The worldly investments of men who renounce the world continue to haunt their family members.
The worldly investments of men who renounce the world continue to haunt their family members.
Recently, the Bombay High Court has rejected a writ petition filed by the wife and mother of one such Jain man who took sanyas, asking them to help transfer the Reserve Bank of India bonds held in his name.
Rare as such cases are, such matters are complicated and there is little law can do currently, say financial experts. As per Abhishek Kumar, founder of SahajMoney, in absence of a nominee, the RBI bonds cannot be transferred and redeemed only after maturity.
"Banks or even mutual funds in similar situations generally don't transfer any money to claimants until they have a court order. It's too much of a risk for them as in future other claimants might come to stake a claim on the assets," he adds.
Added to that, there are no specific laws related to such matters. "The laws that can be referred to are Hindu Succession Act, Evidence Act and Transfer of Property Act," informs Anuroop Omkar, the founding partner of law firm AK & Partners in New Delhi.
In the aforementioned case, the petitioners had asked the courts to treat renunciation as a civil death, but the court rejected it. Omkar agrees that renunciation cannot be referred to as a civil death. "Sanyas can be referred to as a heightened metaphysical surge," he says.
As per Indian law, a civil death refers to a legal status where a person is presumed dead by the court, despite being physically alive, typically after a prolonged absence of seven years. In case, however, courts refuse to grant the status to the petitioners.
The Case Of A Coma
Apart from renunciation, there have been cases where a person is not unavailable yet not dead. These cases can include cases when a person has gone AWOL or is in a comatose position in a hospital or mentally incapacitated.
"There is no clear statute or law in such matters. There have been a few cases where high courts have taken a compassionate view but it has specified that they are one-off cases. The hands of the court are also tied," explains Kumar.
In 2020, the Allahabad High Court appointed Shalini Agarwal as the guardian of her husband Rajul Agarwal in a comatose state. The court noted that the petitioners have incurred huge expenses for his treatment, which has already lasted for a long period of time. They've also resorted to borrowing money from relatives and friends.
"Thus, petitioners who are in precarious financial condition are knocking on the door of this court for redressal of their grievances," the High Court said, in its order. It directed the banks, etc. to allow her to operate bank accounts and more, and was also allowed to deal with other assets like shares, bonds, immovable property and more such.
Guardianship, too, does not come easy, and is filled with extensive checks and balances and many bureaucratic hurdles. Even in the aforementioned case, Shalini Agarwal would have to file a report with the Registrar General of this Court every six months — detailing the transactions in respect of the assets.
All Except Family Gold
The lack of a law to guide these matters makes issues much more complicated. However, since these are the rarest of rare cases, there has been little push for lawmakers to take a serious view of the matter. Moreso, any law that cuts through religious beliefs would be difficult to pass.
In cases where a person has gone AWOL, it's much more complicated. The wife can only seek a divorce, that too after a civil death is established. "Or in case of renunciation, a divorce could be sought on the basis of alienation of affection which amounts to cruelty," says Omkar.
On the other hand, the families in cases continue to suffer, especially in the cases of financial assets. While residences can be continued to be used by their families, any monetisation will essentially be blocked.
"Even physical property in the name of such a person can pose difficulties for sale etc., without a court order. In such cases, physical gold is one physical asset which is not tagged to a person and, hence, could be claimed by the person in physical possession of it," comments Kumar.
Here, too, it becomes contestable, as other claimants may come to stake their claim on it in the future. The actual owner might also turn up, leading to many more complications. To future safe, a few experts suggest the creation of living wills.
Can Living Will Solve Problems?
A will comes into effect only after the death of a person. But a living will comes into effect in special cases. In the Indian context, a living will or an "advance medical directive" can help a person express their wishes regarding medical treatment and end-of-life care if they become incapable of communicating their preferences.
It's a legal document that outlines a person's preferences, which is prepared in advance. It also appoints a guardian or representative allowed to make decisions on their behalf. In addition, a durable power of attorney allows someone to grant another person the authority to make legal, medical or financial decisions on their behalf, if such a person becomes incapacitated to do so due to illness or injury.
Omkar, however, is sceptical about the possibility of a living will solving the uncertainty in the future. He believes it sets the case of possible mischief and misuse. "Every time a law is made, it tests the intent of the people. Living wills can become dangerous and open floodgates. A lot of people might use the tool to falsify a person's insanity further leading to extended litigation," he says.
For now, there is little respite for such unforeseen circumstances wherein financial assets will be bound to the individual named, until the last breath.
Katya Naidu is a senior business journalist who writes about equity markets, startups, energy, infrastructure, real estate and healthcare.
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