contaminated by immorality.
Maintenance of dependent female members and disqualified heirs.
Marriage of unmarried daughters.

Kinds of Property Partitioned

1. Self-Acquired Property

Self-acquired property is the property that a person acquires from his own hard-earned money and is not inherited from his forefathers. Any land obtained by donation or may also be deemed to be a self-acquired land. Self-acquired property can not be partitioned during the lifetime of the person who acquired it. A person who has acquired the property may, in his lifetime, make a Will to whom he wants to give his property. If the owner of the property dies without leaving a will, the property is transferred to the heirs of Class 1.

2. Ancestral Property

Any property acquired by the forefathers of a person shall be regarded as ancestral property. This property must be four generations old.

A person who is born in that family has a vested interest in the land, which means that, by his birth in the family, he has inherited the land and that property can be divided.

Property Liable for Partition

Indistinguishable property, i.e. property which comes down to one member only, either by custom or by any provision of law or by terms of the grant.
Indivisible property by nature, e.g. ponds, stairs, passageways.
Family idols and trusts that are the object of a warship
Separate property of a member
Places of worship and devotion or land devoted to religious and charitable purposes.
The ornaments and the clothing materials are given to the wives of the coparceners.

Deductions and Provisions

Certain provisions must be made on the partitionable property before any partition is affected.

Debts incurred by the joint family.
Personal debts of the father have not been incurred for illegal or immoral purposes.
Maintenance of female dependents and disqualified heirs.
Marriage of unmarried daughters of the last male holder, but not of collateral.
Expenses for the funeral ceremony of the widow and mother of the last male holder.

Common Misconception related to Property Partition

The very first myth in people’s minds is that there might be a Will in the case of Ancestral Property that is not real. In the case of Ancestral Property, a person has a vested interest in it, that is, by giving birth to him in that family, he has the right to property. This kind of property is divided according to the laws of that particular religion. A Will can not be made in such cases, Will shall be made in the case of self-acquired property
The second misconception borne by people is that the nominee becomes the owner of the property once it is transferred to the nominee. This is not the case, however. The candidate is the trustee of the house.

Persons who have a Right to Partition and Share

The following persons may claim partition and have the right to participate in the partition-

Father– In Mitakshara school, the father not only has the right to partition, but also the power to divide the sons. The father may also impose a partial division between the sons, but he must act bona fide and not unfair to anyone. A re-opening suit, a partition can take place in the event of partiality or an unfaithful partition by the parent.
Son, grandson, great-grandson– Under Mitakshara school, son, grandson, and great-grandson have the right to seek a partition.
Son born after partition – According to Vishnu and Yajnavalkya, the partition should be re-opened to give a share to the son born after partition. However, Gautama, Manu, Nerada had a different view of the same thing.

Before the 2005 amendment, females could not be coparceners, but some females, such as the mother, the father’s wife, and the grandma, had the right to share at the time of the partition.

Case Law

In Pachi Krishnamma v. Kumaram, in this case, the daughter asserted his share as equal to that of the son in the division of joint family property, but failed to prove her claims that the daughter should have the same share as the son. However, following the 2005 amendment to the Hindu Succession Act, it gave the power to a daughter to have the right to seek partition and to claim an equal share as a son in the partition of the joint family property.
In Danamma, Ors. V. Phulavati & Ors, in the case of 1 February 2018, the Hon’ble Supreme Court of India held that: “Filles have equal rights in ancestral property even though they were born before the enactment of the Hindu Succession Act.”

CONCLUSION

It can, therefore, be concluded that partition is a tool that performs the function of bringing the common Hindu family to an end. Through, a partitioning process, the joint family property is the self-acquired property of each coparcener based on its shares. Partition may be rendered either by dividing the property by metes and bounds or by the division of the joint status or by both. Precisely, the division takes place in the true sense only when the collective status of the Hindu Undivided Family comes to an end.

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This article is written by Darshika Lodha, a BBA.LLB(Hons.) student of Unitedworld School of Law, Karnavati University. This article deals with Vicarious Liability in Gaurdian Ward Relationship.

INTRODUCTION

Vicarious liability is a condition in which a party is partly or wholly liable for the unlawful conduct of a third party. The third party is also part of this obligation. Vicarious liability may arise in situations where one party is held responsible (and the third party has control) and is negligent in carrying out that responsibility and in exercising that control. In the case of vicarious liability, this is the responsibility of a person who is liable for the act of another person. The common example of such liability is:

Liability of principal for the tort of his agent.
Liability of partners of each other tort.
The company and its directors.
Owner and Independent Contractor.
Parent’s liability for the tort of their ward.
Liability of the master for the tort of his servant.

Liability of Parents in Children’s Tort

Parents have a fundamental right to care for their children, as recognized by the Supreme Court, the right comes with a responsibility to supervise and monitor the activities of the child. Courts have consistently held that States have a legitimate interest in fostering public health by keeping parents responsible for failing to perform that responsibility. This is the basis on which the courts comply with the laws on parental responsibility. As a general rule, a parent or guardian can not be held liable for the wrongdoing of a child. There are two exceptions to this rule:

When the child is the servant or agent of the father, the father is vicariously responsible for the act of the infant. It must be taken into account that, in such a situation, the father is liable for the wrong of his son, not as his parent, but as employer or principle.

In the case of Hagerty v Powers (1885), in Haggerty, an eleven-year-old boy shot and wounded another child. The plaintiff argued that the father “leave his youngest child to suffer the loss of a pistol” due to negligence and carelessness in handling the pistol. Despite these terms, the court also found that the parents were not financially liable for their son’s actions.

When a father, by his own negligence, gives his child the opportunity to commit a wrong, he is liable.

In the case of Bebee v. Sales, the father supplied his son, who was 15 years old, with an airgun. Also, after so many allegations of negligence caused by the gun, he allowed the gun to stay with the boy who unintentionally wounded the complainant. That’s what the father held responsible for.

A teenager who brutally and negligently smashed his car into someone’s vehicle committed an offence under common law, but his parents would not have been held liable if they had no reason to know that he was driving negligently. Yet this left the injured without a means of redress for their losses. Today, all 50 US states have laws of some kind that keep parents responsible for damages incurred by their children’s abuse. Under many of these laws, a parent’s lack of knowledge of the child’s conduct is irrelevant, and the parent is liable for the harm caused by the child’s negligence or wrongdoing. This is a form known as a vicarious obligation.

