Celebrating Women’s Day: Understanding Property Rights for Women

womens day

Women have been subject to bias in property matters. Woman’s day is an opportunity to ponder over such inequalities and initiate measures for empowering women about their property rights.

Today women are financially independent. Our legal system recognizes their rights in the property as independent owners. The Government has given many relaxations like lower stamp duty rates, to encourage women ownership.  

In India various factors govern the rights of a woman:

  • Marital status
  • Property is ancestral, inherited or self-acquired
  • Property is parental or belongs to her in-laws or husband
  • Personal laws applicable to a woman
  • Rights of woman as a daughter, wife or mother

Read More: Indian Women’s Right to Property

Property Rights of Women as daughter, mother, wife:

Hindu Law:

  • A daughter is a coparcener. She has equal rights in the ancestral property of her father, as her brother, even if she is married.
  • As a wife, a woman has equal right in the property of her husband as other legal heirs.
  • A daughter in law has no right in the property of her father in law till the time her husband is alive. After the husband’s death, she gets a right in the share which her husband is entitled to get.
  • A woman who gets the property by any mode: gift, Will or inheritance, she becomes the absolute owner and is free to deal with it.
  • In the case of intestate succession, a widow has equal right in the property of her husband as her children. A widowed mother also has an equal share in the property of her son as other legal heirs.
  • The wife from the second marriage has the same rights in the property of her husband as the first wife. The second marriage must be valid under the law. 
  • The children (daughter and son) of the second wife are treated at par with the children of the first wife to inherit from the self-acquired property of their father. They do not get right in the ancestral property. 
  • The right of women in agriculture land needs a separate mention. These rights depend upon customary practices and personal laws. After the amendment of 2005 in the Hindu Succession Act, women are at par with men in the inheritance of agriculture land. But some States do not follow the amendment, and the bias continues.

Read More: Property Rights of Women as per Hindu Law

Muslim Law:

Property rights under Muslim Law are based on personal laws and customs. If a Muslim woman inherits property, she becomes the absolute owner of her share. In inheritance, she gets half the share of what male heir gets. 

If a Muslim woman wants to make a Will of her property, she cannot give away more than one-third share of her property, and if her husband is the only heir, she can give two-third share by Will. 

Other faiths:

For faiths other than Muslims and Hindus, the property rights of woman are mostly fair in terms of gender divisions.

Read More: When can or can’t a daughter stake a claim in her fathers’ property

Protection of inheritance rights of women and varying succession laws

Protection-of-inheritance-rights-of-women-and-varying-succession-laws

In our traditional patriarchal society, women have always had fewer rights. Women have been subjected to discrimination, especially in property matters. Inheritance rights of women to the property of her parents or husband has never been taken seriously. Property has always remained the domain of the men. Somehow, women also never bothered to raise their voice against the said bias.

Now things are changing. Women have progressed in every sphere of life. They are educated and employed. Women of the present times are proud owners of self-acquired properties and handle their financial matters by themselves. They have earned recognition for themselves being self-reliant and have compelled the society to ponder over their inheritance rights. 

Read More: Opening an NRO Account – steps, details, requirements

Succession laws vary:

The social fabric and religion influence the inheritance rights of women. The question of inheritance/succession arises-

  • In the case of ancestral property 
  • In case of a person having self-acquired property dying intestate

In some communities, the rights have been strengthened by codifying inheritance/succession laws.

Whether a woman can be a successor to the property depends upon the personal and customary laws. 

  • The relevant succession law for Hindus (Hindu, Sikh, Jain and Buddhists) is found in the Hindu Succession Act, 1956. A daughter inherits equally as a son in her father’s property, whether self-acquired or ancestral.  A wife gets equal share as her children in the property of her husband if he dies intestate. A Hindu woman is the absolute owner of her property which she inherits or receives as a gift. 
  • Indian Succession Act, 1925 governs the inheritance and succession laws applicable to Parsis, Christians and Jews. A Christian daughter and son have equal rights in the property of their father. A Christian wife gets one-third of the property of her husband depending upon the presence of lineal descendants.
  • Muslim woman gets a share as per the personal laws. Generally, she gets one-fourth of her husband’s property if no children are there but one eighth if children are there. The daughter receives half the share of her brother in father’s property. 

Read More: Succession Certificate and the procedure to acquire it

Protection of women’s inheritance rights: 

There is no substitute for education and awareness about one’s rights. It is the key to safeguard the rights of women. Some other factors that can assist in the protection of inheritance rights are:

  • Government policies and laws favouring women help to neutralize the bias. E.g. payment of less stamp duty and fewer taxes, in case of registration of property in the name of a female. It works as an incentive and lots of people prefer to buy the property in the name of the women.
  • The dependency of inheritance on personal laws leads to a lot of confusion and misinterpretation of laws. A codified and uniform inheritance law will benefit more. 
  • There is a need to renounce the practice of sacrificing one’s share in favour of male heirs. Many women themselves give up their share in the ancestral or self-acquired properties in favour of male heirs. 
  • A new concept of setting up of a spousal trust is coming up these days. Women are signing prenuptial agreements to safeguard their pre-marriage wealth. The trust also protects the women against matrimonial disputes. 

