Property is one of the essential elements a person makes during his lifetime for many purposes like investment or an essential shelter requirement. Property can be of two types self-acquired property and ancestral property.
Self-acquired property is the property that a person acquires or purchases with his own money and income. Ancestral property is the property acquired by a great-grandfather and passed on to the next generation up to the great-granddaughter/son. The rights of legal heirs to inherit in respect of these two properties are different and shall be discussed in detail in the subsequent paragraphs.
Property is one of the important assets a person owns during his lifetime and after one’s lifetime, the same is inherited by his successors. Property rights are significant because.
- The property should pass on to the actual legal heirs of a person.
- The property is not possessed by trespassers.
- The Legal heirs are able to enjoy what is left by their ancestors.
Table of Contents
What is the inheritance of property in India?
Property Inheritance Law states transferring a person’s property, debts, titles, rights, and duties to another person after their death. The property in India can be inherited in two ways, i.e., through a Will or laws of succession when a person dies intestate (without making a Will).
When a person passes away by making a Will, his property devolves upon the beneficiaries of the Will after his death. They can get the property transferred into their name by showing such Will in the appropriate Court of Law/authorities.
When a person passes away and doesn’t make a Will, then his property is distributed between his surviving legal heirs as per the laws of succession. Firstly, upon class one legal heirs, and if there are no legal heirs in class one category, then the property is distributed to the legal heirs in class two category and so on.
In India, the distribution of property is governed by the Hindu Succession Act of 1956 and the Amendment to that made in 2005.
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Types of property that can be inherited
Under the property inheritance law, i.e., Hindu Succession Act, a son and daughter have the right to ancestral property by birth. A father cannot dispose of such property by excluding his rightful legal heirs. A father cannot transfer/ sell or gift such property according to his discretion to any third person. In other words, he cannot deprive a daughter or a son of their share in the ancestral property. Children have a right to inherit such property by the time of their birth itself. In some situations, if a father has transferred such property in the name of a third person, the children reserve the right to object.
Self Acquired Property
In the case of a self-acquired property of a father or mother, their son or daughter has no birth right over it. Unlike the ancestral property, a father, by his discretion, has a right to gift the property or Will it to anyone he desires, and the daughter or the son will not have a right to raise a protest. According to Hindu Law, children can only claim a share out of the father’s ancestral property and not in the self-acquired property. However, after the father’s death, if he has made Will transferring the property or a share in such property to only one of his sons or daughters, others cannot challenge such transfer as it was done by discretion pertaining to the self-acquired property of the father.
Property Inheritance under Hindu Law can be classified as under
- Testamentary succession– the process of distribution of property when a person dies by making a Will.
- Intestate Succession– When a person dies without making a Will, his property will be distributed by Operation of Law.
Distribution of property
Division of property when father dies intestate
At the very first division happens upon class- I legal heirs. In case there are no class I legal heirs, then upon class II legal heirs. If there is no heir of these two classes, then upon the Agnates of the deceased, there is no Agnate, then upon the Cognates of the deceased.
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Division of property when mother dies intestate
When a Hindu female dies Intestate, the property devolves as follows:
Firstly, upon sons, daughters and the husband, Secondly, upon heirs of husband. Thirdly, upon the mother and father of the deceased, Fourthly, upon heirs of father, Lastly, upon heirs of the mother.
Rights of legal heirs under Hindu law
Legal heirs of Hindu male
Hindu Succession Act “Heirs in Class I”
- son of a predeceased son
- daughter of a predeceased son
- son of a predeceased daughter
- daughter of a predeceased daughter
- son of a predeceased son
- daughter of a predeceased son
- widow of a predeceased son
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Hindu Succession Act “Heirs in Class II”
II. (1) Son’s daughter’s son
(2) son’s daughter’s daughter
III. (1) Daughter’s son’s son
(2) daughter’s son’ daughter
(3) daughter’s daughter’s son
(4) daughter’s daughter’s daughter
IV. (1) Brother’s son
(2) sister’s son
(3) brother’s daughter
(4) sister’s daughter
V. Father’s father; father’s mother
VI. Father’s widow; brother’s widow
VII. Father’s brother; father’s sister
VIII. Mother’s father; mother’s mother
IX. Mother’s brother; mother’s sister
When two people are related to each other by blood or adoption, but exclusively through males, they are called relatives to each other.
