PROPERTY DISTRIBUTION IN ABSENCE OF WILL

1.1 PROPERTY DISTRIBUTION AMONG CLASS I HEIRS

Property Distribution in absence of will

The property of a Hindu male who died without making will is distributed among his heirs in accordance with section 8 and 9 of The Hindu Succession Act, 1956. According to these the property of a Hindu dying intestate is inherited by his heirs of Class I who take the property to the exclusion of all other heirs. In case of presence of more than one class heir the rules laid down in Section 10 of the Act are to be followed to be followed.

Section 10 provides as under:
Property Distribution among heirs in class I of the Schedule: The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:-

Ordinance 1- The intestate’s widow or more than one widow shall take one share.
Ordinance 2- : Each take one share, surviving sons and daughters and the mother of the intestate
Ordinance 3- One share be taken by the heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate.
Ordinance 4-The distribution of the share referred to in Ordinance 3

(i) among the heirs in the branch of the pre-decease son shall be so made that his widow (or widows together), and the surviving sons and daughters get equal portions ; and the branch of his pre-deceased sons gets the same portion;

(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.

Ordinance 1: The intestate’s widow or more than one widow shall take one share.

Suppose a situation where A, a Hindu, dying intestate at the time of his death is survived by two windows and a son. A was the owner of one house. Now as per the heirs in Class I shall take the property simultaneously and to the exclusion of all others. And in the above case all are Class I heirs. But two of them are widows of A. Therefore, as per the provisions of Rule 1 of section 10, both the widows of A shall take one-half share in the house of A and the other half shall go to A’s son. Hence the property of A by virtue of the above rule would be divided in only two parts and not three as all the widows together are entitled to only one part by virtue of Rule 1 of section 10. However, among themselves, both the widows shall inherit equally and one-half of the portion of A’s house that they are entitled to shall be divided equally among them. Therefore share of A’s son in A’s house upon A’s death shall be one-half while the share of each widow of A shall be one-fourth.

Similarly if in the above example A is survived by three widows and three sons, the house of A upon A’s death shall be divided in four equal parts. Three parts, i.e. one part each shall be inherited by each son while the fourth part shall be inherited equally by the three widows.

However, if at the time of A’s death he is survived by only two widows, both of them shall inherit the house of A equally, i.e. both of them shall be entitled to one-half share, there being no other Class I heir.

Ordinance 2: Each take one share, surviving sons and daughters and the mother of the intestate.

For example: A, a Hindu male dies intestate and is survived by his mother, two widows, two sons and two daughters. Now reading both Rule 1 and Rule 2 together, it becomes clear that the property of A shall be divided in 6 parts. Each daughter shall inherit one part. So shall each son. There being two sons and two daughters surviving A, each shall inherit one part. Hence, four parts of the property shall be distributed among A‘s four sons and daughters. Of the remaining two parts, A’s mother alone shall be entitled to one part and by virtue of Rule 1, both the widows of A shall be together entitled to one part.

Ordinance 3: One share be taken by the heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate.

For example: A, a Hindu male dying intestate, is survived by one widow, one son, one daughter and two grandsons from one predeceased son, i.e. a son who had already expired at the time of A’s death. Now A’s widow shall take one share of A’s property. One share each shall be taken by A’s surviving son and daughter. As far as A’s grandsons are concerned, by virtue of Rule 3, they shall together take one share as they are the heirs of A’s predeceased son. Therefore, A’s property on his death shall be divided in 4 parts. The one part inherited by A’s two grandsons from a predeceased son shall be divided equally among them. Here it may be mentioned that the position of the heirs of the deceased’s predeceased sons is similar to the deceased’s widows. Deceased’s widows, irrespective of their number are entitled to only one share in the property of the deceased. Similarly irrespective of the number of Class I heirs of a predeceased son of a deceased, they all together take one share. Here even if the widow of A’s predeceased son was alive, even then she would have inherited together with her two sons only one part of A’s property.