Creating an environment encouraging women to be self-reliant will go a long way to protect a woman’s rights.

NRI Legal Services is now on Telegram. Join NRI Legal Services channel in your Telegram and stay updated.

Property rights of a son on mother’s self-earned property – Issues and the Law

Property rights of a son on mother’s self-earned property

There has been such a massive change in the social milieu in our country that now issues arise regarding a mother’s property too – reflective of the fact that women have shares in the family property now.

In further lines of succession of property owned by a woman, a son can claim a share in his mother’s self-earned property only if the mother wants. But if the mother dies intestate, the issue of claim arises.

Distribution of property among family members of the deceased when the person has died intestate has always been a challenging task.  The issue becomes more complicated when the property consists of both ancestral and self-earned property.

Also Read: The married daughters’ right in mother’s self-acquired property

Self-earned or Self-acquired property refers to the property:

  • made by a person by his resources or
  • which he has inherited under the law of succession or
  • acquired through Will or
  • which has come to him after partition.

How an individual deals with self-earned property:

  • The Law gives an individual the full right to deal with the self-earned property in any manner that he pleases; whether it is transferring the property by way of gift, sale or a Will.
  • A person can dispose of the self-earned property to the exclusion of his heirs. The entire property can be gifted to a third person/stranger.
  • No legal heir can claim any right over the said property till the time the owner of the property is alive.
  • The legal heirs can exert their right only if the owner dies intestate.

Personal and Statutory Laws governing property rights:

The right of the children in the property of their mother largely depends upon the personal law and statutory law governing such rights.

In India, the personal laws are related mostly to the religion of the person.  For Hindus, Muslims and persons of other faiths, there are different personal laws.

Under Hindu Law, a woman is the absolute owner of the property which she acquires by any means: gift, will, inheritance. This property becomes her self- acquired/self-earned property. She can choose to transfer the entire property to any person other than her husband and her children.

Also Read: Gift Deed- Implications, Interpretations and Information

Can a son claim on the self-earned property of his mother?

During the lifetime of the mother, a son cannot claim any share in her self-acquired property.  

However, if a Hindu female (mother) dies intestate, the property devolves among legal heirs as per the provisions of the Hindu Succession Act. The legal heirs are

  • Sons Daughters (if predeceased, their children) Husband

The children and husband of the deceased woman (mother) have equal inheritance rights.  Other legal heirs follow if the first order is missing, i.e. a woman dies leaving no children, no grandchildren and no husband, then the legal heirs are:-

  • Mother and father
  • Heirs of father
  • Heirs of mother

In the case of Hindus,

  • A son can, therefore, claim a right in the self-earned property of his mother if the mother has died intestate.
  • Both son and daughter have equal rights.
  • Even the share of ancestral property falling to the mother after the partition of the property becomes her absolute property and is treated as her self- acquired property.

For Muslim mothers,

  • It is the personal laws which govern the right of her son in the self-earned property.
  • Under Muslim law also, a woman becomes the absolute owner of the property which she has acquired by any means.
  • Generally, there is no distinction like the ancestral or self-acquired property under Muslim Law.
  • The children of a Muslim mother cannot claim any right during her lifetime.  Inheritance opens only on the death of the person.

Also Read: Can NRIs buy property jointly with resident Indian?

For persons of other faiths, the right of the children in the property of the mother is governed by the Indian Succession Act. The relatives of the woman and her children are given preference over her husband and his relatives.

The issue of a son’s claim would therefore largely depend on the personal laws governing that particular segment and the line of succession.

NRI Legal Services is now on Telegram. Join NRI Legal Services channel in your Telegram and stay updated.

Can NRIs buy property jointly with resident Indian?

Joint Property - Can NRIs buy property jointly with resident Indian

Some things in this world are still going fine jointly! Take property ownership in India, for instance – especially when we live in a country where the property is still one of the most coveted ways to connect with your roots.

For NRIs, purchasing a property in India is much more than an investment opportunity. It is a way of seeking connections to the native place – and also to find a ‘home’ for oneself. 

It helps if the property ownership is joint with a known relative or friend who is a resident Indian. 

Read: Saving yourself from fraud while buying or selling a property

What do you keep in mind while buying property jointly?

  • As with other things, the purchase of property by NRIs in India is also governed by guidelines issued by RBI. 
  • While the RBI has issued General guidelines for purchase of property by NRIs also, in some cases, special permission from RBI or approval from Government is required before making an investment in the immovable property by NRI.
  • RBI allows NRIs to jointly own a property with another NRI or a resident Indian. 
  • However, in cases where the resident Indian is otherwise ineligible to buy property, then the NRI will also not be allowed to buy the property with that resident Indian (irrespective of the financial contribution of the other person). 

