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

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

Daughter's Share The married daughters' right in mother's self-acquired property

For a long time, the concept of succession or inheritance of property has been synonymous with how and what the son will get. Right of a son in the property of his father has always been a matter of concern and discussion. 

In a society which primarily rests on the patriarchal style of relationships, it is very heartening and interesting when people seek to understand or to discuss a question relating to the right of a woman (daughter) in the property of her mother. That’s one sure sign that we have progressed in the sphere of rights of woman.

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

A woman, thankfully, is viewed as the absolute owner of her property.

  • She has the right to deal with her property in any manner.
  • As a necessary corollary to the above, we have moved a step further and also recognize the rights of the children in the property of their mother.
  • Daughters, even though married, have the right to inherit the property of their mother.  

Remember,

  • Law has always recognised a distinction between self-acquired and ancestral property.
  • It is there primarily to decide inheritance issues.
  • Under Hindu Law, a mother becomes the absolute owner of the property – whether she gets it through a Will or as a gift or by any other means. It becomes a self-acquired property for her.  
  • If the mother has inherited ancestral property from her father (i.e. maternal grandfather of her children), although the property is ancestral, it becomes the self-acquired property of the mother. 
  • Self-acquired property of a person can be disposed of by the person in any manner.
  • No legal heir has any right over such property during the lifetime of the person.
  • It is only if the person has died intestate; the question of right in his self-acquired property arises.
  • In the case of intestate succession, the devolution of property is governed by statutory or personal laws. For persons of Hindu faith, the relevant provision of law is found in the Hindu Succession Act. 
  • During the lifetime of the mother, married daughter has no right to seek her property.

Under Hindu Law, daughters have equal rights as sons in the property of their mother.

Also Read: Daughters have equal shares in Ancestral Property, even though they were born before enactment of the Hindu Succession Act – A Judgement by Supreme Court

For right in the self-acquired property of a mother, it is essential to understand two things:

  • All the property acquired by a woman becomes self-acquired property.
  • Self-acquired property can be disposed of in any manner.
  • Any right in the self-acquired property arises whenever the person dies intestate

If a Hindu mother dies intestate, the property gets devolved as per the Hindu Succession Act.

The Act says that the property of a woman gets devolved to 

  • her children
  • the children of predeceased children 
  • her husband 

All these three legal heirs inherit equally.

There is no distinction in the Act for married or unmarried daughters. Thus whether the daughter is married or unmarried, she gets equal rights in the self-acquired property of her mother along with her brother and husband of the deceased woman. 

Read Also: Property Rights of Indian Daughters

The property of a mother also includes any share of the mother in her father’s ancestral property. Once this property is partitioned and the mother gets her share, the share becomes self-acquired property. Even if the mother has died before partition, her children can claim this share later after partition. 

In the eyes of the law, Married daughters can enforce their right by filing a suit in the court for devolution of property as per the Hindu Succession Act.

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.

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.

Who Has the Right Over A Woman’s Property?

Who Has the Right Over Woman's Property

Rights of a woman to a property as well as rights of others in her property vary a lot and are influenced by various factors like culture, religion, the social status of the woman and the development level of the society to which she belongs.

A woman may acquire property as:

  • Ancestral property
  • Self-acquired
  • Inherited
  • Received as gift/will

In India, the property rights of women are governed by law enacted by the legislature and personal laws.

A. In the case of Hindu women (Jain, Sikh and Buddhists are included)

The property of a woman devolves as per the Hindu Succession Act, 1956. The Act deals with intestate succession and not wills.

Hindu woman is an absolute owner of the property acquired by her through inheritance, partition, gift, will, in lieu of maintenance or purchased by her. The ownership gets limited in case the property transfer is subject to some restriction.

Sec 15 of the Act, 1956 provides the list of heirs of Hindu Woman’s property if she dies intestate and section 16 prescribes the order of preference:

  • Own children, children of predeceased children, husband – all share equally
  • Heirs of the husband (only when heirs in point 1 are absent)
  • Parents of Hindu woman (only when heirs in point 1 and 2 are absent)

Two exceptions to this rule are

  • If property by a Hindu woman is inherited from her father – in the absence of her children or predeceased children’s children, it goes to the heir of her father and not to the husband.
  • If the property is inherited from her husband or father in law – in the absence of her children or predeceased children’s children, it goes to heirs of the husband.

In case of self-acquired property, it is always advisable to make a will in time so that the property is bequeathed to beneficiaries one desires. As per the scheme of the Act, the self-acquired property of a Hindu Woman would go to heirs of the pre-deceased husband in case she dies intestate and has no issues.

After the amendment of 2005 in the 1956 Act, daughters are also coparceners, and they inherit the share in the ancestral property equally as a son and subject to same rights and liabilities as a coparcener. If she dies intestate, her interest devolves as per 1956 Act. She also has a right to make a will of her share.

Read More: Property rights of daughters Under Hindu Law in India

B.    Muslim woman

Under Muslim Law, there is no distinction between self-acquired or ancestral property for inheritance purposes. Inheritance opens only on the death of a person. Before a person dies, no legal heir has any right in the property. Legal heirs in Muslim law are divided into two categories

  • Sharers
  • Residuary

Sharers get their share first and residuary get what is left.

If A Muslim woman inherited property from any relation i.e. husband, son, father, mother, she becomes the absolute owner of her share and can dispose it. A Muslim woman in inheritance 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 to her property, she can give two-third of property by will.

A child in the womb of his mother is entitled to inherit if born alive.

C.    For others (Christian, Parsi and Jews)

For women of faiths other than Hindus, Buddhists, Sikhs, Jains and Muslims, succession whether Testamentary or non-testamentary, is governed by India Succession Act, 1925. Blood relatives of woman inherit even in the presence of husband and husband’s relatives. Inheritance laws under this Act are generally gender just.