There must be a male person between each line of relation. It must be remembered that Agnate’s relationship is by blood and not marriage.
When two people are related by blood or adoption, but not entirely through a male relationship, if two people are related through a female, they are said to be Cognates.
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Rights of legal heirs under Muslim law?
Indian Muslims are governed by property inheritance law, i.e., The Muslim Law (Shariat) Application Act 1937. It deals with marriage, succession, inheritance and charities among Muslims. As per Section 2 of the Act, however, matters relating to the Succession and Inheritance of a Mohammedan are governed by Mohammedan Personal Law, commonly known as the Muslim Personal law. Thus, upon the death of a Muslim male or female in India, his or her estate will devolve upon the successors as per their personal law.
Under the Muslim law, here are three categories of heirs –
- Distant Kindred
Sharers /Quranic Heir
They are those heirs who are entitled to a prescribed share of the inheritance. They are also called Quranic Heirs. There are 12 sharers in Muslim law. They Are
- son’s daughter
- true grand-father
- true grandmother
- Full Sister
- Consanguine Sister
- Uterine sister
- Uterine brother
First, the assets are distributed amongst the Sharers as per the prescribed share.
They do not have any prescribed share in the inherited property, but they are eligible to inherit whatever is left after giving away the part of Sharers. Residuary include:
- Son’s son HLS
- Son’s daughter HLS
- True Grand-father HHS
- Full brothers
- Full sisters
- Consanguine brothers
- Consanguine sister
- Full brother’s son
- Consanguine brother’ son
- Full brother’s son’s son
- Consanguine brother’s son’s son
- Full paternal uncle;
- Consanguine paternal uncle
- Full Paternal uncle’s son
- Consanguine Paternal uncle’s son
- Full Paternal uncle’s son’s son
- Consanguine Paternal uncle’s son’s son
- Descendant of Paternal uncle’s son’s son’s son
- Descendant of Consanguine Paternal uncle’s son’s son’s son
- Descendant of remoter true grandfather HHS.
These are all those people who are related by blood to the deceased Muslim owner of the property but do not fall into the category of Sharer or Residuary. In general cases, the distant kindred are entitled to inherit the property only in the absence of the sharers or Residuary. Distant kindred comprise –female agnates and male and female cognates.
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Property inheritance under Muslim personal laws
Further, there are the three stages of succession in Muslims Personal law.
First Stage: deals with Duties that need to be performed on the demise of an Indian Muslim.
Basically, there are four duties which need to be performed: –
- Payment of Funeral Expenses
- Payment of Wages
- Will – execution of Will up to the permitted share
These must be deducted before the estate is divided amongst the heirs and successors.
Second Stage: deals with the distribution amongst HEIRS AND SUCCESSORS- The actual distribution amongst heirs start at this stage.
Third Stage: and the last Stage. This stage comes into the picture when there are absolutely no legal heirs of the deceased, and Government inherits the entire property.
Right of legal heirs under the property inheritance law of Christians
There are three types of heirs under Christians:
- lineal descendants
Division of property in case of death of a coparcener hindu
The Hindu Succession (Amendment) Act, 2005 – Introduced into the Parliament on 20th December 2004. The Hindu Succession (Amendment) Act, 2005 is the product of recommendations of the Law Commission of India in its 174th Report in May 2000, in respect of the equal distribution of ancestral property between both male and female heirs. The Amendment had also become necessary due to the changes introduced in Hindu Succession Act 1956 by five Indian states, namely, Kerala, Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra. Finally, the President’s assent was received by the Bill on 5th September 2005, and it came into force on 9th September 2005.