Ordinance 4 (i): The distribution of the share referred to in Ordinance 3

(i) among the heirs in the branch of the pre-decease son shall be so made that his widow (or widows together), and the surviving sons and daughters get equal portions ; and the branch of his pre-deceased sons gets the same portion;

(ii) [Explained later]

Ordinance 4(i) deals with distribution of the share that the branch of a deceased’s predeceased son is entitled to on the deceased’s death. As mentioned above, the branch of the predeceased son of a male Hindu dying intestate gets one share in the deceased’s property. That one share is to be distributed among the heirs of that predeceased son in accordance with this Rule.

Thus if A’s predeceased son had two widows and two sons, then at the time of A’s death, they all together would have inherited just one part of A’s property. Among themselves however, the distribution of this one share shall be made in accordance with this rule. Hence the one part that they have inherited shall be divided in three equal parts – one part each to the two sons of A’s predeceased son and one part to the two widows of A’s predeceased son. Here if A’s predeceased son say B, had along with his two widows and two sons also got another son C who had already predeceased B and on his death was survived by one widow and one son, then the one part of A’s property that B’s branch inherits shall be divided into 4 parts – one part each to his two surviving sons, one part to his two widows and one part to the branch of his predeceased son C.

Ordinance 4(ii):The distribution of the share referred to in Ordinance 3

(i) [Explained above]

(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.

This Ordinance deals with the distribution of the share of property of a Hindu male dying intestate that devolves under Rule 3 upon the branch of his predeceased daughter. Now as per Rule 4(ii), this distribution shall be so made that that the surviving sons and daughters of the predeceased daughter get equal portions. Therefore, if A, a Hindu male dying intestate is survived by a widow and a grandson and granddaughter from a predeceased daughter B, then A’s property upon his death shall be divided in two parts- one part to his widow and one part to B’s branch. The part inherited by B’s branch shall be divided equally between B‘s son and daughter.

FREEDOM OF PRESS UNDER CONSTITUTION OF INDIA

Under article 19(1) (a) of the Indian Constitution Freedom of press is not specifically mentioned , only freedom of speech and expression is mentioned. Yet we assume our press to be given rights under this article on the basis of speeches of constituent assembly.
In order to live freely and to preserve the democracy it is relly important that people have the freedom to express their feelings and to make their views at large. The press, a powerful medium of mass communication, should be free to play its role in building a strong viable society. Denial of freedom of the press to citizens would necessarily undermine the power to influence public opinion and be counter to democracy.

Freedom of press is always assumed to be given under article 19(1)(a) of the Indian constitution.There few leading cases that proves this point further like Brijbushan vs State of Delhi, K.A.Abbas vs UOI, R.Rajgopal vs State of Tamil Nadu, Romesh Thaper vs State of Madras, etc.

The right to freedom of the press includes the right to propagate ideas and views and to publish and circulate them. However, the freedom of the press is not absolute, just as the freedom of expression is not. Public Interest has to be safeguard by article 19(1)(2) which lays down reasonable limitations to the freedom of expression in matters affecting:
Sovereignty and integrity of the State, Security of the State, Friendly relations with foreign countries, Public order, Decency and morality, Contempt of court, Defamation, Incitement to an offence

DEFINITION:

Freedom of press is an absence ofcontrol of statutory and administrative power on publication and circulation of information, ideas, knowledge and thoughts.
In US Constituion the freedom of the press and of expression is guarded by the First Amendment which specifically lays down that this freedom be in no way abridge by the laws. It is not Indian Leaders were not aware of the US First Amendment or of Jefferson’s famous declaration when he said that “Were it left me to decide whether we should have a government without newspaper or newspapers without a government, I should not hesitate a moment to prefer the latter.” Jawahar Lal Nehru echoed similar views “I would rather have a completely free press, with all the dangers involved in the wrong use of that freedom, than a suppressed or regulated press.” Voltair once said, “I do not agree with a word you say but I defend to death your right to say it.”

In order to preserve the democratic way of life, it is essential that people should have the freedom to express their feelings to make their views known to the people at large. The press, a powerful media of mass communication should be free to play its role in building a strong viable society. Denial of the freedom of press to citizens would necessarily undermine the power to influence public opinion.