Parent’s Civil Liability towards their Child

Each state in the US has its own law on the civil liability of parents for the acts of their children. Parents may be held responsible for the harmful actions of their children in the same way that employers are responsible for the harmful actions of their employees. This concept of law is commonly referred to as vicarious liability. Parents are therefore indirectly or vicariously liable for damages incurred by their child. There are different parents’ civil liability and ways in which parents can be forced to pay damages for their children’s actions.

Liability for Compensating the Victim

Several states rule that parents are financially responsible for damages incurred by their children. When the child reaches the age of 18 years (no longer a minor) the parents will not be responsible for any damages due to their civil wrongs. Upon entering the age of majority, the rights of parents over a minor are revoked, the parent can no longer be held responsible for the act of the child because the legal relationship between the child and the parent has ended. In certain US states, the government has placed a cap on the amount that parents will be liable for. Civil liability varies from state to state. Many of these are actions that require the liability of parents. They are:

Vandalism of government or school money.
Destruction of national and state flags, cemetery headstones, public buildings or historic landmarks.
Property destroyed in crimes of hatred based on race or religion.

Personal damages incurred in connection with such acts shall result in the parent being liable for damages.

Negligent Supervision

The parent shall be liable for the negligent act of the child if the parent clearly knows or has reason to know the civil wrong that is necessary to control the child and the parents have played a negligent role in their part by failing to take reasonable measures to prevent the child from doing so. In the case of Robertson v. Wentz, the Court held that “the capacity to influence the child rather than the relationship as such is the basis for a finding of liability on the part of the parent. Failure to do so is fatal to the claim of legal responsibility. The capacity to regulate is derived from the relationship between the parent and the minor child, as is the relationship between the custodian and the custodian; nevertheless, the circumstances surrounding the specific case can be disproved.

CONCLUSION

In particular, we recognize the different situations in which a minor can be prosecuted. As discussed, a minor must be regarded on the basis of his or her age of rationality. The parent, guardian or others who are in the custody of the child shall be held liable for the civil wrong done by him or her and for the damages and injuries caused by him or her. A parent may be liable for penalties or compensation for damages. If the child is less than 18 years of age, the parents will be held liable for their civil wrongs. If the child has reached the age of majority, the parents will not be liable for any damages wrongfully incurred by the child.

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This article is Preeti Bafna I’m doing BBA L.L.B from Unitedworld School of Law, Karnavati University. The doctrine of comes into the picture when there is a conflict between the different subjects in different lists. There is an interpretation of List 1 and List 2 of the Constitution of India. Pith and Substance mean the true nature of law. The real subject matter is challenged and not its incidental effect on another field.

INTRODUCTION

Pith means ‘true nature’ or ‘essence of something’ and Substance means ‘the most important or essential part of something’. The doctrine of Pith and Substance says that where the question arises of determining whether a particular law relates to a particular subject (mentioned in one List or another), the court looks to the substance of the matter. Thus, if the substance falls within Union List, then the incidental encroachment by the law on the State List does not make it invalid. This is essentially a Canadian Doctrine now firmly entrenched in the Indian Constitutional Jurisprudence. This doctrine found its place first in the case of Cushing v. Dupey. In this case, the Privy Council evolved the doctrine, that for deciding whether impugned legislation was intra vires, regard must be had to its pith and substance.

Need for the Doctrine of Pith and Substance in the Indian Context

The doctrine has been applied in India also to provide a degree of flexibility in the otherwise rigid scheme of distribution of powers. The reason for the adoption of this doctrine is that if every legislation were to be declared invalid on the grounds that it encroached powers, the powers of the legislature would be drastically circumscribed.

“It is settled law of interpretation that entries in the Seventh Schedule are not powers but fields of legislation. The legislature derives its power from Article 246 and other related articles of the Constitution. Therefore, the power to make the Amendment Act is derived not from the respective entries but under Article 246 of the Constitution. The language of the respective entries should be given the widest scope of their meaning, fairly capable to meet the machinery of the Government settled by the Constitution. Each general word should extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. When the vires of enactment are impugned, there is an initial presumption of its constitutionality and if there is any difficulty in ascertaining the limits of the legislative power, the difficulty must be resolved, as far as possible in favour of the legislature putting the most liberal construction upon the legislative entry so that it may have the widest amplitude.”

Important Supreme Court Judgments on the Doctrine of Pith and Substance

There are hundreds of judgments that have applied this doctrine to ascertain the true nature of the legislation. In the present post, I will discuss some of the prominent judgments of the Supreme Court of India that have resorted to this doctrine.

1. The State of Bombay And Another vs F.N. Balsara – This is the first important judgment of the Supreme Court that took recourse to the Doctrine of Pith and Substance. The court upheld the Doctrine of Pith and Substance and said that it is important to ascertain the true nature and character of legislation for the purpose of determining the List under which it falls.

2. Mt. Atiqa Begam And Anr. v. Abdul Maghni Khan And Ors. – The court held that in order to decide whether the impugned Act falls under which entry, one has to ascertain the true nature and character of the enactment i.e. its ‘pith and substance’. The court further said that “it is the result of this investigation, not the form alone which the statute may have assumed under the hand of the draughtsman, that will determine within which of the Legislative Lists the legislation falls and for this purpose the legislation must be scrutinized in its entirety”.

3. Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Ors.

– Pith and Substance has been beautifully explained in this case:

“This doctrine is applied when the legislative competence of the legislature with regard to a particular enactment is challenged with reference to the entries in various lists. If there is a challenge to the legislative competence, the courts will try to ascertain the pith and substance of such enactment on a scrutiny of the Act in question. In this process, it is necessary for the courts to go into and examine the true character of the enactment, its object, its scope and effect to find out whether the enactment in question is genuinely referable to a field of the legislation allotted to the respective legislature under the constitutional scheme.

This doctrine is an established principle of law in India recognized not only by this Court, but also by various High Courts. Where a challenge is made to the constitutional validity of a particular State Act with reference to a subject mentioned in any entry in List I, the Court has to look to the substance of the State Act and on such analysis and examination, if it is found that in the pith and substance, it falls under an entry in the State List but there is only an incidental encroachment on any of the matters enumerated in the Union List, the State Act would not become invalid merely because there is incidental encroachment on any of the matters in the Union List.”

Conclusion

The doctrine has been applied in several instances to hold the true spirit of the law framed by the state government while preserving the sovereignty of the Central government. It thus helps maintain the federal balance in the Indian scheme of things.

