Property rights and inheritance laws in India

In India, property inheritance holds immense significance since it relates to protecting lineage and legal rights of heirs over assets and wealth after the owner’s death. Property inheritance in India can be complex because of diverse cultural and religious backgrounds. There are laws such as the Indian Succession Act 1925 and the Hindu Succession Act 1956, which lay down several provisions ensuring the fair distribution of assets and property. It also prevents the possibility of property-related disputes and ensures all heirs get equal rights to inherit property. In this guide, we will discuss in detail the rights of legal heirs and all about property inheritance laws in India.

 

What is inheritance?

Property inheritance refers to the transfer of property, title, debts and obligations to the legal heir upon the death of the owner. Property transfer in India is governed by several laws and regulations based on religion. There are mainly two ways to inherit a property:

• Testamentary succession: In this process, the person owning the assets leaves a will stating how the assets will be transferred to their legal heirs. The person creating the will is referred to as the testator while the person inheriting the property is known as the legatee.
• Intestate succession: When a person dies without leaving a will (intestate), the property gets transferred and distributed among their legal heirs in accordance with the laws of succession. To claim their legal right over the deceased person’s assets, the legal heirs must obtain a legal heir certificate from the relevant local authority.

Inheritance mainly concerns the transfer of wealth and immovable property, such as land and houses of a person, to their lawful heirs. It will also include financial assets such as bank accounts or stocks and personal belongings such as jewellery or vehicles. Moreover, the inheritance process also means the outstanding debts or financial obligations of the deceased person get passed on to their legal heirs.

 

 

Factors governing inheritance in India

Some crucial factors help determine who inherits the deceased person’s property. These include:

• Nature of property: This relates to whether the property is self-acquired or an ancestral property, as it will determine how the property will be inherited.
• Family dynamics: Usually, family settlements and partitions is a major factor in deciding how the property will be distributed among the legal heirs. There are laws that ensure that future generations of the family, irrespective of their parent’s marital status, get a fair share in the ancestral property.
• Will: The presence of legal documents, such as a valid Will by the property owner, death certificate of the deceased, legal heir certificate, property deeds, etc., is crucial when dealing with matters related to property inheritance.
• Gender equality: There have been various judgements by the Supreme Court of India which highlight that daughters have the same rights as sons when it comes to inheriting a father’s property. This promotes gender equality and reflects a shift in the traditional practices when only male heirs were allowed to inherit ancestral property.
• Property management: There are restrictions on gifting ancestral property to ensure it stays with the family lineage and provides financial security to the descendants. These laws also help prevent arbitrary disposal of property that could potentially impact the family’s long-term interests.

Click to read about ancestral property in detail

 

What is an ancestral property and how is it different from self-acquired property?

An ancestral property refers to a property inherited by a male Hindu family member from his father, paternal grandfather or paternal grandfather’s father. If any other relative inherits the property, it is not considered an ancestral property. An ancestral property mainly has the following characteristics:

• It has to be held by a Hindu Joint Family for more than four generations.
• It should be undivided and if it is partitioned, each person must receive a separate and equal share in the property.
• In case four generations are alive, all of them will have joint interest and possession over the property.
• The right in the ancestral property is by birth and not by the death of their predecessors.

On the other hand, a property purchased by a person using their own resources is known to be a self-acquired property. A self-acquired property becomes the ancestral property after a point. That is, a self-acquired and undivided property of a person’s great-great grandfather eventually becomes ancestral property. Similarly, when an ancestral property is divided among members of a joint Hindu family, it becomes self-acquired property in the hands of a family member.

 

Who is a legal heir in India?

A legal heir is an individual recognised by the law to inherit the property and assets or liabilities of a deceased person, either by law or by a will. It is crucial to identify the legal heirs of any person who owns a property. Heirs are the successors for property claims and insurance coverage. Matters relating to property inheritance and other claims will need to be taken up by their legal heirs. However, one should note that the concept of an heir differs from religion to religion. For example, the Hindus Succession Act (HSA) applies to Hindus, Buddhist, Jains and Sikhs, and those who have converted to any of these religions or are born out of wedlock. The Hindu Succession Act does not apply to Indian Muslims and Christians since they have their personal law to determine how property would be inherited by their legal heirs. 