Also the restrictions imposed on the press by the Constitution, there exists various other laws which further curtail press freedom and the right of the citizen to information as well as the right to freedom of speech and expression. They are all in force in the interest of public order of the sovereignity and security of the state.

Indian Constitutional Perspective of Freedom of Press:

The scenario before Independence in India was such that, there was no constitutional or statutory guarantee of freedom of an individual or media/press. At most, some common law freedom could be claimed by the press, as observed by the Privy Council in Channing Arnold v. King Emperor.

“The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length, the subject in general may go, so also may the journalist, but apart from statute law his privilege is no other and no higher. The range of his assertions, his criticisms or his comments is as wide as, and no wider than that of any other subject.”

The Preamble of the Indian Constitution ensures to all citizens inter alia, liberty of thought, expression, belief, faith and worship. The constitutional significance of the freedom of speech consists in the Preamble of Constitution and is transformed as fundamental and human right in Article 19(1)(a) as “freedom of speech and expression".

In order to achieve the main objects, freedom of the press has been included as part of freedom of speech and expression which is a universally recognized right adopted by the General Assembly of the United Nations Organization on 10th December, 1948. The heart of the declaration contained in Article 19 says as following:

“Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

The same view of freedom of holding opinions without interference has been taken by the Supreme Court in Union of India v. Assn. for Democratic Reforms in which the Court has observed as follows:

“One-sided information, disinformation, misinformation and non information, all equally create an uninformed citizenry which makes democracy a farce. … Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions.”

Freedom of press in India is implied from the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India. Article 19(1)(a) says that all citizens shall have the right to freedom of speech and expression. But this right is subject to reasonable restrictions imposed on the expression of this right for certain purposes under Article 19(2).

Supreme Court stand in leading cases illustrates that the freedom of press is essential for the proper functioning of the democratic process. Democracy means Government of the people, by the people and for the people; it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential. This explains the constitutional viewpoint of the freedom of press in India.

The basic principle which was involved in freedom of press is the “people’s right to know”. Therefore it receives generous support from all those who believe in the free flow of the information and participation of the people in the administration; it is the primary duty of all national courts to uphold this freedom and invalidate all laws or administrative actions which interfere with this freedom, are contrary to the constitutional mandate.

Freedom of Press in India:

In Brijbushan vs State of Delhi ,the chief commissioner of Delhi issued an order under an act of East Punjab Safety Act, that was against editor of English Weekly of Delhi that all communal matters news or views ,photographs about Pakistan has to be submitted in his office and only after the approval it can be published.Brijbushan challenged the order under violation of Article 19(1)(a). SC struck down the order and said that prior censorship is a restriction on the freedom of speech and expression.
In R.Rajgopal vs State of Tamil Nadu, Rajgopal was editor of Nakeeran of Tamil Nadu Weekly.There was a convicted person , auto shankar.He was awarded death penalty and his mercy petition was pendimg before President. He wrote auto biography and disclosed his connection with several higher officials and ministers on whose direction he committed several crimes and murders, according to him.He took permission from jail authority for writing biography and was granted the permission by them.After completing the biography he handed it to his wife directing her to hand it over to editor of Nakeeran i.e Rajgopal. Editor planned it to print serialwise in sections per week and further gave ad of the story. Officials wrote to IG and IG further wrote to editor to stop the publication of the biography.Editor went to SC.SC held that petitioner has right to publish the biography and said that this is apprehension of defamation, on which ground publication could not be stopped.

In Romesh Thapar v/s State of Madras, Patanjali Shastri,CJ, observed that “Freedom of speech & of the press lay at the foundation of all democratic organization, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.” In this case, entry and circulation of the English journal “Cross Road”, printed and published in Bombay, was banned by the Government of Madras. The same was held to be violative of the freedom of speech and expression, as “without liberty of circulation, publication would be of little value”.