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This article is written by Gaurav Lall pursuing BBA LL.B. (Hons.) at United World School of Law. The article speaks about the dissolution of the partnership firm and the ways of dissolution. The significant consequences of dissolution are also specified with respective sections of the Indian Partnership Act, 1932

INTRODUCTION

Dissolution of partnership firm is different from the dissolution of partners which is defined under Section 39 of the Indian Partnership Act, 1932. It defines the dissolution of partnership among all the partners of a firm. When all the activities regarding business discontinue and all the activities related to profit and loss are settled among the partners by paying off the debts is called dissolution of the firm. When a partner agrees to continue the same company even after the retirement of a partner then it is called dissolution of partners. As the firm is still continued by the partner but the partnership between the partners are finished. Dissolution of the firm leads to the dissolution of partners. It is a contractual relationship among the partners which works with the firm. If the firm gets dissolved then the partnership among the partners is also dissolved.

The Indian Partnership Act, 1932 states dissolution of partnership firm in different ways:

Section 40 defines dissolution by agreement.

Section 41 defines compulsory dissolution.

Section 42 defines dissolution on the happening of certain contingencies

Section 43 defines dissolution by notice of partnership at will.—

Section 44 defines dissolution by the Court

Important Consequences of Dissolution

1. Continuing liability of partners after dissolution (Sec. 45)

According to the Section 45, the partners stay accountable as such to third parties for any act achieved by means of any of them which were an act of the organization if completed before the dissolution, until public notice is given of the dissolution.

In the absence of public notice of dissolution, however, the property of a partner, who dies, or who is adjudicated an insolvent, or in case of a retiring partner, who isn’t regarded to the outsiders a partner, is not liable for the acts executed after the date on which he ceases to be the partner.

2. Continuing authority of partners for purposes of dissolution (Sec. 47)

After the dissolution of the corporation or the firm the authority of every partner to bind the company, and different mutual rights and responsibilities of the partners, continues to the point as may be necessary for the following two purposes:

(a) To wind up the affairs of the company, e.g., eliminating the assets, realising amount due from borrowers and paying to lenders and so on; and

(b) To complete transactions begun however unfinished at the time of the dissolution, e.G., taking shipping of the goods ordered before dissolution and paying to buy them.

The firm, however, is not always bound through such acts of a partner who has been adjudicated insolvent.

3. Right of partners to implement or enforce dissolution (Sec. 46)

On the dissolution of a company, every partner or his representative is entitled to have the assets of the firm realised and applied in payment of the money owed and liabilities of the company, and to have the surplus distributed among the partners or their representatives in accordance of their rights.

4. Liability to share personal profits (Sec. 50)

As long the affairs of the dissolved company are in the process of winding up, it is nevertheless the duty of each partner now not to make any personal earnings out of transactions regarding the firm. A partner, therefore, must account to the company for every benefit so derived through him and have to proportion or divide it with different partners.

5. Return of premium after dissolution (Sec. 51)

Where a partner has paid a premium on entering into a partnership for a fixed term, and the firm is dissolved earlier than the expiration of that term, that partner shall be entitled to repayment of ‘rateable amount of premium’ for the unexpired period except wherein the dissolution has been caused:

(a) By the loss of life of a partner;

(b) By the misconduct of the partner so admitted, or

(c) By mutual agreement of all the partners containing no provision for the return of premium.

6. Settlement of accounts after the dissolution of the company

Section 48 of the Indian Partnership Act defines the approaches to settling the accounts of the company. The company will pay all the losses inclusive of the deficiency of the capital out of the earnings or extra profit and then from the partner’s capital and then by the partners individually in their profit sharing ratio.

The company applies its assets inclusive of any contribution to make up the deficiency for paying to the third party and then for paying any loan or advances by the partner and lastly for paying back their capitals and if any surplus left after all this then it will be divided between the partners in their profit sharing ratio.

7. Agreements in restraint of trade

Section 54 of the Indian Partnership Act defines the agreement in restraint of trade. It means that when one party agrees with the other party to restrict his liberty to carry on the specific trade even in the present or in the future. This section defines that partners in expectancy of the dissolution of the firm make an agreement or settlement that few or all the partners will not carry any business similar to that of the company even for a particular period or within specific local limits.

CONCLUSION

This article concludes that the Indian Partnership Act, 1932 provides provisions regarding the dissolution of the firm. Dissolution of a partnership firm means dissolution of the relationship between all the partners of the firm. That means it’s the end of the existence of the firm and no further business shall be done by the company apart from the activities related to the closure of the firm. With the dissolution of the firm, there are certain effects regarding the same as the company have to close the books of account, all the liabilities must be settled by the partners and the profit and losses to be shared by the partners as per the terms of the agreement.

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This article is written by Ishika Gupta pursuing BBA L.LB from Gitarattan International Business School. This article aims to discuss in detail the general rules of succession of Hindu male as per Hindu Succession Act,1956.

INTRODUCTION

The two main systems for inheritance under Hindu law are Dayabhaga and Mitakshara. Both had different rules for inheritance of the property. While Dayabhaga was prevalent in Bengal and its adjoining areas Mitakshara was prevalent in the rest of the country. To bring uniformity in the application of general rules The Hindu Succession Act was applied on June 17, 1956. The main aim was to bring the changes in the rules of succession that were long demanded due to a change in social and economic perspectives of the people.

Meaning

Succession in general means the act of following or passing the objects, places etc in a particular series. As per the Indian law, succession means the succeeding or passing of rights over property and other things from one person to another. When a person is alive he is the master of the property vested in him but after his demise, it has to be passed to someone else. However, this passage or redistribution of property among the other family members is subject to many rules under The Hindu Succession Act,1956.

Types

Generally, there are two types of succession mentioned below:

1. Testamentary Succession: Whenever a person dies leaving behind his will he is free to choose the

2. Intestate Succession: It is the opposite situation i.e. when the person dies without making a will the property will be distributed among the members as per the law of inheritance. As per Section 3(g) of HSA, “a person is deemed to die intestate in respect of property of which he or she has not made a testamentary deposition capable to taking effect”. The law related to intestate succession deals with matters like who is entitled to property i.e. who are the heirs, if there is more than one heir then how will the property be distributed. Heir has been defined in Section 3(f) as a person who is entitled to succeed to the property intestate under the act.

Section 8 to Section 13 lay down the general laws of succession to the property of a Hindu male dying intestate. Section 8 talks about the rules of succession that are applicable when a Hindu male dies intestate after this act came into force.

Rules of Succession

Section 8 says that the dissolution of the property of person dying intestate must be as per the series laid down below. It is to be noted that property under HSA could be the separate or coparcenary property of the person, joint family property.

