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

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.

PARTITION OF PROPERTY UNDER MUSLIM LAW

PARTITION OF PROPERTY UNDER MUSLIM LAW

Succession is a matter of right and a necessity as well. Every person will have to renounce the world once and with that, all the legal rights and obligations of the person are dissolved and passed to someone else. In India, succession comes under personal laws which are based on religion. Hence, the law of succession is dependent upon one’s religion. Among Muslims, that is people believing in Islam, THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937 deals with matters of intestate succession, the special property of female, inheritance and transfer of property under a gift or any other provision which is a subject of personal law.

The two types of succession have been recognised in the Muslim law also. In a case where a man has left a valid will, testamentary succession will happen and so the property will be divided accordingly. Whereas, in the case where there is no will, intestate succession takes place. Since the joint family system is not recognised, the heirs are only the immediate family members of the person. Also, the Muslim Law makes no differentiation between self-acquired and inherited property. Hence, all the property of the concerned person goes to the heirs.

Under the Muslim law, there are three classes of heirs

  • SHARERS, they are entitled to a prescribed share of the inheritance. In case of a man’s property, his wife/wives are the sharers of his property. The wife is allowed to inherit a fixed share from the property of the husband which is 1/6th of the total share.
  • RESIDUARIES, who do not have any prescribed share in the inherited property but they are eligible to inherit whatever is left after giving away the part of sharers. The children, both sons and daughters, are the residuaries in the father’s property. A daughter is allowed to take her share in the partitioned property irrespective of her marital status. They are to distribute the remaining 5/6th part of the property among themselves. The share of the son and the daughter are in the ratio of 2:1. The son is entitled to double the amount of property than the daughter.
  • DISTANT KINDRED, are all those people who are related to blood to the property owner but do not fall into the category of sharer or residuary. There right is not ipso-facto present on the property, but needs to be proved.

Hence, the partition of property among the heirs of an individual will be divided according to the above-mentioned procedure.