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Article Published in the Express Magazine Dated
July 13, 2003
General Attorney : Rajiv K. Luthra
My friend purchased a plot through allotment in
Sector 7 Gurgaon from HUDA, and constructed a
house by availing a loan from his office in the
early eighties. After his death in 1993, his widow
applied for transfer of the said plot in her name
and submitted the required documents. HUDA,
however, raised an objection that a No-Objection
Certificate (NOC) should also be obtained from the
mother of the deceased.
In the meantime, the mother of the deceased
allottee died. When the matter was recently taken
up with HUDA, my deceased friend’s widow was
required to submit amongst others, a death
certificate of the mother of the deceased, an
indemnity bond and a declaration to the effect
that she would be responsible if any other
claimant raises a claim in respect of the
property. HUDA is not accepting her case that the
property was a self-acquired property. Kindly
advise as to whether brothers of the deceased have
any legal rights or interest, whatsoever, in the
self-acquired/self earned property of the
deceased.
Ram Chander
The devolution of the self-acquired property of a
Hindu deceased in the absence of a Will is dealt
with under the Hindu Succession Act, 1956 (Act).
In terms of the Act, self acquired property
devolves upon Class I heirs to the exclusion of
all other Classes of heirs. Under the Schedule to
the Act, Class I heirs include son, daughter,
widow, mother etc., whereas Class II heirs include
father, brother, sister, etc.
Widow has a right to get the property of her
deceased husband transferred along with other
Class I Heirs and to the exclusion of all other
Class II heirs. Mother being Class I heir is
entitled to a share in the property. Since no NOC
was obtained from the mother of the deceased
during her lifetime, her interest in the property
shall devolve upon her class I heirs which shall
include brothers of the deceased friend.
Therefore, HUDA cannot be faulted for asking for
additional documents including the indemnity bond
from other legal heirs.
Further, in order to prove that the property was
self-acquired by the deceased, the loan documents
should be sufficient as it will record the purpose
for which loan was obtained. Since, loan was
availed from the office it necessarily meant that
it was be repaid by progressive deductions from
the deceased’s salary and therefore, the property
is his self-acquired property.
Accordingly, we are of the view that the your
deceased friend’s widow should also submit the
documents, if any, regarding the loan availed by
the deceased from his office to prove that the
property was self-acquired property.
I have just joined an MNC dealing in software.
At the time of signing the contract the management
made me execute a bond for Rs 1,00,000 in the
event of leaving the company within one year of
the employment contract. Since I have chances of
getting better employment, I am concerned whether
the bond could be enforced against me if I choose
to leave the job. Do I have any legal remedies?
Anonymous
The courts will not, in general, compel specific
performance of contracts, which involve personal
services. However, at the same time, the courts
have upheld the compensation clause in an
employment contract, in the event of premature
termination by either of the parties, especially
if the employer is able to prove liquidated
damages for breach of contract committed by you.
However, under Section 74 of the Contract Act, the
liquidated damages provided for in case of breach
of contract should be reasonable.
A definitive view on the employment bond executed
in your case could only be expressed on an
examination of the entire contract package.
However, if the MNC chooses to approach the court
for the enforcement of the bond, in the event of
your leaving the it within one year of joining,
you can always raise the plea that terms of the
contract are unconscionable and are penal in
nature. In such an event, you will be required to
establish that the inequality of bargaining power
was such as to merit the intervention of courts
and also that the bond amount bears no connection
with the loss suffered by the MNC on account of
your premature departure from the MNC.
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