The present study seeks to explore the extent of legislative provisions available for the protection of the disabled in our country.
A systematic knowledge about the legal rights of the disabled in the legislative frame work would be a source of power and strength with those concerned about the welfare of the almost 2% of disabled people out of the country’s total population.
Armed with such knowledge, you would find a premise for new thoughts and direction for future action and operation.
You are most likely to have problems when it comes to property if:
✓ You face greater restrictions in participation on account of impairments that affect your ability to understand, judge and communicate decisions.
✓ Hence, legally referred to as ‘persons of unsound mind’ might be taken advantage of as in most cases.
• Under the Indian Contract Act, 1872 :
✓ A person who is of ‘unsound mind’ is deemed incapable of entering a contract.
✓ A person is said to have a sound mind if :
At the time of entering the contract, they are capable of understanding it and weighing its effect upon their interests.
This can apply to able-bodied persons as well who temporarily find themselves unable to make the contract.
✓ Property rights can be divided into two categories:
• Inheriting and holding property :
This is governed by the Indian Succession Act, 1925.
After the death of the owner of a property :
The decision regarding who the property passed to depends on whether there was a valid will executed at the time of death or not.
If a will was executed, the same has to be confirmed by a Court by way of ‘probate’. Probate is the copy of a will certified under the seal of a Court for action in accordance with its contents.
Probate cannot be granted to a person who is of unsound mind.
✓ A person with a mental impairment can inherit property, however, the administration of the property will be granted to the Guardian of the person.
✓ If there is no Guardian, the Court can appoint one to act in the benefit of the person.
• Buying and selling property :
This is governed by the Transfer of Property Act, 1882 which is deemed to be an extension of the Contract Act.
✓ The assumption is that a person is of sound mind, and as such, a sale or purchase by a person with disability is valid, though it can be challenged in a Court.
✓ To avoid controversy, Registrars may refuse to register documents relating to property when they find a person who could be considered to be of unsound mind is doing it.
• The Disabled & Succession Laws in India :
The disabled and Succession Laws :
Are the disabled deprived of succession or inheritance to property?
The answer is No.
✓ Under the Hindu Succession Act, 1956 which applies to Hindus it has been specifically provided that physical disability or physical deformity would not disentitle a person from inheriting ancestral property. Similarly,in the Indian Succession Act, 1925 which applies in the case of intestate and testamentary succession there is no provision which deprives the disabled from inheriting ancestral property.
✓ The position with regard to Parsis and the Muslims is the same. In fact a disabled person can also dispose his property by writing a `will’ provided he understands the import and consequence of writing a will at the time that a Will is written.
✓ For example, a person of unsound mind can write a Will during periods of sanity. Even blind persons or those who are deaf and dumb can write their Wills if they understand the import and consequence of writing a Will.