 

Legal heir as per Hindu law

According to the Hindu Succession (Amendment) Act, 2005, the following are the legal heir of a person:

Class 1 heirs

• Wife (Widow)
• Mother
• Son
• Daughter
• Deceased son’s daughter
• Deceased daughter’s daughter
• Daughter of a pre-deceased son of a pre-deceased son
• Deceased son’s wife (Widow)
• Wife (widow) of a pre-deceased son of a pre-deceased son
• Deceased son’s son
• Deceased daughter’s son
• Son of a pre-deceased son of a pre-deceased son

Class 2 heirs

If the class 1 heirs are not alive, the property will be inherited by the class 2 heirs as defined under the Indian Succession Act. The inheritance will be passed from one category to another (from 1 to 8) if no one is alive in a particular category.

Category 1:

Category 2:

• Daughter of son’s daughter
• Son of son’s daughter
• Brother
• Sister

Category 3:

• Daughter of daughter’s daughter
• Son of daughter’s daughter
• Son of daughter’s son
• Daughter of son’s daughter

Category 4:

• Son of the sister
• Daughter of the sister
• Daughter of the brother
• Son of the brother

Category 5:

• Mother of the father
• Father of the father
• Father’s wife (widow)
• Brother’s wife (widow)

Category 6:

• Sister of the father
• Brother of the father

Category 7:

• Mother of the mother
• Father of the mother

Category 8:

• Sister of the mother
• Brother of the mother

 

Legal heir of female Hindu

The property of a Hindu female who dies intestate will be transferred to:

• Daughters and sons (including children of any dead son or daughter) and husband
• Husband’s heir
• Mother and the father
• Father’s heirs
• Mother’s heirs

 

Legal heir under Muslim law

According to the Muslim Personal Law (Shariat) Application Act, 1937, the following are the legal heirs of a person:

• Husband (Only legal)
• Wife (entitled to multiple wives and divorce wife if she is on Iddat period)
• Son (Not entitled to step, adopted and illegitimate son)
• Daughter (Not entitled to step, adopted and illegitimate daughters)
• Grandson (Only entitled to son’s son, not daughter’s son)
• Granddaughter (Only entitled to son’s daughter)
• Father (Not entitled to step or illegitimate father)
• Mother (Not entitled to step or illegitimate mother)
• Grandfather (Only entitled to father’s father)
• Grandmother (Entitled to both maternal and paternal grandmother)
• Brother (Entitled to all brothers sharing same father and mother)
• Sister (Entitled to all sisters sharing same father and mother)
• Paternal brother (Entitled to brothers sharing same father, but different mother)
• Paternal sister (Entitled to sisters sharing same father, but different mother)
• Maternal brother (Entitled to brothers sharing the same mother, but different father)
• Maternal sister (Entitled to sisters sharing the same mother, but different father)
• Nephew (Only entitled to brother’s son)
• Paternal nephew (Only entitled to paternal brother’s son)
• Son of full brother’ son
• Son of paternal brother’s son
• Full brother of the father
• Paternal brother of the father
• Son of father’s full brother
• Son of father’s paternal brother
• Son of father’s full brother’s son
• Son of father’s paternal brother’s son
• Son of father’s full brother’s son’s son
• Son of father’s paternal brother’s son
• Son of father’s full brother’s son’s son
• Son of Father’s paternal brother’s son’s son

 

Legal heir under Christian law

As per the Indian Succession Act, 1925, Section 32, a Christian person’s legal heirs are defined below:

• Wife (Widow)
• Son
• Daughter
• Father
• Mother
• Brother
• Sister
• The direct bloodline (Such as son and his father, grandfather and great- grandfather)
• If a person has died without making a will, and only his great- grandfather, an uncle, and a nephew are left, no person will take equal shares with direct kinship, under the third degree of kinship.