1. Firstly, it will pass upon the person who is mentioned in the list of Class 1 heirs of the act,

2. Secondly, if no person from class 1 is present it will pass onto persons mentioned in Class 2,

3. Thirdly, if no one from any of the class is there to succeed the property it will be distributed to the agnates as mentioned in Section 12,

4. Fourthly, if none of the people mentioned in the above three lists is present then it will devolve to cognates as mentioned in Section 13.

Class I Heirs

In simple words, if Hindu male dies intestate, the property entrusted in him is distributed among the members mentioned in class 1 equally and there is no preference order. The members mentioned in class 1 schedule are deceased person’s son, daughter, widow, mother, son of a predeceased son, daughter of predeceased son, son of a predeceased daughter, daughter of a predeceased daughter, widow of a predeceased son, son of predeceased son of a predeceased son, daughter of predeceased son of a predeceased son, widow of predeceased son of a predeceased son. Under this, the adopted child is also deemed as a natural child and the children born are out of the void or voidable marriage are also considered as legitimate children. Since the widows are also class 1 heirs but if there are more than 1 heir then the widows will inherit the property jointly. Married daughters are also eligible to inherit. Mother is always entitled to inherit the property, she can be divorced or remarried also as mentioned in Jayalaxmi v Ganesh Iyer.

Class II Heris

If at the time of distribution none of these people is there in the family then the members of class 2 are looked upon. But there is preference order among these and the people in one order are given property equally. As held in Karumaswami v Nanjappa the class 2 heirs are divided into 9 entries and all of them inherit cumulatively. If there are more than 1 brother or sister they inherit simultaneously. However full blood is preferred over half-blood whereas uterine blood is not counted.

Agnates

If none of the heirs under class 1 and class 2 are available then the property moves towards agnates. Agnates are the person who by blood or adoption are wholly related through males. Hence it is clear that the people are related by blood or adoption and not by marriage as mentioned in Section 3(g). There is no degree of the relationship under agnates and both male and female can be agnates. Also, there is no difference between full or half-blood.

Cognates

If agnates are also not present for dissolution then the cognates come into the picture. Cognates, as explained earlier, are related through females. Hence it does not matter how many women are there in the series, once one female is there the descendants are recognised as cognates. Similar to agnates cognates are also related through blood and adoption and not marriage.

While Section 8 and 9 discuss the preference order of class 1 and class 2 heirs, Section 10 talks about the share of each person when there are more than one persons to inherit simultaneously.

Section 12 lays down some rules for distribution of property among agnates and cognates:

Rule 1. Whenever there are more than 1 agnate or cognate the one who has less or few ascent degrees is preferred i.e. among descendants, ascendants and collaterals the descendants are preferred and so on.

Rule 2. When there are people with same degree of ascent the one with less degree of descent is preferred over the other.

Rule 3. If none of the heirs matches above rules then both will inherit the property equally.

CONCLUSION

Hence it is clear from the above information that the order of succession of Hindu male dying intestate is class 1 heir, class 2 heir, agnates and cognates. However, among these categories, there are different rules according to which the property is distributed among them.

Whenever there is no will made by the deceased he is said to dying intestate and in such case, the Hindu Succession Act comes in place and court checks the heirs as per the act and distributes the share to the heirs as per the rules.

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This article is authored by Pankhuri Pankaj, a 3rd year student pursuing BA-LLB (Hons.) from Vivekananda Institute of Professional Studies, affiliated to GGSIPU. She is currently interning with Lexpeeps. This article summarises certain key provisions of “Human Trafficking”.

INTRODUCTION

Human Trafficking is the illegal practice or action of transporting people from one country to another or to a different area for the purposes of forced labour or sexual exploitation. According to the definition of Human Trafficking in the Trafficking in Persons Protocol, there are three constituent elements in trafficking: the Act which means ¨what is done¨ and it includes recruitment, transportation, transfer, harbouring or receipts of persons, the Means which means ¨how it is done¨ and it includes the threat or use of force, coercion, abduction, fraud, deception, abuse of powers or vulnerability, or giving payments or benefits to a person in control of the victim, and the Purpose which means ¨why it is done¨ and it includes the exploitation of the persons of others, sexual exploitation, forced labour, slavery or similar practices and the removal of organs.

Article 3 of the Trafficking in Persons Protocol provides consistency and consensus around the world on the phenomenon of trafficking in persons. Article 5 of the Protocol requires that the conduct set out in Article 3 should be criminalized in domestic legislation. It is not necessary that the domestic legislation should follow the language of the Protocol precisely, but it should be adapted in accordance with the domestic legal systems to give effect to the concept contained in the Protocol.

History of Human Trafficking in the World

According to the definition of Human Trafficking, if any person, of whatever gender or age, is taken somewhere against his or hell will, without full information about what that person may be getting into, it is human trafficking.

To understand the history of human trafficking, one can understand it through the following tiers:

1. African Slave Trade

The earliest form of human trafficking that can be traced leads to the ¨African Slave Trade¨. Different African groups served as both, an item of trade and middlemen, for the American and European continents that were involved as buyers. This trade is the earliest memory in the history of human kind to prove human trafficking.

This trade was both legal and government-tolerated, prior to the first law against slavery by the British in 1807 followed by the United States suit in 1820 which banned slavery over 40 years before the American Civil War.

2. White Slavery

White slavery can be defined as the procurement of a white female against her will for prostitution, by use of force, deceit, or drugs. It came into the picture after the African Slave Trade and gained attention after which the government began to cooperate to fight it. The International Conference against white slavery was organized in the year 1899 and 1902 in Paris and in 1904, the International Agreement for the Suppression of the ¨White Slave Traffic¨, was signed, yet the criminalization of white slavery was not legalised until 1910.

3. World War I

Much needed attention was drawn towards the efforts against white slavery with the first world war crisis. However, the first international organization of nations, the League of Nations, arose out of the First World War, and it was the first time agreements could be made within a set of organizations.

The mandates given to the various Allied Powers over nations in Africa and the Middle East brought attention to the international trafficking in all women, not simply white women; and additionally in children, both male and female. In 1921, 33 countries at a League of Nations international conference signed the International Convention for the Suppression of Traffic in Women and Children. At this time, human trafficking only covered trafficking for purposes of sexual exploitation and prostitution.