In Union of India v/s Association for Democratic Reforms, “One-sided information, disinformation, misinformation and non information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions”. In Indian Express Newspapers v/s Union of India, it has been held that the press plays a very significant role in the democratic machinery. The courts have duty to uphold the freedom of press and invalidate all laws and administrative actions that abridge that freedom. Freedom of press consists of three factors : Freedom of access to all sources of information, Freedom of publication, Freedom of circulation.

In Sakal Papers v/s Union of India, the Daily Newspapers (Price and Page) Order, 1960, which fixed the number of pages and size which a newspaper could publish at a price was held to be violative of freedom of press and not a reasonable restriction under the Article 19(2). Similarly, in Bennett Coleman and Co. v/s Union of India, the validity of the Newsprint Control Order, which fixed the maximum number of pages, was struck down by the Court holding it to be violative of provision of Article 19(1)(a) and not to be reasonable restriction under Article 19(2). The Court also rejected the plea of the Government that it would help small newspapers to grow.

As The Freedom of the Press is nowhere mentioned in the Indian constitution but the Right to Freedom of Speech and Expression is provided in Article 19 of the Indian Constitution. It is believed that Freedom of Speech and Expression in Article 19 of the Indian constitution include freedom of the press.

The freedom of the press is the same as that of an ordinary citizen. The press cannot claim any immunity from taxation, is subject to the same laws regulating industrial relations, and press employees are subject to the same laws regulating industrial employment.

ORDINANCES AND DATA PROTECTION

With the introduction of modern world of tech and internet, every second person is indulge in data usage. The consumption rate could be assumed through customers of digital world. Frequent Birth of new network companies every then and now proves the fact of ultimate favourable market. The data usage helps these companies in growth and competitiveness by exploiting these data.

There is no particular definition of ‘big data’, however, it is largely accepted that the importance of big data lies in its sheer volume as its continuous flow from a vast group of sources such as Facebook posts, tweets, clickstream, online transactions, email, uploaded images, cookies, and the internet of things including smart watches, smart gear, smart lighting, and the like. Big data consists of data created in real space, collected in real time, and pertaining to highly personal, sensitive behavioural patterns such as habits, likes, and dislikes, as well as travel, movements, health statistics, among others.

Data mining helps companies in several ways in enhancing their business while it undemines the privacy of its users. As a result, there is demand for stronger regulatory norms to govern the collection, storage, transmission, and usage of big data. There are three essential elements for the sustainable development of big data: transparency in personal data processing; robust user control over how their data is used; and the establishment of a comprehensive data protection framework.

GOVERNMENT STAND FOR DATA PROTECTION:

India has no as such particular rule book for data protection and privacy. However, in the context of digital data processing, certain aspects of data protection are covered under the Information Technology Act of 2000 (‘IT Act’) and the Reasonable Security Practices and Procedures and Sensitive Personal Data or Information Rules of 2011 (‘Data Protection Rules’).
While Government bodies and individuals engaged in data processing are not covered under the Data Protection Rules. It includes only companies, including firms, sole proprietorships, and associations of individuals engaged in commercial/professional activities (collectively, the ‘body corporate’) fall under the purview of these Rules.1
The Rules distinguish between ‘sensitive personal data’ and other ‘personal information.’ ‘Personal information’ could be explained as information relating to a natural person which,with other information, is directly or indirectly capable of identifying such natural person, 2 and within its area exists the smaller set of ‘sensitive personal data’: in form of passwords, finances, health conditions, sexual orientation, medical records and history, and biometric information.

The limitation of the Data Protection Rules is that Information of personal nature pertaining to other persons that are knowingly or unknowingly captured in the background—as in the case of the internet of things—is not covered by these Rules.. As technology like the ‘internet of things,’ facilitates huge data collection, and other sensitive personal information such as location, habits, and activity.

In case of anonymization of data, it can be said that if the collected data is encrypted such that it is no longer capable of revealing identities, then the de-identified data would not qualify as personal information, and that , would not fall under Data Protection Rules. In the context of big data, this implies that even if data collectors anonymize individual datasets obtained from different sources so that the person to whom the data corresponds cannot be identified, if the identity of the person can be revealed upon aggregation of this data, then the anonymized individual datasets and the aggregated data would be classified as personal information under Data Protection Rules.

