Division of Property Among Daughters and Daughters-In-Law

Division of Property Among Daughters and Daughters-In-Law

Daughters and daughter – in – laws are on different footing when it comes to shares they receive on division of property in a family. Devolution of property by inheritance or succession is influenced by personal laws and is governed by various statutes.

Position of daughters: Equal right as a son

In the case of Hindus (Jains, Sikhs and Buddhists) division of property is governed by Hindu Succession Act, 1956.

Hindu law recognises the concept of a Hindu Undivided family. Only males up to four generations (lineal descendants from a common ancestor) are coparceners, and all others are members of the family. After the amendment of 2005 in the 1956 Act, daughter whether married or unmarried is a coparcener. After marriage, daughter ceases to be a member of father’s HUF but still, she is a coparcener. A daughter has the rights and liabilities of a coparcener.

  • She can demand partition, has a birthright in the undivided family property.
  • She can be a Karta also, i.e. head of the family if she is the eldest coparcener.
  • If the daughter dies intestate, her share in the HUF property passes by succession to her legal heirs as per section 15 of the 1956 Act.
  • A daughter is a coparcener but a daughter in-law is only a member of joint family.

In case of self-acquired property of the father, son or daughter has no birthright in the same. If the father dies intestate, devolution of property takes place as per rules of 1956 Act under which daughter is covered as Class I heir and has an equal right along with son and other legal heirs.

Read: Do grandchildren have a right to their grandfather’s property?

Daughters also have a share in mother’s property. Daughters and sons have equal rights in the property of their mother.

Position of daughter- in- law: Limited Rights

A daughter in law has no right in the ancestral or self-acquired property of her in-laws.

After the death of her husband, i.e. as a widow, she has the right in her husband’s property left behind by him. This property can be either ancestral or self-acquired. The right acquired by her is as a widow of the deceased husband.

Thus if a father dies intestate, a daughter has an equal right in his property along with her brother, but the daughter in law has no right in the property of her father- in law till the time her husband is alive. After the death of her husband, she is entitled to get the share in the property of her husband along with his other legal heirs.

Read: Property rights of a daughter in a hindu family

The daughter in law has a right to residence only till the time matrimonial relationship exists with her husband. The right of residence is there even if the house is a rented accommodation. If the property is a self-acquired property of her father in law, daughter in law has no right of residence as the said house is not shared house because the husband has no share in it.

A widowed daughter in law has right of maintenance from her father in law under certain conditions only, as prescribed in Hindus Adoption and Maintenance Act, 1956.

Division of property:

When there is a division of property in a joint Hindu Family, the daughters enjoy equal right along with sons. The daughter in law has no right in the property of her in-laws. She acquires rights to the in-law’ property only through her husband.

The daughter in one family becomes daughter in law in another family after her marriage. She has full rights in the property of her father even after marriage but limited rights in the property of her in-laws.

Partition of Property Amongst Family Members

Partition of Property Amongst Family Members

Ever since the beginning of time, the property is deemed to be a mark of high economic status. Numerous displays of family disputes over property in movies and novels, only go on to prove this point. The partition of property amongst family members may be:

Contested – In this case, a lawsuit may be filed in the court, and the decree passed by the court on the basis of the inheritance document or facts of the case, will be binding.

Uncontested – In this case, the following may be drafted:

Partition Deed – It allows a joint division of the family property, amongst its members, as per the law applicable to them, so that each member becomes an owner of the share allotted to him.

Family Settlement – It does not require registration and stamping like a partition deed, however, as per Halsbury’s Laws of England- It is an agreement of compromising the doubtful or disputed property rights and avoiding litigation to save the family honour. In Lala Khunni Lal v. Kuwar Gobind, the Privy Council held that courts must give full force to family settlements, which are bona fide and without fraud.

Advantages of family settlements

  • Capital Gains tax does not arise because such transaction is not treated as a transfer.
  • Clubbing provisions of land will not be applicable on the same.
  • There is equitable distribution of property, rather than claiming as per laws applicable.
  • Registration of oral agreements is not necessary.

