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.

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Inheritance Laws in India

Inheritance Laws in India

One of the most common issues that arise in the sphere of property disputes is the ambiguity regarding the Will document and the various conflicts therein. This makes it necessary for any individual to understand how the inheritance laws work in India – so that all can understand what their eligibility for inheritance is. The Indian judicial system has separate laws for Hindus, Muslims, Christians and Parsis. A general guideline also exists. These guidelines further also pertain to whether the property is inherited or self-acquired.  Since September 2005, now women have been given an enhanced status regarding inheritance in the property. Historically, men had always been given preference over women for property inheritance and women were not given their share. Post-2005, every daughter (whether married or unmarried) was then given an acknowledged share. She now has equal rights, duties, liabilities, and disabilities that were limited to men earlier.

Legal heirs can inherit any property whether it is self-acquired or ancestral. However illegitimate children or those with a record of crime committed would not stand eligible. Further, legal heirs are classified into Class I and Class II heirs. Any individual can inherit property in India, irrespective of his residency or his citizenship. However, all the transfers taking place must be in conformity with the FEMA (Foreign Exchange Management Act).

An NRI who is a citizen of India can transfer properties to the following:

  • any resident of India
  • a person who is a citizen but not necessarily a resident
  • Any non-resident of Indian origin.

If an NRI is not a citizen, he can transfer his assets only to residents. Similarly, people who are non-Indians can receive properties in India only if they are residents of India. It should be remembered that no inheritance or gift tax is levied in India. However, the person who receives the assets would have to pay Wealth Tax.

Inheritance matters are covered under the personal law that has been followed by the person who has passed away. This could be either the law of the religion or the law of the land. If a foreign citizen stands to inherit property from a deceased Indian, then the law that applies to the appropriate religion of the deceased shall apply.

If, however, the deceased was a foreign citizen then the personal law of his religion or nationality will apply. Inheritance issues are always handled by the main civil court of the original jurisdiction (district judge’s court) where the property is or where the deceased person used to live before his death-or in some cases, where he used to live before he left the country.

Claiming Inheritance in India – Applicable Laws and Processes

Claiming Inheritance in India - Law and Processes

Practicing any religion is a fundamental right in the constitution. However, there is no uniform code or specific law that governs the idea of inheritance of property in the nation. The general laws relating to inheritance can be directed to The Indian Succession Act, 1925, applicable to all Indian citizens, the exceptions being Hindu, Muslims, Jains, Sikhs and Buddhists. It is the Hindu Succession Act, 1956 that governs non-testamentary or intestate inheritance for Hindus, Jains, Sikhs and Buddhists; For Muslims, for non-testamentary succession The Muslim Personal Law (Shariat) Application Act, 1937 is applied, but where a person dies testate, it is also governed by The Indian Succession Act. Parsis and Christians also follow the general act and inter-faith marriages follow the Special Marriage Act, 1954. In case of a foreign citizen who inherits property from an Indian, the respective law of the latter’s region will apply in that case.

It is important to follow due procedure while claiming one’s inheritance in India, and a few important things need to be kept in mind, such as:

  • Before making any claim to the property, all debts pertaining to the said property need to be cleared.
  • If there is ambiguity in the Will, such as mentioning of excess property etc, legal advice must be sought immediately.
  • The first legal step should be to get hold of the testator’s will, which can be done by applying with the deceased’s death certificate to the District Registrar.
  • Once the legal ownership of an heir for a property is confirmed, it is advised to apply for mutation to the local municipal authority, which makes the ownership claims stronger.
  • A no-objection certificate needs to be acquired in case there are multiple heirs.
  • A will may also be challenged on the grounds that a person has been left out of the will due to whatever reason, and so the words of the will are not absolute in law.

A Hindu male dying intestate would cause his property to be divided equally amongst the Class 1 heirs which include his sons, daughters, widow, mother and specified heirs of predeceased sons or daughters. Even under the Indian Succession Act, if a person dies intestate and has only one surviving child or more children, the all the property would belong to the one surviving child, or will be divided equally amongst all the children. There is no concept of ancestral rights in Islamic Law. It recognizes that even though a person has left behind a will (unless it is ratified by all the heirs) it will be valid only to the extent of 1/3rd of the value of the property in question.

NRI’s may also inherit any property in India, and need to get a succession certificate made from the court in case there is no will present which would require documents such as death certificate of deceased etc.

How to deal with inherited property – Inheritance law in India

Inheritance Law in India

What is Inheritance of Property?

Inheritance is passing on the property, titles, debts, rights, and obligations to another person upon the death of an individual.

Which Act governs Inheritance Law in India?