PRIVACY PROTECTION RULE:

Ordinance 4 of the Data Protection Rules needs body corporate across the link of data processing that engage in the collection, storage, or otherwise deal with, or handle ‘personal information,’ to publish a privacy policy on their websites. The privacy policy is to clearly mark out their data processing practices, the type of personal information collected, the purpose of collection and usage, as well as details of disclosure made to third parties, and the reasonable security practices and procedures adopted.

Inspite of creating additional transparency, a privacy policy does little to actually prevent misuse of data.It is critical to note that ordinance 4 creates a special obligation upon the body corporate to ensure that its privacy policy is available for view to individuals who have provided information to further a lawful contract. This interpretation is supported by Section 72A of the IT Act, wherein penal liability has been established for persons, including intermediaries, for any wrongful disclosure of personal information secured while providing services under the terms of a lawful contract. While, under Section 43A of the IT Act, mere compensatory liability has been provided in case of any wrongful loss or wrongful gain arising from the negligence of a body corporate in implementing and maintaining reasonable security practices and procedures for sensitive personal data or information.

OTHER RULES :

Rules 5, 6, and 7 of the Data Protection Rules makes compulsory that the body corporate obtain consent from data providers prior to any collection, disclosure, or transfer of data. Rule 5 also requires a body corporate to disclose the purpose of collection, intended recipients of information, the particulars of the collecting agency, and where the collected information will be stored, as well as the details of the intended use of the collected data.These stipulations are limited in their applicability to sensitive personal data or information. It leaves a large amount of data for processing without obtaining prior consent or making adequate disclosure to data providers.

Customer consent and notice do not fare well in the world of data exchanges. , It would be practically impossible to obtain prior written consent before each instance of data collection Where information is continuously collected through sensors on a real-time basis. Instead, services such as WhatsApp and Facebook have incorporated a perpetual consent on part of their users within their terms of service.

Additionally, it is quite difficult for data collectors to provide the particulars of the purpose and usage of the information collected in real time, and it would be impossible for them to identify the multiple hands through which the collected data may pass in the future. This is further complicated by the notification requirement of the data provider to divulge the intended use of data, which is directly tied to the actual collection and usage of data. Data collectors are barred from collecting data beyond what is necessary for the function or activity of the body corporate7 and from using the collected data in any manner that is not disclosed.8 Data collectors also cannot retain the collected data for longer than is required to meet said purposes.9 The only way left for data collectors is to make wide disclosures of the potential use of data in their terms of service for the processing of all existing and future data, which ends up being completely unfruitful in terms of data protection.

Individuals usually ignore such notices or face difficulty in understanding their scope given the complexity of data flows. The effectiveness of prior consent and notice remains doubtful. Sometimes individuals have no choice but to agree to the terms of service in order to avail themselves of the desired service or product.

DECLINING CONSENT:

When using the service, product, or otherwise, individuals may at any time withdraw their consent to share their data with the body corporate. Such withdrawal is to be indicated to the body corporate in writing. Once a person has declined, the body corporate has the option to cease provision of the service or product for which the impugned data had been sought.Yet, no provision has been made to allow data providers access to their past data stored by the data collectors so that they may switch service providers.

SECURITY PRACTICES:

Section 43A of the IT Act requires an institution handling sensitive personal data in a computer resource to implement ‘reasonable security practices and procedures’ to protect such information from ‘unauthorized access, damage, use, modification, disclosure or impairment.’ Explanation of Section 43A clarifies that the design of these security practices and procedures may be specified in an agreement between parties or in any law being in force at the time. As a result, it remains open for data processors to forge agreements with data providers regarding adoption of security measures for the protection of data. Such a discretionary stance favors data collectors instead of data providers because in actual practice individuals usually fail to grasp the finer points of such terms of service and trade off their personal information to access or acquire the service or product.