4. MODERN HUMAN TRAFFICKING

United Nations criminalized trafficking under the protocol of Transnational Organized Crime in 2000, still, at the very least 510, known trafficking flows all over the world. In recent years forced labour mitigations have been increasing which in turn has decreased the share of trafficking for sexual exploitation. In the year 2007, 32% of trafficked persons were forced labour migrants, and 4 years later, the share reached 40%. At the same time, trafficking in women is decreasing steadily, from a 74% share in female victims in 2004 to 49% in 2011. Unfortunately, it is matched by an increase in trafficked girls, from 10% up to 21% in 2011.

Development of Human Trafficking

In the past decades, human trafficking was carried out in various forms on various magnitudes, from African slave trade to Modern human trafficking, the growing international phenomenon of human trafficking has most certainly walked a long path and unfortunately, still continues to exist even in the year 2020.

After existing for decades, this illegal activity is usually seen to have originated from countries in Southeast Asia, Eastern Europe, and Sub-Saharan Africa, and the main cause of human trafficking in these origin countries stems from adverse circumstances like religious persecution, political dissension, lack of employment opportunities, globalization, poverty, wars, and natural disasters. Here, the recruiters seek migrants through various mediums, like the internet, employment opportunities, agencies, media, and local contacts, and the migrants view the services of the smuggler as an opportunity to move from impoverished conditions in their home countries to a more stable and developed environment. Although these victims often leave their destination country voluntarily, the majority are unaware that they are being recruited for a trafficking scheme. Some may be kidnapped or coerced, but many are bribed by false job opportunities, passports, or visas, for various types of exploitations like sex slavery, bonded labour, forced labour, prostitution, child labour, organ transplant etcetera.

Although this inhumane practice unfortunately not very new to the world, concerted efforts specifically to curtail human trafficking started to emerge in the mid-1990s, when public awareness of the issue also emerged, and the first step taken to eradicate this problem was to convince multiple stakeholders that human trafficking was a problem warranting government intervention. Soon the first comprehensive federal legislation specifically addressing human trafficking, the Trafficking Victims Protection Act of 2000 (TVPA) was passed and many federal agencies were given the oversight of human trafficking, including the Departments of Justice, Homeland Security, Health and Human Services, and Labor and the U.S. Agency for International Development. The primary U.S. agency charged with monitoring human trafficking is the State Department’s Office to Monitor and Combat Trafficking in Persons (also called the trafficking office).

In addition, many governmental entities throughout the world started getting actively engaged in the attempt to stop or at least slow the activity of trafficking in humans, and in 2000 the UN finally established the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, which provided a commonly accepted working definition of human trafficking and called upon countries to promulgate laws to combat the practice, to assist victims, and to promote coordination and cooperation between countries.

Magnitude of Human Trafficking

Currently, 12.3 million adults and children are forced into labour, bonded labour, and forced prostitution, and out of this number, 56 per cent consist of Women. 1.8 person per 1000 persons worldwide is a victim of human trafficking today and this number is increasing to 3 persons per 1000 persons in Asia and the Pacific. These victims are trafficked both within and outside the international borders and these victims consist of both migrants and internally displaced persons.

Till date, there still exist 62 countries which are yet to convict a trafficker under the U.N. Protocol to Prevent, Suppress and Punish Trafficking in Persons, 2000 and 104 countries are yet to establish laws or regulations regarding human trafficking in the country. According to estimates, internationally 32 billion dollars are generated every year through human trafficking concluding that every year 32 billion dollars get traded illicitly in the world with no taxes being paid. According to the US Department’s Annual Trafficking in Persons Report, 2013 and the State Department’s Annual Trafficking in Persons Report, the global financial crisis has increased the worldwide trade in trafficked persons, especially in Africa and slaps six African nations on the blacklist of countries not meeting the minimum standard of combating trafficking.

According to the report mandated by Congress, data and statistics from 175 countries around the world show that the amount of human trafficking goes on within their own borders, which amounts to modern slavery. It has been found that 79% of the women trafficked are subjected to sexual exploitation, and these victims are usually trapped by women from their own village and known persons on the facade of giving them a better life.

The huge number that illustrates the illegal trade of human trafficking quite efficiently portraits the magnitude of human trafficking in the world but unfortunately, that is not where this ghastly act end. According to many reports, many countries do not report the exact number of trafficking in their country as they fear that their country may be ranked in the list of defaulting countries. Until the government submits its exact statistics on the extent of trafficking and the conviction statistics, it becomes difficult not only to assess the magnitude of trafficking in the world and in each country but also to take measures to check the problem.

Human Trafficking in India

Although the practice of Human Trafficking has been strictly banned under the Indian Law, yet this illegal activity exists in quite a shameful magnitude in the country. The most prominent practice of human trafficking in the country where women are considered goddesses is the trade of women and girls for the purpose of commercial sexual exploitation or forced marriages.

According to estimates, 20 to 65 million people get affected by human trafficking in India and this trade takes place both in and out of the country. A most common sight is women getting transported from neighbouring countries for sexual exploitation and girls from the country getting trafficked to the Middle-East for the same purposes.

Although the country is home to the largest democracy in the world, the reason for these illicit activities is found to be the widespread poverty in the country and lack of proper education. These shortcomings have resulted in a myriad of human rights violations, especially against the women and girls in the society where patriarchy prevails.

Even though this unjustified unfair practice of human trafficking still continues to exist in the world as a social stigma and as a blot on the developing society, but through time this illicit activity has gone through many folds of recognition and has been able to achieve a worldwide awareness, with appropriate laws enforced against it, which can possibly help erase this practice of unnecessary exploitation of the vulnerable and make the world a better place to exist in.

The case analysis is written by Nimisha Mishra, a second-year student of NALSAR University of Law. In this case comment, the author has briefly explained the case of State of Maharashtra v. Mayer Hans George.

INTRODUCTION

The entire criminal law is based on the concept of mens rea or mental element of the offender. Mens rea, of the offender, is a state of mind capable of committing the crime. To commit a crime, there should be the presence of bad or malign intention.

Case Number

218 of 1963

Equivalent Citation

1965 AIR 722, 1965 SCR (1) 123

Bench

Hon’ble Justice K. Subbarao, Hon’ble Justice N. Rajgopala Ayyangar, Hon’ble R. Mudholkar.

Date of judgement

24^th August, 1964

Relevant Act

Foreign Exchange Regulation Act, 1947

Relevant Section

Section 8(1), Section 23 (1-A) of Foreign Exchange Regulation Act, 1947. Section 168 (8) (1) of the Sea Customs Act.

