Equal inheritance rights to daughters – Supreme court judgement backs daughters right to property

Equal inheritance rights to daughters

A fundamental principle of any progressive and modern society is the equality of sexes. The landmark judgement of the honourable Supreme Court for equal inheritance rights for the daughters is a highly welcomed change in the judicial system of India which will finally rectify the discriminatory practice and uphold the fundamental right-Equality for all!

Landmark judgement-Final nail in the coffin of male primacy in division of Hindu ancestral property. Daughters will have equal inheritance right with those of sons in father’s, grandfather’s and great grandfather’s property was declared by the highest court in India-supreme court, in a landmark judgement.

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The confusion arising out of the conflicting interpretations of Section 6 (amended) of the Hindu Succession act-2005 were ironed out by a bench of justices- Arun Mishra, S Abdul Nazeer and MR Shah in a 121 page judgement. Daughters born before September 9, 2005 could claim equal inheritance right. This judgement confers the status of coparcener (equal inheritance right) on the daughter in the same manner as the son and with the same liabilities and rights.

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The three-judge bench said, “Once a daughter, always a daughter… a son is a son till he is married. Elaborating on the remark the bench upheld that a daughter shall remain a coparcener (one who shares equally with others in inheritance of an undivided joint family property) throughout life, irrespective of the fact whether her father is alive or not.” A batch of appeals were being heard by the top court where the issue was raised and then this landmark judgement was passed. In 2005 when the law was amended, it did not provide a retrospective operation.

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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.

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.