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.

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Share of a brother in deceased brother’s property

deceased brother’s property

Among family members, to ascertain the right of one member in the property of another and distribution of property accordingly is not an easy task. It is always better to get legal advice for the same.

We decided to have a write up in one such matter and have tried to address the queries received by us.

Whether a brother has a right in his deceased brother’s property?

Yes, he has. It depends upon the personal law and statutory law governing the parties. It is different in Hindu Law, Muslim Law and the Indian Succession Act.

What is the share of a brother in deceased brother’s property under Hindu Law?

Under Hindu Law, the share is decided as per the Hindu Succession Act (HSA) and the nature of the property. 

  • If the property is ancestral, both the brothers have an equal share in the same being coparceners. The share of the coparceners in the ancestral property keeps on fluctuating till the time partition is effected.
  • If the property is ancestral but has already been partitioned before the death or it is self-acquired property of the brother, devolution is as per section 8 of the Act.

Read Partition of Jointly Held Property in India

What is the position of the brother as per Section 8 of the Act?

  • As per Section 8 of the Act, brother is a Class II heir, and he gets the share in deceased brother’s property if no one is present in Class I heir and father is not alive.
  • Class II heirs are divided into nine entries and brother falls in Entry II as described below:
    • Entry I –     Father
    • Entry II-     Son’s daughter’s son, Son’s daughter’s daughter, brother and sister
  • There are a total of nine entries.
  • Entry I gets preference over Entry II and so on. Within the entry, each of the heirs receives an equal share.

What is the share of a brother as per HSA?

  • Brother is entitled to an equal share in the property with other class II heirs in Entry II. There are four heirs in Entry II.
  • If A dies and he has a brother B and a sister C only. His property gets divided into two equal parts.
  • If all the four legal heirs are present, the property gets divided into four equal parts.

What is the share under Muslim Law?

  • Legal heirs under Muslim law are divided into sharers and residuary.
  • Brother is a residuary heir. Therefore, the share of a brother in the deceased brother’s property depends upon the residue of the property left after sharers have got their share.

What is the position of a brother under Indian Succession Act?

Brother of a deceased brother inherits

  • if the father is not alive and
  • The deceased brother has left no lineal descendant, i.e. direct descendant. A’s child, and A’s child’s child is lineal descendants of A.

What is the share of a brother as per Indian Succession Act?

  • If the mother of the deceased is living and there are surviving brother and sister and children of predeceased brother and sister, they all inherit equally. (Children of predeceased brother/sister inherit one share of their deceased parent among themselves)
  • A has died, survived by mother M and a brother B and two children C and D of a predeceased sister. Here M will get one third, B will get one third, and C and D will share equally the remaining one-third share.
  • If the mother is not living, then the property of the deceased goes to surviving brothers and sisters and children of predeceased brother /sister. All share equally with children of predeceased sharing one share of their parent equally among themselves.

Can a father give his property to one son?

Can a father give his property to one son

The property has most of the time been a bone of contention among the family members. Between a father and his children, the distribution of property can cause problems if the father has to make choices and distribution is not equal. It is always advisable to get timely legal advice in property matters and place all documents in order.

A father’s right to deal with his property has to be exercised as per the provisions of law:

  • Statutory laws
  • Personal laws

If the father has self-acquired property, he is free to deal with it as his children have no right to claim it during his lifetime. If he dies intestate (without leaving a will behind), all children are entitled to get it as legal heirs.

However, if the property is ancestral he cannot deal with it freely as per his wish as all his children have a share in that property and his sons can claim partition of the same.

Read: Lawyer Nidhi Singh interview on Asian Voice

What is self-acquired property?

A property acquired by a person:

  • Purchased with own resources
  • As a gift
  • Through a testamentary document, e.g. will
  • Received as a legal heir – i.e. share of ancestral property received after partition or share of any other property acquired as a legal heir.
  • When a Hindu dies intestate, his property devolves as per Section 8 of the Hindu Succession Act, and such property which comes in the hands of a legal heir becomes his self acquired property.

Read: Equal inheritance rights to daughters

Distribution of self-acquired property of a father:

  • A father is within his rights to give the self-acquired -property to his one son to the exclusion of other children.
  • During his lifetime, his children have no right to claim it. He can pass the same to his one son by gift or by will.
  • However, if another son has contributed towards the purchase of self-acquired property of the father and he can prove his contribution, he has a right in the said property. Then in such a situation, a father cannot pass the self-acquired property to one son excluding the son who has contributed.

Read: Inheritance under Hindu Succession Act – Who can/Who cannot?

What is the ancestral property?

  • A property which has passed on undivided up to four generations of male lineage is called ancestral property. The property should be four generations old. A person inherits the property as a descendant.
  • The property inherited from father, grandfather or great grandfather becomes ancestral property.
  • The property inherited from mother, uncle, grandmother or any other relative is not ancestral property.
  • The property received as a gift or through a will is not ancestral.

