Dr Bipin Adhikari
The Draft Code is a major departure from the Muluki Ain. The language used is very simple and easily understandable by a layman. Section 211(2) of the Draft Code recognizes the right of fetus to inherit property. Further, Section 212 states that any child born out of void or voidable marriage or divorced parents will have the right to inherit property from their parents. Son and daughter both have been allocated responsibility of care of parents. Section 215 states that if a husband/father has already taken his share from the ancestral property during partition then his wife or children’s can only claim a share from husband/father’s property. The wife and children are barred from making any claims from the ancestral property of their husband/father after partition.
The Draft Code provides for infrastructural development such as road and sewerage aspect to be taken into consideration.
One can express concerns regarding exclusion of provisions when a coparcener is a person who has renounced the world. The existing Code has a provision wherein if a person renounces the world then the person loses his/her right to claim a share from the parental property. Likewise, the present Draft Code is silent regarding the expenditure incurred during marriage of children. Further, the Draft Code has completely overlooked good provision such as casting responsibilities on single parents (widow/widower) in maintaining and providing quality education and health facilities of their minor child until they reach the age of majority. Such expenses may be deducted from the share of the minor if the parents are not capable of meeting such expenses by themselves. As such, the provisions regarding Partition need serious consideration which cannot be improved by minor alterations.
I wonder if there is contradiction between laws relating to partition of property and laws relating to Wills. Does Section 252 relating to ‘Will’ override Partition provisions? The section states that a person by way of a Will can exclude their children’s from inheriting any property from parents. The existing provisions have defined ancestral property as an inherent right and many landmark judgments have been delivered by the Supreme Court on the basis of this inherent right over the property. However, the Draft Code deviates from age old concept regarding property rights of a person which might have consequences. It maybe good or bad, only time will tell. Further, the definition of coparcenaries must be expanded to include brothers and sisters.