Facts of the case

The respondent, Mayer Hans George, a German smuggler, left Zurich by plane on 27^th November 1962 with 34 kilos of gold concealed on his person to be delivered in Manila. The plane arrived at Bombay on 28^th of November. The Customs Authorities, as a part of their duties, inspected to check if any gold was dispatched by any traveller and looked through George, seized his gold and accused him of the offence under sec 8(10) and 23(1-A) of the Foreign Exchange Regulation Act. This section of FRTA is read with a notification dated November 8, 1962, of the RBI which was published in the Gazette of India on 24^th of November. George was initially acquitted by the High Court, but the further appeal was made by the state in the court of law.

Issues presented before the court

Whether the respondent is guilty of bringing gold in India under sec 8(1) and 23(1-A) of the FERA which was published in the Gazette of India on 24^th November 1962?

Ratio of the case

The state of Maharashtra contended that the act was passed keeping in mind the pirating of gold since it has become the major financial concern of the nation. Moreover looking at the importance of the act it can be inferred that the mens rea is an irrelevant element in assuming the culpability of the offender. The strict adherence of the act refutes such assumptions and demonstrates that mens rea is not a fundamental element of the offence. It was further contended that the warning was already given on 8^th November, 1962 by the Board of Revenue; therefore it can be assumed that offender consented to bring old in India. However, in the present case, George did not mention the quantity of gold with him in the Manifest. The respondent that is George has, therefore, contradicted the act and hence his offence should be taken into consideration.

It is a general provision that any new rule is published in the Official Gazette. The purpose of publishing a new act in official Gazette is to create awareness among the people in large about the passes act. It is to be noted that the particular act was published on 24^th November, 1962 and by 25^th November, 1962 the said act was deemed to be notified to the concerned citizens by then.

The notification published on 8^th November states that the act is not enforceable on the traveller. But the same notification was overruled by the notification published on 24^th November, which makes the act enforceable on travellers as well. Therefore the notification dated on 8th November will not be deemed to be in effect since a new notification has already been published in Gazette.

However, the respondents were of the view that mens rea is a fundamental element of any criminal offence and George was not aware of the notification published by the Reserve Bank. The notice could be said to be enforceable when it comes to the knowledge of the people who is influenced and affected by it. Another point raised by the responded was that the warning requires exposure was not pertinent to the traveller carrying gold. It was contended that a person who was not aware of the Indian Provision and has no intention to bring gold in India cannot be said to possess the intent to break the law and hence should not be prosecuted under the act.

Final decision

After hearing the arguments from both the sides, judges were of the view that any product which has gold attached to it and the person carrying it will be prosecuted, this whole process seems superfluously cruel and nonsensical.

However, the court further said that even though mens rea is an essential requirement to commit a crime but regardless of that the statutory provision can exclude the mental element. The express words of the statute can exclude the mens rea as an essential ingredient of the crime. This may be done for various reasons, for instance, to promote public welfare and activities or to eradicate social evils. The statute which complies strict liability helps the offender to assist the state in the enforcement of the law.

When the provision of the act clearly and explicitly prohibits carrying a certain amount of gold and then if a person chooses to carry gold more than the specified amount without disclosing it in the manifest than he will be held liable.

The further said that it cannot interfere with the sentenced passed by the lower courts unless they are in violation of the principle or are illegal. But since this case has some unusual characters therefore George was convicted but his years of imprisonment was reduced.

Conclusion

As it has been inferred from M.H v. George’ case that phraseology of the statute can cover an offense under strict liability and bar the mental element . Therefore the nature of the mischief at which the arrangement is pointed in some cases albeit strict liability is deduced strictly on the facts of the case where is depicted as a grave social malevolence.

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This case analysis is written by Anurag Maharaj, a student of law at Lloyd Law College, Greater Noida. I have tried to describe the famous and controversial case Gian Kaur vs The State of Punjab, 1996.

Gian Kaur vs The State of Punjab.

Bench

Justice J.S. Verma, Justice G.N. Ray, Justice N.P. Singh, Justice Faizanuddin and Justice G.T. Nanavati.

Facts of the case

Constitutional provisions involved in this case:-

1. Article 21 is the protection of life and personal freedom No person shall be deprived of his life or personal liberty except as provided for in the law. The Article forbids the deprivation of the aforementioned rights except in compliance with a legal procedure.

2. Indian Penal Code Section 306, Abetment of suicide:- If any person commits suicide, whoever abets the execution of such suicide, shall be punished with imprisonment of any form for a period which may extend to ten years, and shall also be liable to fine.

3. Indian Penal Code section 309 criminalizes attempted suicide as well as suicide aid.

Section 309 states: Anyone who attempts to commit suicide and acts against the commission of such offence shall be punished with simple imprisonment for a term of up to one year, or with fine, or both.

Gian Kaur, Harbans Singh and Kulwant Singh were all involved in this case. Gian Kaur and her husband Harbans Singh had been charged with abetting their daughter-in-law Kulwant Singh’s suicide. They both wanted their son to re-marry with someone else because of selfish intentions to acquire dowry so they abetted this crime. They had a strong intention of seeing her dead.

The Trial Court challenged this. It came up before the High Court on appeal. On the ground that Section 306, IPC is unconstitutional, the appellants’ conviction was assailed.

Judgement

It was held that under Article 21 the “right to life” would not include the “right to die” or the “right to be killed”. The ”right to death” is inherently inconsistent with the ‘right to life. ”Right to life is a fundamental right expressed in Article 21, but suicide is an immoral end or termination of life and is inconsistent with the principle of the right to life.

The court, therefore, ruled that Section 309 of the Indian Penal Code (1860), which punishes a person convicted of attempting suicide, is not in violation of Articles 14 and 21 and is therefore not unconstitutional. And this is quite a controversial issue.

Pursuant to Section 306, Indian Penal Code, 1860, appellants Gian Kaur and her husband Harban Singh were convicted by the Trial Court and each sentenced to six years of rigorous imprisonment and fines of Rs. 2,000, or, by default, additional rigorous imprisonment for nine months, for Kulwant Kaur’s commission of suicide.

The conviction of both was upheld on appeal to the High Court but Gian Kaur ‘s sentence alone was reduced to rigorous imprisonment of three years. Those special leave appeals are against their conviction and sentence in accordance with Section 306, IPC.

