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

Property rights of a son on mother’s self-earned property – Issues and the Law

Property rights of a son on mother’s self-earned property

There has been such a massive change in the social milieu in our country that now issues arise regarding a mother’s property too – reflective of the fact that women have shares in the family property now.

In further lines of succession of property owned by a woman, a son can claim a share in his mother’s self-earned property only if the mother wants. But if the mother dies intestate, the issue of claim arises.

Distribution of property among family members of the deceased when the person has died intestate has always been a challenging task.  The issue becomes more complicated when the property consists of both ancestral and self-earned property.

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

Self-earned or Self-acquired property refers to the property:

  • made by a person by his resources or
  • which he has inherited under the law of succession or
  • acquired through Will or
  • which has come to him after partition.

How an individual deals with self-earned property:

  • The Law gives an individual the full right to deal with the self-earned property in any manner that he pleases; whether it is transferring the property by way of gift, sale or a Will.
  • A person can dispose of the self-earned property to the exclusion of his heirs. The entire property can be gifted to a third person/stranger.
  • No legal heir can claim any right over the said property till the time the owner of the property is alive.
  • The legal heirs can exert their right only if the owner dies intestate.

Personal and Statutory Laws governing property rights:

The right of the children in the property of their mother largely depends upon the personal law and statutory law governing such rights.

In India, the personal laws are related mostly to the religion of the person.  For Hindus, Muslims and persons of other faiths, there are different personal laws.

Under Hindu Law, a woman is the absolute owner of the property which she acquires by any means: gift, will, inheritance. This property becomes her self- acquired/self-earned property. She can choose to transfer the entire property to any person other than her husband and her children.

Also Read: Gift Deed- Implications, Interpretations and Information

Can a son claim on the self-earned property of his mother?

During the lifetime of the mother, a son cannot claim any share in her self-acquired property.  

However, if a Hindu female (mother) dies intestate, the property devolves among legal heirs as per the provisions of the Hindu Succession Act. The legal heirs are

  • Sons Daughters (if predeceased, their children) Husband

The children and husband of the deceased woman (mother) have equal inheritance rights.  Other legal heirs follow if the first order is missing, i.e. a woman dies leaving no children, no grandchildren and no husband, then the legal heirs are:-

  • Mother and father
  • Heirs of father
  • Heirs of mother

In the case of Hindus,

  • A son can, therefore, claim a right in the self-earned property of his mother if the mother has died intestate.
  • Both son and daughter have equal rights.
  • Even the share of ancestral property falling to the mother after the partition of the property becomes her absolute property and is treated as her self- acquired property.

For Muslim mothers,

  • It is the personal laws which govern the right of her son in the self-earned property.
  • Under Muslim law also, a woman becomes the absolute owner of the property which she has acquired by any means.
  • Generally, there is no distinction like the ancestral or self-acquired property under Muslim Law.
  • The children of a Muslim mother cannot claim any right during her lifetime.  Inheritance opens only on the death of the person.

Also Read: Can NRIs buy property jointly with resident Indian?

For persons of other faiths, the right of the children in the property of the mother is governed by the Indian Succession Act. The relatives of the woman and her children are given preference over her husband and his relatives.

The issue of a son’s claim would therefore largely depend on the personal laws governing that particular segment and the line of succession.

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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.

Can a father give his property to one son?

Can a father give his property to one son

The property has most of the time been a bone of contention among the family members. Between a father and his children, the distribution of property can cause problems if the father has to make choices and distribution is not equal. It is always advisable to get timely legal advice in property matters and place all documents in order.

A father’s right to deal with his property has to be exercised as per the provisions of law:

  • Statutory laws
  • Personal laws

If the father has self-acquired property, he is free to deal with it as his children have no right to claim it during his lifetime. If he dies intestate (without leaving a will behind), all children are entitled to get it as legal heirs.

However, if the property is ancestral he cannot deal with it freely as per his wish as all his children have a share in that property and his sons can claim partition of the same.

Read: Lawyer Nidhi Singh interview on Asian Voice

What is self-acquired property?

A property acquired by a person:

  • Purchased with own resources
  • As a gift
  • Through a testamentary document, e.g. will
  • Received as a legal heir – i.e. share of ancestral property received after partition or share of any other property acquired as a legal heir.
  • When a Hindu dies intestate, his property devolves as per Section 8 of the Hindu Succession Act, and such property which comes in the hands of a legal heir becomes his self acquired property.

Read: Equal inheritance rights to daughters

Distribution of self-acquired property of a father:

  • A father is within his rights to give the self-acquired -property to his one son to the exclusion of other children.
  • During his lifetime, his children have no right to claim it. He can pass the same to his one son by gift or by will.
  • However, if another son has contributed towards the purchase of self-acquired property of the father and he can prove his contribution, he has a right in the said property. Then in such a situation, a father cannot pass the self-acquired property to one son excluding the son who has contributed.

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

What is the ancestral property?

  • A property which has passed on undivided up to four generations of male lineage is called ancestral property. The property should be four generations old. A person inherits the property as a descendant.
  • The property inherited from father, grandfather or great grandfather becomes ancestral property.
  • The property inherited from mother, uncle, grandmother or any other relative is not ancestral property.
  • The property received as a gift or through a will is not ancestral.

Read: Before you plan to take away inheritance money from India

Distribution of ancestral property of a father:

  • In an ancestral property, all the sons have a right by birth and therefore, the father cannot give the ancestral property to one son to the exclusion of others. After amendment of 2005 in the Hindu Succession Act, even daughters are coparceners and have a right in the ancestral property.
  • A father cannot freely give the ancestral property to one son. In Hindu law, the ancestral property can be gifted only under certain situations like distress or for pious reasons. Otherwise, the ancestral property cannot be given away to one child to the exclusion of all others.

For Muslim and Christians, there is no concept of ancestral property. The property can be given to one son as per the limit permitted under personal law for Muslims.

For Christians, the property is considered as self-acquired despite the mode of acquisition and rights are governed as per the Indian Succession Act, 1925.

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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.