Essentials for family settlements

Registration is necessary when you are doing partition of property amongst family members where the terms of the family settlement are reduced to writing, and any unregistered document shall not be admissible as evidence in the court. However, there is a difference between the document containing terms and recitals of the family settlement and a memorandum prepared for the purpose of record or information of the court for making necessary mutation.

Features of the divided property

  • It acquires a new title and each owner gives up his interest in the share of the co-owners.
  • Each owner may sell, transfer, exchange or gift his property as its absolute owner.
  • The property in share is inheritable.
  • If an NRI or Person of Indian Origin (PIO) inherits such property, wealth tax will not be attracted to it.
  • If the division is done by way of a partition deed, it is necessary to register it in the office of the sub-registrar, as it creates new owners of the property. The deed should also contain the date from when the partition is effective and names of parties with respective shares.

It’s all in the Family – Family Law visited!

Family Law India

The Matrimonial Law is another name for The Family Law. This law caters to family matters and domestic relations only. For example, marriage and civil unions, domestic partnerships like adoption and surrogacy; child abuse and child abduction, divorce, property settlements, alimony, child custody and visitation, child support and alimony awards, juvenile adjudication, paternity testing, and paternity fraud.

What is included in Family Law?

This list is not exhaustive and develops depending on jurisdiction. Being a secular State, there are a wide number of religions freely practiced in India. The major religions include Hinduism, Islam, and Christianity. People solemnize marriages as per religious rituals and ceremonies, which are organized customarily by statutory personal laws and hence the matrimonial laws in India, including laws on marriage, divorce and other connected issues.

These laws in India are administered by the particular legislation of the parties depending on their religion:

  • Hindu: Hindu Marriage Act 1955 (governs all Hindus, Buddhists, Sikhs, and Jains), Hindu Adoption and Maintenance Act, 1956, The Indian Succession Act, 1925, Hindu Succession (Amendment) Act, 2005, Hindu Minority and Guardianship Act (HMGA)
  • Muslim: Muslim marriage is a commitment under Muslim law.
  • Christian: Indian Christian Marriage Act 1872 & the Divorce Act 1869.
  • Parsi: Parsi Marriage and Divorce Act 1936.
  • A secular law: the Special Marriage Act, 1954.

All these laws apply throughout India (except for in Jammu and Kashmir, and Goa).

Types of Family Law

When an individual attains legal validation for interpersonal relationships, some legally enforceable rights and duties arise. These duties and right are governed by Family Law.

Even though these laws affect extremely private aspect of a person’s life, these need to be necessarily imposed primarily to ensure that all the rights of an individual are protected and respected and secondarily to sustain the norms which are crucial for human dignity.

Another reason is that laws can be used as tools to bring out a change in society and to enhance the stature of a person in the surrounding world.

Family law in itself is a broad area of litigation. It covers a wide category of issues among family members and relations. The family law helps people to resolve their disputes or disagreements after they have tried all other means of mediation. Either ending a difficult marriage or establishing a conservatorship, people turn to the family law as it provides direction during the trial. Simplifying the adoption process or marriage counseling are some of the benefits that are provided by the domestic law.

Family law is further split into various departments.  It is divided primarily into two sections, one of which involves divorce and marital issues, and the other involving custody and family matters.

Other Marriage-related family laws are as follows:

  • Divorce
  • Child Custody
  • Spousal Support
  • Separation
  • Child Support
  • Pre and Postnuptial Agreements
  • Change of name before and post marriage

Other types of family law include:

  • Adoptions
  • Dependency law
  • Visitation
  • Restraining orders
  • Guardianships
  • Emancipation
  • Juvenile crimes/dependencies

Family law often involves some complicated and emotionally charged issues, many of which require an outside mediator to resolve the issues. The government has set up family courts for speedy disposal of disputes concerning family matters.