 

Legal heir under Parsi law

As per the Indian Succession Act, 1925, section 54, the legal heirs of a Parsi person are defined below:

• Father
• Mother
• Full brother
• Full sister
• Paternal grandparents
• Maternal grandparents
• Children of maternal grandparents and their lineal descendants
• Children of paternal grandparents and their lineal descendants
• Parents of paternal grandparents
• Parents of maternal grandparents
• Children of paternal grandparents’ parents and their lineal descendants
• Children of maternal grandparents’ parents and their lineal descendants

 

Inheritance and role of a will

As defined in the Indian Succession Act, 1925, Section 2 (H), a will is a legal declaration of the intention of a testator (person who has created the will) regarding their property that they want to be carried into effect after their death. Thus, a will is a medium through which a person can convey their intention of how their assets should be distributed or transferred after their death. The presence of a will also eliminates the chances of a legal disputes or misunderstandings between the legal heirs because it is a legally binding document. It protects the rights and interests of the person’s family and their dependents, ensuring a smooth transfer of assets.

 

Inheritance and role of a legal heir certificate

When someone passes away and their family needs to inherit their assets, the legal heirs usually need two important papers: one that shows the person has died (death certificate) and another that proves who can inherit their things (legal heir certificate). A legal heir certificate is a document that has legal enforceability and states the relationship between the deceased and his legal heirs. This ‘post-demise’ document, which states the names of all legal heirs of the deceased, is crucial for the surviving members to stake their claim in the property of their late relation. Understandably, a great deal of diligence and inquiry are employed on the part of the authorities, before issuing a legal heir certificate.

Who can apply for a legal heir certificate?

As per the laws, the class 1 legal heirs of a deceased individual, including spouse, children (son / daughter) and parents, can apply for a legal heir certificate. Class 2 heirs of the individual can also apply for the legal heir certificate.

 

Inheritance and role of private family trusts

According to legal experts, a property owner can form a trust, which provides them with flexibility and control over the distribution of their assets after their demise. One can set up a trust during their lifetime or by way of a will, which holds the ownership of the properties and governs how the income and later the ownership will be transferred or distributed among the legal heirs.

 

What is the Hindu Succession Act?

The Hindu Succession Act lays down provisions relating to intestate succession (when a person dies without a will) among Hindus. An amendment to this act was made in 2005 to add or remove different clauses within the earlier Act.

• Section 4 (2) amendment: The Section 4(2) of the Hindu Succession Act did not include agricultural lands under its scope of inheritance. This is revoked in 2005 by adding the right to claim inheritance over agricultural lands. The Act was amended to ensure greater equality between men and women, so that women could exercise their rights on the lands they have been toiling.
• Revamping of Section 6: Section 6 of the Hindu Succession Act stated that women could enjoy property rights only if it was gifted by the woman’s relatives or strangers. However, in both cases, the absolute ownership or the rights were retained by the relatives or the strangers. The revamping of Section 6 and adding new clauses helped in making women enjoy equal rights as their brothers or other male members of the family.
• Omitting Section 3: Section 3 of the Hindu Succession Act did not grant women the right to seek partition within a house unless the male members wanted so. This reduced the autonomy and rights of the women and hindered their privacy. As a result, the amendment omitted Section 3 of this Act.

 

Property rights and inheritance of husband

Is the husband a legal heir of the wife in India?

According to the Hindu Succession Act, 1956, the husband is the legal heir of a wife and has the right to claim a share in her property if she dies intestate (without will). However, the husband’s exact share of the property will depend on various factors, including the presence of other legal heirs. If the wife has a will, the property will be distributed to those mentioned in the will. A husband does not have any right to his wife’s property while she is alive.

A married woman’s property, upon her death, will be distributed among her legal heirs. Her legal heirs include her husband, her children, grandchildren, her parents and her husband’s heirs. Further, according to the Hindu Succession Act (HSA), 1956, if a woman’s property is self-acquired, the husband is predeceased and she does not have children, the property will go to the husband’s heirs and not to her parents, siblings or other relatives.

According to legal experts, If the wife gets her share in her lifetime, the husband can inherit the same. If she hasn’t inherited from her parents or ancestors during her lifetime, the husband cannot claim it.” If a man has bought property in the name of his wife with his own finances, he can retain the ownership even after her death.

