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.

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

Inheritance under Hindu Succession Act – Who can Who cannot

Inheritance issues can threaten to create divides that are unimaginable and unmanageable! We frequently have clients coming to us with these problems, and we endeavour to get fair deals for all involved.

The Hindi Succession Act, 1956 has been enacted to evolve a uniform system of property inheritance. The Act applies to intestate succession. The Act has been amended to keep pace with changing social requirements.

There is a list of heirs provided in the Schedule of the Act. These heirs are entitled to intestate succession. The Act applies to all those who are Hindu as per the definition is given in the Act. It does not apply to those who are Muslim, Christian, Parsi and Jew by religion.

All the heirs who are entitled to inherit under the Act have a right to succeed intestate succession. Many people come to us for queries in property inheritance. Some of the frequently asked questions are:

1. What does intestate mean?

Intestate means a person who has not made any will of his property. Even if a will has been made, but it is not capable of taking effect, it is equivalent to a person dying intestate.

2. Who is an heir?

As defined in the Act, an heir is any person, male or female who is entitled to succeed to the property of an interstate.

3. What is the order of succession, if any?

Under the Hindu Succession Act, inheritance of property takes place as follows:

A. In case of a male dying intestate, the order of succession is:

  • Class I heirs
  • Class II heirs ( if no heir in Class I)
  • Agnates (if no heir in Class I and Class II)
  • Cognates (If no heir in Class I, Class II and Agnates)

B. In case of a female dying intestate, the order of succession is:      

  • Sons and daughters (if predeceased, their children) and husband
  • Heirs of husband
  • Mother and father
  • Heirs of father
  • Heirs of mother

4. Is there any disqualification, in property inheritance under Hindu Succession Act?

Yes, there are certain disqualifications provided in the act which bars a legal heir from inheriting the property. These are:

  • Murderer: A person who commits murder or abets the commission of murder is disqualified from inheriting the property of:
  1. The person murdered
  2. Any other property to which he becomes entitled to succeed as a result of murder

For the disqualification, Commission of Murder and Abetment (assisting) of murder stand on the same footing.

  • Conversion: A Hindu, who converts to another religion, he is not disqualified. His children who are born after his conversion and their descendants are disqualified. The rule applies only if they are converts when the succession opens.

Any disease, defect or deformity in the person is not a disqualification. It will not disentitle him for property inheritance under the Hindu Succession Act.

5. Can a widow inherit after remarriage?

Yes, widow remarriage is no bar under the Act, to inherit her deceased husband’s property.

6. Can a stepson inherit under the Act?

No, the expression “son” in Hindu Succession Act does not include stepson. It includes an adopted son.

All legal heirs as described in the Schedule of the Hindu Succession Act are entitled to inherit. There is a specific mention of disqualifications in the Act. These disqualifications will disentitle an heir for property inheritance.

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

JudgemePrakash-v-Phulavati-2016-2-SCC-36

The Supreme Court has ruled that daughters born before the enactment of the Hindu Succession Act of 1956 are entitled to equal shares as the son in ancestral property. The verdict was issued in an appeal filed by daughters who challenged a decree in a partition suit that excluded them from the partition.

The Partition suit was filed in 2002 by the grandson of the deceased propositus of a joint family. The court found that daughters were not entitled to share in the property because they were born before 1956, the year the Hindu Succession Act was enacted. In the judgement, the Trial Court also denied them the benefits of the 2005 amendment, which gave daughters the same coparcenary status as sons. The High Court upheld the decree of Trial court.

The Supreme Court ruled that the courts below had made a mistake in the judgement that daughters were not empowered to partition because they were born before 1956. Under Section 6 of the Law, when a coparcener that left behind any female sibling designated in Class I of Schedule to the Law (which also includes a daughter), his undivided interest in Mitakshara Coparcenary property would not devolve upon the surviving coparcener by survivorship but upon his heirs by intestate succession. Therefore, the deceased coparcener interest would devolve by intestate succession on his heirs, including his daughters.

The Court has also held in judgement in favor of the daughters that they were entitled to the benefit of 2005 amendment as well, and that basis also they were designated to shares. It was settled in Prakash v. Phulavati (2016) 2 SCC 36 that right under the amendment area available to the daughters living on the day of the act, regardless of when they were born. In the present case, the bench comprising Justice A.K Sikri and Justice Ashok Bhushan further explained this and stated that the amendment stated that a daughter ‘shall by birth’ would become a coparcener in her own right in an equal way as son. Therefore, the daughter will receive the coparcenary right by virtue of amendment, ‘since birth’. It was observed as follows: –

Section 6, as amended, provides that on and from the initiation of the amendment Act, 2005 the daughter of the coparcener shall by birth become the coparcener in her rights in the same way as the son. It is obvious that the status is given to the sons under the old section and the old Hindu law was to treat them as coparceners since birth. The amended provision now also legally recognizes the rights of coparceners of daughters since birth. The section uses the terms in the same way as the son. It should, therefore, be evident that both the sons and the daughters of a coparcener have been given the right of becoming coparceners from birth. It is the fact of birth in a coparcenary that creates the coparcenary, and therefore the daughters and sons of a coparcener become coparceners by birth. The devolution of coparcenary property is the later stage and an outcome of the death of a coparcener. The first stage of a coparcenary is certainly its creation, as explained above, and as is well recognized.

