Monday, 8 March 2021

Woman/Daughter's Rights in Ancestral Property

 Women’s rights to inherit and own a property in India has come a long way over the years. The change is to such an extent that when it comes to planning for and managing the wealth, Indian women have become quite assertive and open about it. Development in the Indian succession laws is one of the reasons behind this change.

For example, earlier under the Hindu law of succession, the inheritance rights of women were limited. While sons had complete right over their father’s property, daughter’s enjoyed this right only until they got married. However, the 2005 amendment to the Hindu Succession Act now grants the same rights, duties and liabilities to daughters that were earlier limited to sons.

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Inheritance rights of daughters when the property is not ancestral

Property under the Hindu law has been divided between ancestral and self-acquired property. Ancestral property is one that has been inherited up to four generations of male lineage and has stayed undivided throughout this period. Whereas, the self-acquired property is one that has been bought by the father with his own money.

When the property to be inherited is an ancestral property, an equal share accrues from the time of birth itself, be it a daughter or a son. However, if the property is the self-acquired property of the father, then the father has all the right to dispose of such property in any manner he deems fit. In the case of self-acquired property, a father can decide to not give the property to his sons or daughters and he has the option to gift or will it to anyone.


Inheritance rights of daughters when father dies without a will

In case a father has died intestate (without making a will), the property is divided among the legal heirs equally. This means that both ancestral and self-acquired property of the father will be divided equally among the mother and the children in equal shares.


Rights of inheritance over the ancestral and self-acquired property after the 2005 amendment

As stated above, before the Hindu Succession (Amendment) Act, 2005, only sons had a share in the ancestral property, however, after the amendment, daughters also hold an equal share as that of a son in the ancestral property.

Whereas, in case of self-acquired property, the father has a right to gift or Will the property to anyone he deems fit, and the daughter cannot raise an objection over such transfer. Thus, if the property is a self-acquired property of the father and he has gifted or willed such property to someone by his own will, without any coercion, undue influence, fraud or misrepresentation, a right cannot be claimed over the property.


Inheritance rights when the daughter is married

The marital status of a daughter does not affect her right to inherit her father’s ancestral property, following the 2005 amendment to the Hindu Succession Act. As per the amendment, a daughter is recognized as a coparcener in the ancestral property, i.e. she has a right by birth in the ancestral property and thus, a daughter will have an equal share in the ancestral property as that of a son even after marriage.

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Inheritance rights if the daughter was born or father died before 2005

It does not matter if the daughter was born before or after 9th September 2005 that is the date when the amendment to the Hindu Succession Act was carried out. A daughter will have the same rights as that of a son at the time of partition. In a recent remarkable judgment delivered on 11.08.2020, the Supreme Court has held that a daughter will have a share in ancestral/coparcenary property under the Hindu Succession (Amendment) Act, 2005, even if her father had died before the 2005 Amendment Act.


Inheritance rights of daughters under Muslim, Christian and Parsi laws

Since people belong to different religions and faiths in India, it is difficult to apply just one set of laws and rules in respect of matters related to family affairs. Such matters are governed by personal laws for different religions, for both males and females. 

The Indian Succession Act was enacted in 1926 with an object to consolidate the enormous number of laws that existed in relation to inheritance and succession. However, the succession laws related to Hindus and Muslims were excluded from the purview of this Act. 

Inheritance Laws for Muslims

For Muslims, in case of non-testamentary succession, Muslim personal laws apply - as per the Muslim Personal Law (Shariat) Application Act, 1937. Muslim laws for succession are not codified and there are four sources of personal Islamic law which govern the same - the Holy Quran, the Sunna, the Ijma and the Qiya. There are two types of heirs in Muslim law- the Sharers (ones entitled to a certain share in the deceased’s property) and the Residuaries (the ones who take up the share in the property that is left over after the sharers take their part). Inheritance of property in Muslim law comes only after a person dies and not by birth, unlike under the Hindu Succession Act. Muslim law does not create any bias between the rights of men and women. Once the ancestor dies, both the female and male individuals become legal heirs of the inheritable property. However, it has been seen that the quantum of share is double for Muslim males as compared to Muslim females. The reason for this is that the women receive Mehr and maintenance from her husband and the males, on the other hand, are duty-bound to maintain their wives and children.  

Inheritance Laws for Christians

Christians (and Jews) are governed by the Indian Succession Act, 1925, specifically by Sections 31 to 49 of this Act. Under this Act, Christians inherit equally, irrespective of the gender. If the father or mother die intestate, a daughter would inherit equally as her brother(s). 

In case the deceased has left behind a widow and lineal descendants, a widow will get one-third share in his estate and the remaining two-thirds will go to the lineal descendants. If there are no lineal descendants but other kindred is alive, she will get half of the share and if the case is that she is the only one surviving, without any kindred or lineal descendants, the whole estate will belong to the widow. 

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Inheritance Laws for Parsis

For Parsis, the Indian Succession Act, 1925 is applicable for matters of intestate succession - specifically Sections from 50 to 56 of this Act. Even for Parsis, both males and females inherit equally, irrespective of gender. 

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