  • The Hindu Succession Act, 1956 was established to assure equal inheritance rights to both sons and daughters.
  • It implements to all Hindus inclusive of Buddhists, Sikhs, and Jains but won’t refer to a Hindu wedded to a Non-Hindu under the Special Marriages Act
  • It provides a basic play as to how to deal with inherited

How can one inherit a Property?

As per Inheritance Law in India a person can inherit property in two ways:

  • Through Will
  • Through state laws of Intestate Succession

Who inherits the property if a Hindu Male dies intestate?

As per the law, ownership of a Male Hindu who dies intestate is divided among his heirs.

The division among heirs has to take place as per a particular rule.

  • First the Class I Heirs share the assets among themselves (one share each)
  • If the departed person doesn’t have a Class I heirs, then The Class II Heirs are entitled to share the concerned property.
  • If there is no heir, then the property is divided among Agnates (descendant or akin through male’s side) and then among Cognates (blood relative or descended from a common maternal ancestor.)

If there is no heir or relative to claim the property, it passes on to the Government by way of Escheat. In such a case, the government attains all the rights related to the assets along with the duty to fulfil all the obligations attached to the assets.

Classification of Heirs in Class I and Class II

Class I Heirs –

  • The intestate’s widow
  • The surviving sons and daughters
  • The mother of the intestate
  • The heirs in the branch of every pre-deceased son or daughter of the intestate

Class II Heirs –

  • The father of the intestate
  • The intestate’s grand-parents and the grand-children
  • The brother or sister of the deceased
  • Other relatives such as father’s brother/sister, mother’s brother/sister, brother’s widow/son/daughter or sister’s son/daughter, etc.

Who inherits the property if a Hindu Female dies intestate?

The ownership of a Female Hindu dying intestate shall be divided as per following rules:

  • first among the sons and daughters (including the children of any pre-deceased son/daughter) and the husband
  • then amongst the heirs of the husband
  • then among the mother and father
  • then amongst the heirs of the father
  • then among heirs of the mother

What are the rights of Female as per Inheritance Law in India?

As per the Inheritance Law in India, the Females have the following rights:

  • equal right of inheritance to their father’s property as sons
  • to receive a share in mother’s property
  • have to bear the same liability for the property as the son
  • to dispose of the property inherited or gifted by selling, gifting or willing to others as she deems fit

 

Succession Certificate: Making Inheritance More Meaningful

succession-certificate

Inheritance is understood to be a naturally smooth-flowing process, and a lot of people are not even aware of the relevance of the ‘Succession Certificate.’ It is a known fact that a majority of the inheritance issues get covered under the Hindu Succession Act. Some that are related to the minorities are taken to be in the ambit of their community acts – or maybe the Indian Succession Act.

Not many are aware that the need of the Succession Certificate could be related to both movable and immovable properties. It is significant for financial assets like the bank deposits, FDs, etc. and these are not released by the banks unless this document is made.

In the case of a person dying without having made a Will, the Civil Court can grant the Succession Certificate to ensure the release of debts and securities of the deceased. It establishes the legitimacy of the heirs and gives them the authority to get the deposits and other assets transferred in their names.

Many NRIs have been saved from unnecessary hassles of inheritance due to the advice of the legal experts regarding this document. For all applications made by a recipient to a court of competent jurisdiction, the document in all cases is issued as per the applicable laws of inheritance.

This document can also be granted for immovable properties. This could be in the case of situations where there are questions of ownership and possession. This would require a systematic process of transfer which can be based or done through a Will or under the Law of natural succession.

All related services can be taken care of by our firm, including getting documents and also sale if you want later on. The crucial thing to be remembered is that even if an overseas citizen were to know details about land that he thinks belongs to him, he could be a problem if a parent or an uncle/aunt dies without making a Will.

Simply knowing that a property is his cannot help much – proper documentation would be required to assert a claim. There are rules that determine the manner in which all the assets of the deceased are passed on to the heirs. These issues, however, need to be addressed after taking proper legal advice.

At any point in time when one has to apply for this kind of a document, the following information is required:

  • The time of the death of the deceased or the Death Certificate as proof.
  • Place of residence of the dead person or if such residence is not within the jurisdiction of the district judge then, any other property of the same individual falling under the purview of the district judge to whom the application is made.
  • The details of the family and other kith and kin of the deceased and their residential addresses.
  • Proof of what right or what capacity he should be nominated as the successor of the departed.
  • Sufficient evidence that the said asset does not fall under the restrictive cases and there is no dispute to his claim as a successor.
  • Complete details of any debt or security attached

Since our company has many years of experience of working on property disputes for NRIs, and have a network of competent lawyers, we can ensure that our clients get accurate legal advice for property claims at every stage of this process. Not only do we educate them about the necessary procedures, but we also help them with the legal formalities in a hassle-free manner, thus ensuring that no client is ever left alone.