The fact that the lawsuit was filed in 2002 was also considered irrelevant. The Court stated in the judgement that so far as partition suits are concerned, the partition becomes final until only on the passing of final decree. The decree was issued in 2007. Here the powers of the daughters were established in 2005, and since the Trial Court ought to have taken into account that aspect when adopting the decree in 2007.

The Court also noted and mentioned in the judgement that the 2005 amendment was brought in on the touchstone of equality, thus seeking to remove the perceived disability and prejudice faced by a daughter.

The major changes brought forward about in the Hindu Succession Act of 1956 by changing it in 2005, are perhaps a recognition of Roscoe Pound immortal words, which appear in his famous “The Ideal Element in Law” contracts that “the law must be stable and yet it cannot stand still. Hence all thinking about the law has fought to reconcile the conflicting demands of the need for stability and the need of change.” – the Bench observed.

Therefore, the judgement is in the favor of the daughters and says that shares will devolve on them as well.

Download Full Judgment

Heirs and The Hindu Succession Act, 1956

The Hindu Succession Act, 1956 copy

This act attempts to amend and codify the law related to intestate or un-willed succession amongst Hindus, Sikhs, Jains and Buddhists. According to the provisions of the act, upon the death of a Hindu male, who died intestate, the property is passed on to the Class 1 heirs and if these are not present, then to the Class 2 heirs. If both categories are absent, then the property is given to the “Agnates” (distant blood relatives of male lineage) and if these are no present either then to the “Cognates” (distant blood relatives of the male or female lineage). However, if even these are not present, then the estate is passed on to the government.

The Class 1 heirs include:

  • Son/Daughter
  • Widow
  • Mother
  • Son/Daughter of a pre-deceased Son
  • Son/Daughter of a pre-deceased Daughter
  • Widow of a pre-deceased Son
  • Son/Daughter of a pre-deceased son of a pre-deceased son (3 levels)
  • Widow of a pre-deceased Son of a pre-deceased Son

The Class 2 heirs include:

  • Father
  • (i) Son’s Daughter’s Son
    (ii) Son’s Daughter’s Daughter
    (iii) Brother
    (iv) Sister

Amongst various others, these are some of the Class 2 heirs.

In case there is a death of a Hindu female intestate, the property will devolve in the following order:

  • Upon the Sons and Daughters and the Husband
  • Upon the heirs of the Husband
  • Upon the Mother and Father
  • Upon the heirs of the Father and
  • Upon the heirs of the Mother

If any person commits murder, they cannot claim inheritance from the victim. A person who converts to some other religion will qualify to claim inheritance but his/her descendants can’t do so until they are re-converted to Hinduism. Moreover, if a widow remarries, she cannot claim her inheritance in her husband’s property, though the children can.

The Hindu Succession Act was also amended Section 6 of the 1956 Act, that now allowed daughters to claim equal rights as the sons. Before the enactment of the Succession Act in 1956, inheritance laws were governed by “Shastric” and Customary laws that varied from region to region. Under the Mitakshara school of Hindu Law, a woman in the Hindu household only had the right to maintenance but not inheritance in the property. Also, it was only the sons who were considered coparceners (that is someone on whom inheritance lands from their ancestors), however now, the daughters and sons both inherit equal property and so, share the same liabilities and disabilities. This step taken by the court is definitely a game changer in case of a balanced legal system, where rights and duties are shared equally, irrespective of the sex of an individual.

Furthermore, the Hindu Law does not differentiate between adopted children and children with whom a bloodline is shared. This means that the adopted children also have an equal claim over the property as the others.

How property is divided when a man dies intestate

intestate succession

No matter however ancient is the concept of will or vasiyaat in India, it is still practiced only among the more gentry class of the country. Will is basically a legal declaration by a man with respect to inheritance of his self acquired property. But for several reasons like lack of awareness, complex family structure etc., people who die without making a will i.e. intestate is manifold times than the ones who die after making a proper will. It is for this reason that different laws have codified provisions as to how the property of a man would devolve in case he dies intestate.

Owing to the diversity, the law regarding intestate succession in India is different for different communities.

HINDUS

The Hindu Succession Act, 1956 governs the rules regarding intestate succession of property among Hindus, Jains, Sikhs and Buddhists.  According to Section 8 of the Act, the property of the Hindu male dying intestate will devolve as following:

  • Firstly, upon the heirs specified in Class I; Sons, Daughters, Mother Widow etc
  • Secondly, if there are no heirs in Class I, then upon heirs in Class II; Father, Brother’s son, brother, sister etc
  • Thirdly, if there are no heirs in Class II, then upon the agnates of the deceased; related wholly through male lineage
  • Finally, if none of the above exists then upon the cognates of the deceased; not related wholly through male lineage

MUSLIMS

Among Muslims the law regarding intestate succession is administered by their personal Shariat Law. Muslim Law recognizes two types of heirs, the first being Sharers i.e.  Husband, Wife, Son, Daughter etc and the second being Residuaries. Although the share of each of the heir fluctuates depending on the circumstances.

OTHERS

For other communities like Christians, Parsi and Jews the Indian Succession Act, 1925 comes into play. Part V of the act deals with intestate succession. The provisions under the act are much simple than other acts. If a man dies intestate then his widow and his children, male and female, all inherits equally.

Thus, the above laws ensure that no conflict as to inherence of property arises after the death of the person and also ensures distribution of property among all his heirs in the most justifiable manner. However, to avoid any further discord, lawyers always advise to make a will before the death of the person but laws of intestate succession are also adequate enough for apt disposition of property.