Read: Before you plan to take away inheritance money from India

Distribution of ancestral property of a father:

  • In an ancestral property, all the sons have a right by birth and therefore, the father cannot give the ancestral property to one son to the exclusion of others. After amendment of 2005 in the Hindu Succession Act, even daughters are coparceners and have a right in the ancestral property.
  • A father cannot freely give the ancestral property to one son. In Hindu law, the ancestral property can be gifted only under certain situations like distress or for pious reasons. Otherwise, the ancestral property cannot be given away to one child to the exclusion of all others.

For Muslim and Christians, there is no concept of ancestral property. The property can be given to one son as per the limit permitted under personal law for Muslims.

For Christians, the property is considered as self-acquired despite the mode of acquisition and rights are governed as per the Indian Succession Act, 1925.

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Property Rights of Women in India

Property Rights of Women in India

For long, women were not supposed to have as much share in the property as men had. Property rights of women in India remained largely an ignored and unaddressed issue. Till about twelve years ago –specifically, the year 2005 -women stood to lose on account of their being daughters/wives/daughters-in-law. In September 2005, the courts declared that Indian women would have a right to a share in property just like a man of the family did.

While it is tough to put in brief the minute details of how the property rights of women in India effectively stand, below is an attempt to give a glimpse of the same. The status of a woman in terms of relationships has been further analysed in terms of the major law categories.

Read: Wife rights on the property after husband’s death

Property rights of women in India

Daughters

Hindu Law,

  • The daughters now have equal right of inheritance to their father’s estate as sons.
  • The daughters have a right to receive a share in mother’s property.
  • The Hindu Succession (Amendment) Act, 2005 removes discriminatory gender that was in the provisions of the Hindu Succession Act, 1956 and now it gives the various rights to the daughters that are as follows:
  • In the context of coparcener, the daughter will
  • have same rights as the son
  • have to bear the same liability in the property as the son
  • be allotted the same share as to the son
  • The married daughter does not have the right to ask for maintenance or to shelter in her parent’s home

But if the married daughter is deserted, widowed or divorced she has the right of residence

Read: Equal inheritance rights to daughters

A female has all the rights on any property that she has been gifted or has earned it, or that has been willed to her, that too if she has achieved a majority. She can dispose of the property by selling, gifting or willing to others as she deems fit.

Muslim Law,

  • The daughters have right of inheritance equal to one-half of the son’s share to their father’s estate.
  • She has full control over her share of property and has the legal right to control, manage and dispose of her share as per her wishes in life or after death.
  • The daughter can receive gifts from those whom she may inherit property, but it doesn’t take away her claim as per the inheritance laws.
  • The daughter has the right of residence in her parent’s home and to ask for support until she gets married.

If the married daughter gets divorced, the maintenance charges fall on her parents after the iddat period which is approximately three months but if she has kids who can support her then it is their duty to do so.

Read: The married daughters’ right in mother’s property

Christian Law,

  • The daughters inherit equally with any brothers in her father’s or mother’s estate.
  • The daughter has the right to shelter and maintenance till she gets married from her parents, but she cannot ask for it after her marriage.
  • She has all rights to her personal property, upon accomplishing majority. Until this happens, her father is her natural guardian.

Wives

Hindu Law,

A married woman has full right over her property and is the sole owner whether it is gifted, inherited or earned by her.

She has the right to gift it to anyone whether in parts or as a whole.

The married woman has the right to maintenance and shelter from her husband.

If the husband is a part of a joint family, she has the right to shelter and maintenance from the family.

In the case of partition of joint family property (between her husband and his sons), the wife has the right to a share equal to as any other person.

When her husband dies, she has the right to an equal share of his part, jointly with her children and his mother.

Read: Division of Property Among Daughters and Daughters-In-Law

Muslim Law,

  • The wife has the right to maintenance as any other wife, if any, and to take action against her husband if he discriminates against her.
  • She has the right to maintain her control over her personal property and goods.
  • The wife in case of divorce has the right that the husband makes fair and reasonable provision for her future which includes her maintenance.
  • The wife has the right to mehr’ as per terms of contract accepted at the time of the wedding.
  • She has the right to inheritance to the extent of one-fourth when there are no kids and if there are kids then to the extent of one-eighth.

Christian Law,

  • The wife has the right to receive maintenance from her husband, and if he doesn’t do so, she has the right to ask for the divorce.
  • The wife upon the death of her husband has the right to receive a one-third share of his estate, and the rest is divided among his children equally.

Read: Daughters shares in Ancestral Property

Mothers

Hindu Law,

  • The mother has the right to receive maintenance from her children who can support her. She is a part of Class I heir of Inheritance Law.
  • In the case of Joint Family, the widowed mother has the right to take the share equal to the share of her son.
  • She has the right to dispose of her property by sale, gift or will as she may choose.
  • If the mother dies intestate, her estate will be distributed among her children equally despite their sex.

Muslim Law,

  • If the mother is widowed or she gets divorced, she has the right to receive maintenance from her children.
  • She has the right to inherit a one-sixth share of her deceased child’s property.
  • The mother’s property will be divided as per the rules of Muslim law.

Christian Law,

  • The mother doesn’t have the right to receive maintenance from her children.
  • She may inherit one-fourth of her children’s property if her kids die without a spouse or any living child.