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This article is written by Pooja Lakshmi, studying BBA-LLB at Bennett University, Greater Noida. A country like India which promotes every religion and where people have the right to live with his or her religion must also accommodate a typical marriage of two Indians where there is no denial when both the parties are from different religions. The special marriage act was introduced in 1954 to accommodate such marriages where they get authenticity to such relational unions. This article involves procedures and benefits though THE SPECIAL MARRIAGE ACT 1954 and provides a clear-cut idea of the ritual followed.

INTRODUCTION

It applies to Hindus, Muslims, Christians, Sikhs, Jains, Buddhist marriages, and every Indian state except Jammu and Kashmir. It applies not only to Indian citizens who belong to different caste and religion but also to Indian nationals who live abroad[1]. According to this law, the fundamental requirement for marriage is the consent of both the parties and if both the parties are willing to marry each other, then caste, religion, race, etc. cannot act as a barrier to their union. One has to file a notice to the district marriage registrar stating their intention to marry each other, in which, at least one of the parties to the marriage has left for at least 30 days prior to the date on which such notice is filed. After expiry of 30 days from the date, such notice gets published, the marriage has to be solemnized. The essential requirement for marriage is that the parties must give consent, and there must be at least three witnesses.

Condition to Marriage

At the time of marriage, the bride must be at least 18 years of age and groom must be 21 years of age as per the minimum age limit condition for a girl and boy to marry.
Both the parties must be monogram and should not have any living spouse at the time of marriage.

The parties must be mentally fit and sane at the time of marriage and should be able to decide for themselves.
They should not be subjected to a prohibited relationship because if it is found to be a prohibited relationship, it might act as a ground for dissolving the marriage in the future.
One should write the application as per the format set out in the second schedule.[2]
After filing the application, a public notice should be issued signed by parties to raise objections if any, against the intended marriage.
Documents such as proof of age, address, an affidavit concerning the marital status, the known relationship between the parties within the degree of probation, passport size photos, etc. are required at the time of marriage.
A copy of the notice must be attached to a marriage notice book that can be inspected by anyone.

Objection to Marriage

Any object can be made regarding consent, capacity, incest, age, etc. Further, it must be communicated to the marriage officer within 30 days of the notice being published. The object requirement was inserted in the SMA to provide an opportunity for the families of the bride or groom to know more about the impending wedding, letting them make items to dissuade the couple. Many inter-faith marriages take place where the life of the couples is at risk, which makes this procedural step dangerous, defeating the entire point of having legislation like SMA. It also specifies that the bride and groom could not stay at the same place at the time of applying, which is not a pre-condition in the assembly, or in any religious marriage law[3].

If the marriage officer believes that the objection she has received is not reasonable, or is not made with a bona fide intention, then the person making the objection may on the receiving end of objection costs up to thousands of rupees and the person under obligation be awarded in the case.[4]

Succession to Property

The succession to the property of individuals married under the Special Marriage Act, including their children, will be governed by the Indian Succession Act. If a party belongs to Hindu, Buddhist, Sikh, or Jain, then the Hindu Succession Act will govern the succession of the property. The Hindu Marriage Act is binding for all the Hindus whereas; the Special Marriage Act is suitable for all the Indians, and it is binding, regardless of their religion having applicability in courts as well.[5]

Benefits

Divorce can be an option if any of the parties is a victim of adultery/ case of desertion, for more than two years after the petition has got filed for the charges of false imprisonment, cruelty, rape, sodomy, or bestiality. If any of the party has a sexually transmitted disease in a communicable form, or leprosy, or is of unsound mind; the party can ask for a divorce.

About alimony, the income of the wife is taken into consideration while null is in a maintenance amount.

It prevents style marriage because of the age restrictions imposed and prevents polygamy. The woman can claim shelter and maintenance too. This act promotes interfaith marriages.[6]

Both the parties are subject to the penalties provided in S. 494 and 495 of the IPC for the offence of remarriage during their lifetime. The marriage so contracted will be void under the law.[7]

Cohabitation

A man may live together with his consort stably if he has gone or is on the go to see, or on small business for the reason that it does not shape the marital bond in any form between them.[8] They may not be living under the same roof yet are not separated. A Husband cannot be considered to leave his wife without reasonable cause, as he is forced to leave a will for her legally.

Restriction on Divorce during the First Year of Marriage

Parties married under the special marriage act cannot file a petition for divorce in the district courts unless and until one year has passed from the date of marriage as registered in the marriage books. As per S. 29 of the special marriage act, in a case where the court is of an opinion that the respondent has shown exceptional depravity on their part, or the petitioner has suffered exceptional hardship; a petition for divorce can be filed, but if any misrepresentation is found on the part of the petitioner while applying for divorce petition before the expiry, then the court may, if any order has been passed, state the order to take effect only after the expiry of 1 year[9].

CONCLUSION

Since Indians believe in marriages with proper rituals, customs, and ceremonies that include pomp and show, and extravagant celebrations, none of that is required under the Special Marriage Act. The fundamental requirement under this Act for a valid marriage is the consent of both parties to the marriage. If both the parties to the marriage are willing to marry each other, that is enough to for a lawful marriage irrespective of the caste, religion, race, etc. of the parties. For marriage under this Act, the parties must file with the district’s Marriage Registrar, a notice stating their intention to marry each other in which at least one of the parties to the marriage has lived for at least 30 days prior to the date on which such notice is filed. After the expiry of 30 days from the date that such notice was published, the marriage is then said to be solemnized. For a valid marriage, the parties must also give their consent to the marriage before the marriage officer and three witnesses.

BIBLIOGRAPHY

Special Marriage Act ,1954
The Child Marriage Restraint Act in India
The Hindu Marriage Act 1955
Kay v. Kay, (1904)
All You Need to Know About the Special Marriage Act, 1954, That Facilitates Inter-Faith Marriages, Benefits of the Act, WOMENSWEB
Punishment of bigamy,10 THINGS EVERY INDIAN SHOULD KNOW ABOUT THE SPECIAL MARRIAGE ACT, 1954, MYADALAT
Diva Rai, Sonali Chauhan, Unreasonable Objections, A Brief Guide to Special Marriage Act, IPLEADERS
vakasha sachdev, Confused About Special Marriage Act? Inter-faith Couples Take Heed, THE QUINT
Tushar Krishnani, Constitutional Validity of Section 21 of Hindu Succession Act, 1956, youthforum,
K. SURESH, A STUDY ON SPECIAL MARRIAGE ACT,1954
The schedule and forms of special marriage act, Kerala registration

[1] Diva Rai, Sonali Chauhan, A Brief Guide to Special Marriage Act, IPLEADERS, <https://blog.ipleaders.in/special-marriage-act/#:~:text=In%20India%2C%20all%20marriages%20can,unite%20in%20the%20marriage%20bond >