Further Rule 8 of the Data Protection Rules also lacks specificity, in that the rule gives body corporate the discretion to formulate their security control measures so long as their security practices and standards for the protection of information assets are commensurate with the nature of business. However, there is no clarity as to how this data security threshold shall be determined, leaving it to the discretion of data collectors to determine the extent of security measures to be put in place for data protection.

Even little ignorance in implementing or maintaining these reasonable security practices that result in wrongful loss or wrongful gain to any person becomes a liability in as much as a body corporate may have to compensate or pay damages to the affected persons. However, this liability has been narrowly defined to accrue only in respect of ‘sensitive personal data or information’ and with regard to ‘wrongful loss or wrongful gain’, which is to say not just the mere loss of privacy. Furthermore, excluding the minimal residuary liability arising under Section 45 of the IT Act, the unauthorized or negligent divulgence of other personal information, other than as obtained under the terms of a lawful contract, has not been penalized under the IT Act or Data Protection Rules.

CONCERNED CASE:

The matter misusing data could be observed in case of Karmanya Singh Sareen v. Union of India12 before the High Court of Delhi. In this case, privacy activists through a writ petition challenged the new terms of service of WhatsApp by virtue of which the application can share its users’ data with Facebook.WhatsApp had assured its users that their data / details would not be shared in any manner. However, with the change in ownership – acquisition of WhatsApp by Facebook – WhatsApp’s privacy policy has undergone a drastic change. Now, the account information of all those users who have not opted out of the new terms of service is being shared with Facebook as well as other group companies and is being subjected to Facebook’s deep data mining, for the purpose of targeted commercial advertising and marketing. Petitioners claimed that this unilateral action contradicts the most valuable, basic and essential feature of WhatsApp that is complete security and protection of privacy.

WhatsApp counsels argued that they value privacy of its users, which is evident from the fact that it does not ordinarily retain messages of its users and offers full end-to-end encryption for its services such that WhatsApp and third parties cannot readuser messages. Moreover, all those users who are unwilling to share their account information with Facebook / other group companies are free to delete their WhatsApp account, using WhatsApp’s in-app ‘delete my account’ feature. Upon deletion, such information of prior users that WhatsApp no longer needs for operation of its services would automatically stand deleted. Specifically in respect of revision of its terms of service, they averred that WhatsApp had provided advance notice to its users, and only those users who have chosen to continue with the service are being bound by the revised terms, including terms relating to data collection and usage.

Petitioners further argued that this change in the privacy policy is contrary to the principles of estoppel and is against the right to privacy guaranteed under the Constitution of India.
The Court held that users cannot now compel WhatsApp to continue with its original terms of service when the original terms entitled WhatsApp to unilaterally change its privacy policy and stipulated the continued use of WhatsApp service, post amendment of privacy policy, to be considered as “deemed consent” to the terms of the revised policy. Further, the Court observed that no relief can be granted under the Constitution of India as the legal position with respect to the “right to privacy” is, as yet, undecided. The Constitution does not specifically guarantee a right to privacy and the judicial interpretation that the Constitution does provide a right to privacy – primarily through Article 21 – is under challenge before the Supreme Court of India in the pending case K.S. Puttaswamy v. Union of India.13 As such, further to WhatsApp’s terms of service, the Court directed:

I: WhatsApp to completely delete information / data / details of those users who have chosen to delete their WhatsApp account
II: so far as those individuals, who have opted to continue with the use of WhatsApp service, are concerned, restrained WhatsApp from disclosing their information/data/ details, which was collected under the terms of the original terms.

Inspite of many benefits of big data analytics, big data processing poses serious risks to privacy. The cocern is not whether to apply data protection laws to big data, but the process to apply them innovatively. In the absence of a specific data protection framework and with the growing ubiquity of data collection, the limited protections of the Information Technology Act and Data Protection Rules make it increasingly difficult to protect data privacy. Hence, it could be concluded that data protection is significant issue and our ordinances need to be applied effectively with further editing of these laws.