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Indian property inheritance law for daughters
After the Amendment of 2005, to the Hindu Succession Act 1956, by virtue of section 6, now daughters have equal rights, shares and liabilities as of that of the son in respect to the property of her father.
- Firstly, the daughter of a coparcener shall, by birth become a coparcener in the same manner as the son;
- The daughter will have the same right in the coparcenary property as she would have had if she has been a son;
- The daughter shall have same liability in the coparcenary property as that of a son;
- The daughter is given the same share as is given to a son. The share of a predeceased son or a predeceased daughter shall be given to the surviving child of such predeceased son or of such predeceased daughter.
- Before the Amendment, females were members of the joint family, but the daughters were not coparceners as they had no right by birth.
- After the execution of the Amendment, the daughter of a coparcener by birth becomes a coparcener in her own right as the son.
- A daughter would have the same rights in the coparcener property and be subject to the same liabilities of the coparcenary property as that of a son. Further, daughters would not only be empowered to form a coparcenary along with their other siblings but would also be competent to start a joint family herself.
- She can even be a Karta, throw her self-acquired earning into the joint family fund, something that was not possible before the Amendment; thus, a ‘daughter’, like a son, can not only continue a joint family but also form one with her father and brothers.
Inheritance rights of legal heirs
The Hindu Succession Act of 1956 specifies, Children being offspring of their parents, have the right to inherit their deceased parents’ property. Therefore, children fall in the category of class-I legal heirs. However, children’s rights differ in respect of different types of property under Hindu Law. As specified above, there are two types of property under Hindu Law; self-acquired property and ancestral property. Children have a birth right in the ancestral property of their parents as this property is passed on from great-grandfather to grandfather, father, and then son. Hence, a father cannot deprive his children of their shares in the ancestral property.
The other type of property, which is self-acquired property is the property that the father acquires by his income and money. Regarding self-acquired property, it is the father’s discretion whether to give a share to his children or not. The children cannot force their father to provide them with a stake in such property.
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Inheritance rights of grandchildren
Grandchildren also fall in the category of class – 1 legal heir. This is because grandchildren have a birth right in the ancestral property. Even in case parents predecease grandparents; the grandchildren have the right to inherit the share of their parents.
Rights of grandchildren in the property of maternal grandparents
Grandchildren will have the absolute right to the property of their maternal grandparents.
In case their mother predeceases their grandparents, the children will be entitled to claim the share of their mother that she would have received had she been alive.
Rights of a Spouse
A spouse, either a husband or wife, have the right to inherit the property of their partner in case their partner dies. Under Hindu Law, the spouse also falls in the category of class-1 legal heirs.
Rights of husband in wife’s property
According to Section 15 – If a Hindu female dies without a Will, her property would be distributed as follow: –
- Firstly, her property will be distributed upon the sons and daughters (including the children of any predeceased son or daughter) and the husband
- Secondly, upon the heirs of the husband
- thirdly, upon the mother and the father
- fourthly, upon the heirs of the father
- and, upon the heirs of the mother
Hence, a husband will inherit the wife’s property in equal share along with the children.
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Rights of wife in husband’s property
According to Hindu Law, when a Hindu male dies intestate, his property is devolved upon his class-I legal heirs, which are Mother, Widow, Son, Daughter etc.
Hence, a wife being a class-I legal heir, will inherit her deceased husband’s property in equal share along with other legal heirs.
Property inheritance rights of an adopted child
An adopted child is treated equally as a natural-born child under Hindu law. On adoption, the child is entitled to inherit the properties in the same manner as that of a natural-born son or daughter.