Remember:

  • Residences or commercial property can be bought by NRIs freely. 
  • There is no restriction on the number of properties that can be purchased. 
  • There is no requirement of obtaining any specific permission in such cases and also no need to send any information to RBI for this purchase. 
  • There is no need to file any document with RBI in this regard. 
  • In case the interested NRI is unable to come to India for completing the property purchase, the same process can be carried out by giving a special POA (Power of Attorney) to another person. 

But,

  • For the purchase of any agricultural property or a farmhouse or plantation, NRIs need to apply for specific permission from RBI. 
  • However, NRIs can inherit the same from any resident Indian.

Read: Transfer of Property on the basis of Registered or Unregistered Will

What does the FEMA say?

  • There are no specific guidelines under FEMA for purchase of property by NRI jointly with resident Indians.  
  • An NRI is allowed to sell or gift any immovable property to any resident Indian. 
  • Any property can be gifted to NRI by an NRI other than agricultural property, plantation or a farmhouse.
  • The restrictions which apply to NRIs for purchase of agricultural property, farmhouse or plantation continue even if it is a joint purchase.  
  • The transactions have to be routed through proper banking channels under FEMA and RBI guidelines.
  • For all purposes of investment in real estate, NRIs are treated at par with the PIOs.

Read: How to obtain probate of a Will

What if a person becomes an NRI after buying property in India?

  • In case an individual has bought property in India and acquires an NRI status after that, he can continue holding the property
  • All taxes will apply to the property as per the laws of the country

So Yes! Relax NRIs – You CAN buy property jointly with resident Indians or other NRIs. Make sure you adhere to RBI and FEMA rules regarding the same. 

Rights on mother’s property after her death

Who inherits mother's property?

Right to property is governed by personal and statutory laws.

Once the mother (a woman) acquires any property through will or gift or by inheritance or it a self-acquired property, she becomes the absolute owner of the same. 

Under Hindu Law, the property of a mother devolves as per the Hindu Succession Act, 1956 (the Act). The Act applies to intestate succession.

Read More: Property rights of a wife after husband’s death

According to Section 15 of the Act, the following persons inherit a woman’s property after her death:

  • Her children
  • Children of predeceased children
  • Husband
  • Mother and Father of the deceased mother
  • Heirs of husband
  • Heirs of father and mother

The order of preferences is as follows:

  • Firstly, the children, children of predeceased children and husband
  • Secondly, heirs of the husband
  • Thirdly, her mother and father
  • Fourthly, heirs of her father
  • Lastly, heirs of her mother

Thus if a mother dies intestate, under Hindu law, her children, children of predeceased children and her husband have an equal right to the property. In their absence, the property is inherited by other heirs as per the order of preference.

Right to mother’s property also includes right to the share of the mother in her father’s property, and children of a predeceased mother have a right to claim the deceased mother’s share in the property of her father: –

Read More: Land Kabza- What to do?

After amendment of the 1956 Act in the year 2005, daughters are coparceners and have equal rights as a son, in the property of their father. Thus if a daughter (who is a mother also) dies before the partition of her father’s ancestral property, the children of such pre-deceased daughter have a right in the ancestral property of their maternal grandfather and can claim partition.

However, during the lifetime of the mother, only the mother has a right to claim her share in this property of her father and as a son or daughter of such mother, the person can file a suit for partition only through power of attorney executed by mother in favour of her children.

In case of self-acquired property of the father (i.e. maternal grandfather), if such father dies intestate, the son/daughter of predeceased daughter of such father are included in Class I heirs given in the schedule of the 1956 Act and have a right to claim their share.

After the partition of property in which a woman (mother) has a share, she becomes the absolute owner of her share:

Read More: Settlement deed between brother and sister residing abroad

Once the share of a daughter has been transferred to her after the partition of property of her father, she becomes the absolute owner of her share. 

If a mother makes a will, the property bequeaths as per the will, and if the mother dies intestate, the laws of inheritance are applied as per the 1956 Act.

Distribution of the mother’s property between her son and married daughter:

Married daughter has equal right in the property of her mother as the son, and in case the mother dies intestate, the married daughter inherits her share equally with the son as per the Act of 1956.

Under Muslim Law, since the law is not codified, rights on the property of the mother are governed by personal laws.

For faiths other than Hindus, Buddhists, Sikhs, Jains and Muslims, devolution of mother’s property after her death is governed by India Succession Act, 1925. Generally, relatives of mother inherit and have priority over her husband and husband’s relatives.

NRI Legal Services is now on Telegram. Join NRI Legal Services channel in your Telegram and stay updated.