[2] <http://keralaregistration.gov.in/fileUploads/Spl%20Marriage%20Forms.pdf>

[3] Vakasha Sachdev, Inter-faith Couples Take Heed, THE QUINT <https://www.thequint.com/explainers/special-marriage-act-specifications>

[4] Diva Rai, Sonali Chauhan, Unreasonable Objections, A Brief Guide to Special Marriage Act, IPLEADERS, <https://blog.ipleaders.in/special-marriage-act/#:~:text=In%20India%2C%20all%20marriages%20can,unite%20in%20the%20marriage%20bond>

[5] Tushar Krishnani, Constitutional Validity of S. 21 of Hindu Succession Act 1956, YOUTHFORUM, <http://youthforum.co.in/constitutional-validity-of-section-21-of-hindu-succession-act-1956/#_edn1 >

[6] All You Need to Know About the Special Marriage Act 1954, WOMENSWEB

<https://www.womensweb.in/2020/02/all-you-need-to-know-about-indias-special-marriage-act-1954-feb20wk5sr/>

[7] Punishment of Bigamy, MYADALAT, <https://demo.myadalat.com/blog/marriage/10-things-every-indian-should-know-about-the-special-marriage-act-1954/>

[8] Kay v. Kay, (1904)

[9] < https://acadpubl.eu/hub/2018-120-5/3/247.pdf >

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This article is written by Mohit Bhardwaj. A 2nd year Law student, currently pursuing BBA-LL.B(Hons.) from Unitedworld School of Law, Karnavati University. In this article, the author discusses the meaning, of wasiyat and its concept under Indian law. To substantiate the concept, reference is made to all the statutes covered by the topic, with relevant illustrations and examples.

INTRODUCTION

Wasiyat has been defined as an instrument by which an individual makes disposition of his property to come into effect after his death.

As per section 2(h) of the Indian succession act, 1925, “Will is a legal declaration of intention of a testator with respect to his property which he desired to be carried out after his death”

Tyabji defines Will as conferment of the right of property in a very specific thing or in an advantage or during a gratuity to come into effect on the death of the testator.

According to Baillie, Will is a device for conferring a right of property in a specific thing, or in a profit or advantage, in the manner of a gratuity, postponed till after the death of the testator. When a Muslim executes a will, then that will is called Wasiyat. Legator/testator is the person who executes the will. A legatee/testatrix is the person in whose favour will is drawn. Let us study the concept of Wasiyat under Muslim law

The distinguishing feature of a Will is that it becomes effective after the death of the testator and it’s revocable.

Unlike any other disposition (e.g. sale or gift), the testator has full control on the property till he’s alive: the legatee or beneficiary under wasiyat cannot interfere in any manner whatsoever in the testator’s power of enjoyment of the property including its disposal or transfer (in that case wasiyat becomes revoked).

Anyone can make a will in favour of anyone irrespective of sex, religion, state of mind and age. In case of a child in mother’s womb, the child is a competent legatee if he is born within 10 months (in case of Shia Law) and 6 months ( in case of Sunni law).

Essentials of a Valid Will under Muslim Law

For a will to be valid and capable of taking effect in law, the following requirements must be satisfied:

The legator/testator must be competent to make the will
The legatee/testatrix must be competent to acquire the legacy
The property must be bequeathable
Free consent of legator and legatee
The legator must possess the testamentary right

Who can make a will?

For the purpose of Wasiyat under Muslim Law, any Muslim of sound mind and who has attained Majority can make a will. Interestingly under Shia law, if a person executes a will after attempting to commit suicide is deemed to be void. But under the Sunni law, there is no such ruling.

Who can take under Will?

For the purpose of Wasiyat under Muslim Law, any person may be a competent legatee provided that he is alive at the time of the death of legator. Anyone can make a will in favour of anyone irrespective of sex, religion, state of mind and age. In case of a child in mother’s womb, the child is a competent legatee if he is born within 10 months (in case of Shia Law) and 6 months ( in case of Sunni law).

Legator is disqualified for getting any property under Wasiyat in Muslim Law if he causes or abets the death of legator. However, in the case of Shia law, legator can take his property if he killed legator accidentally or by negligence.

Who is a Legator?

A legator is a person who leaves money or property to another person when they die

Who is a legatee?

A legatee is someone who receives money or property from a person who has died

Limitations on Testamentary Power

1. Restriction with respect to the property to be bequeathed

A person can bequeath only one-third of his total property. If a person wants to give more than one third than the consent of the heir is necessary. If heirs do not consent to this, then only one-third property will be given and rest is distributed among heirs by intestate succession.

2. Restriction with respect to the legatee

In Wasiyat under Muslim Law, the second restriction comes when legatee is a legal heir of legator. In Sunni law, property bequeathed to the legatee, who is also a legal heir, is subject to approval by rest to the heirs irrespective of the part of the estate given. However, in Shia law no such distinction is made as long it is within one-third of total property given.

Revocation of Wasiyat under Muslim Law

The testator can revoke Wasiyat anytime expressly or impliedly. Express revocation is by express terms. It can be both oral by written. Implied revocation is inferred from his actions like destroying bequeathed property or transfer ownership rights.

Muslim law confers on a testator unfettered right to revoke his will. A Muslim testator may revoke, during his lifetime, any Will made by him expressly or impliedly.

Thus, if he sells, makes a gift of the topic of bequest or deals with identical in any other manner like constructing a house on the piece of land bequeathed earlier, would implied revocation.

For example, where the testator gives land to his friend under a Will but a year later gifts identical to his daughter, the bequest in favour of the friend is automatically revoked.

Where a testator makes a Will, and by a subsequent Will gives a similar property to somebody else, the prior bequest is revoked. But a subsequent bequest (though of a similar property) to a different person within the same Will doesn’t operate as a revocation of the prior bequest, and therefore the property will be divided between the 2 legatees in equal shares.

It is not necessary that for revoking an earlier will, another will must be made. A Will are often revoked by an easy and clear declaration thereto effect or by a proper deed of cancellation or revocation of Will.

CONCLUSION

Wasiyat under Muslim Law is one of the Muslim personal laws with very pious intention. For them, it is a divine institute. Unlike other personal laws, they consider it to correct the irregularities of succession laws. Not only it recognizes other relatives who could not get anything under succession act, but also they protect the right of legal heirs by placing some restrictions on part of the estate which can be bequeathed.