The property inheritance law in India is very vast as it covers various religions under it. Numerous amendments have been made to it, over a period of time. Hindus, Muslims and Christians have different legal heirs, and the modes of succession are also different in each religion. Under Hindu Law, Woman’s property rights have been uplifted in the contemporary era by virtue of the amendment act of 2005. Now the daughter has equal rights as that of a son. This has uplifted the social worth of a woman.
According to Hindu Law, after the death of a female, her property is devolved upon her children, children of predeceased children and husband. Therefore, in your case, children of predeceased children can claim their grandmother’s property.
Can a grandson claim his mother’s share in her father’s property when his mother has already died?
After the amendment Act of 2005, according to Hindu Law by virtue of section 6, the property of Hindu male dying intestate devolves upon his heirs in Class-I category, which includes Sons, Daughters, Widows, mother etc. Hence, a son can claim a share of his mother along with other legal heirs alive in the class 1 category.
As per the traditional laws, a Hindu divorced woman can claim her ex-husband’s property, provided she did not re-marry after the divorce. This was mentioned in section 24 of the Hindu Succession Act 1956. However, by virtue of the Amendment of 2005, section 24 has been deleted and now, even if a widow re-marries, she can still claim her right in the property of her ex-husband.
Hello, my mother has passed away, and my father got married again. The second wife wants to share the property. She has no children. Can she claim a share in my father’s property?
After the amendment Act of 2005, according to Hindu Law by virtue of section 6, the property of Hindu male dying intestate devolves upon his heirs in Class-I category, which includes Sons, Daughters, Widows, mother etc. Hence, in your case, your father’s children from your first wife, your father’s second wife and his mother, if alive, will be entitled to share in your father’s property.
The spouse’s name can be added to the already registered property in two ways. Firstly, you can execute a sale deed favouring your spouse and get it duly registered with the concerned sub-registrar of the area. One needs to do so by paying the necessary transfer fees. Secondly, you can also execute a gift deed in favour of your spouse and get it duly registered with the sub-registrar. This registration has to be in the said jurisdiction and on a duly stamped deed. You can specify the portion of the property, either 50% or any other percentage of the portion of your choice that you wish to give to your spouse.
Suppose a man has no son and only daughters, then how property will be divided among daughters. Will it go to the cousin brothers, or full property will be divided among daughters?
After the amendment Act of 2005, according to Hindu Law by virtue of section 6, the property of Hindu male dying intestate devolves upon his heirs in Class-I category, which includes Sons, Daughters, Widows, mother etc. Hence, in your case, if there is no son, then the property will be devolved upon the daughters in equal shares.
There are three modes of Succession under Muslim Law. The first is that duties are to be performed after the demise of an Indian Muslim, such as payment of funeral expenses, payment of wages, debts and execution of Will. Once everything is done, the remaining is distributed among the heirs.
Secondly, the share is distributed between heirs and successors.
The third stage is when there are absolutely no legal heirs of the deceased, and Government inherits the entire property.
What if the property partition was done before 2005, and will women still get a share in the property?
By virtue of the Amendment of Hindu Succession Act of 2005, daughters have equal rights as a son to inherit her father’s property provided no partition should have been affected before the date 20.12.2004, i.e., the date when this Amendment Act was introduced in the Parliament.
After the amendment Act of 2005, according to Hindu Law by virtue of section 6, the property of Hindu male dying intestate devolves upon his heirs in Class-I category, which includes Sons, Daughters, Widows, Mother, Son’s Son etc. Hence, after the death of their grandfather, his class-1 legal heirs will be entitled to his estate through natural succession.
Will the property of a deceased father go only to his son, daughter and wife as per Succession Act or will it go to the deceased person’s mom and dad?
After the amendment Act of 2005, according to Hindu Law by virtue of section 6, the property of Hindu male dying intestate devolves upon his heirs in Class-I category, which includes Sons, Daughters, Widows, mother etc. Hence, the property will devolve upon son, daughter, wife and mother of the intestate being class-1 legal heirs. Further, the father falls in the category of class-2 heirs.