As per the Indian Succession Act, 1925, in case of a Christian woman who dies without a will, the property will be inherited by her husband and children. However, in case of Muslim women, the inheritance will be governed by the Sunni or Shia law depending on the sect to which they belong.

Who inherits a woman’s assets when she dies without a will?

In India, if a woman dies intestate, the distribution of her assets is governed by the laws applicable to her religious community. According to the Indian Succession Act 1925, which is applicable to Christians, the property of the woman who dies intestate will be inherited by her husband and children. The assets will go to her husband’s heirs if she does not have children. If a single woman dies intestate, her assets will be inherited by her parents or their heirs if they have passed away.

 

Property rights and inheritance of wife

#1. Property rights of an abandoned first wife

Suppose a Hindu man leaves his wife without a divorce and marries another. In this case, his first marriage has not been annulled by law and the first wife and their children are lawful heirs. If the two are divorced, the first wife cannot stake any claim on the property, and all her belongings are solely hers. Even in the case where the husband and wife may have contributed towards the purchase of a property, it is important to have documented proof of percentage of monetary contribution of each in case of a divorce. This is important especially in case you want to file a property eviction suit.

#2. Inheritance of the second wife

A second wife has all the legal rights on her husband’s property, provided her husband’s first wife had already passed away or divorced before the husband remarried. Her children have equal rights on their father’s share as do the children borne of the first marriage. In case the second marriage is not legal, neither the second wife nor her children enjoy the privilege of being legal heirs in the ancestral property of the husband.

Legal heir of a married woman in India

The distribution of a married woman’s property, that is, the property of a wife after her death, will depend on whether she has left a will or she died intestate.

• In case of a will, the property will be distributed to the persons specified in the will. The will should be in writing and must have been signed by the woman in the presence of a minimum of two witnesses along with their signatures.
• In the absence of a will, a Hindu woman’s property will be inherited by her legal heirs (class 1) her children. Her husband’s share will depend on the other heirs. If the woman dies without children, her husband cannot inherit her property. 

First wife can seek declaration of husband’s second marriage as void

According to a Allahabad High Court has ruling in August 2023, a first wife’s application under Section 11 of The Hindu Success Act, 1955, seeking declaration of her husband’s second marriage as void is maintainable. While allowing the first wife to pursue legal recourse to nullify the second marriage on the grounds of its illegality, the HC dismissed an appeal by the second wife. The court stated that if the first wife is deprived of seeking a remedy under Section 11 of the Hindu Marriage Act, it would defeat the very purpose and intent of the Act. The protection offered to legally wedded wives under sections 5, 11, and 12 of the Hindu Marriage Act would become insignificant in such a scenario.

See also: All about property rights of the wife and her children in a second marriage

How to transfer property to wife after husband’s death?

• Intestate succession: If the husband dies without a will, the transfer will take place as per the inheritance laws in India.
• Determination of legal heirs: According to the Indian Succession Act, Hindu Succession Act and other personal laws, the property is transferred based on a hierarchy of heirs and as per the religion of the deceased husband.
• Application for succession/legal heir certificate: The wife, who is the primary legal heir, should apply for a succession certificate or legal heir certificate from the relevant court.
• Mutation of property titles: The legal heirs must initiate to formalise the property transfer, which requires updating property records with the local authority with supporting documents.
• Testamentary Succession: In case of a will, the property will be transferred to the beneficiaries specified in the will.

 

Property rights and inheritance of daughters

Does a daughter have a right to the father’s property after marriage?

After an amendment was made to the Hindu Succession Act in 2005, daughter get equal rights over their father’s property. Before this amendment, only sons were entitled to claim their share over the deceased father’s property while daughters could do so only till they remained unmarried. The law earlier was primarily based on the belief that a woman associates herself to the husband’s family after marriage and thus does not have any right in another Hindu Undivided Family (HUF). However, after the new law, married and unmarried daughters get the same rights on their father’s property as their brothers. Similarly, they are entitled to equal duties and liabilities as their brothers.

In 2005, it was also ruled that a daughter has the same rights, provided that both, father and daughter, were alive on September 9, 2005. In 2018, the SC stated that a daughter can inherit her deceased father’s property no matter whether the father was alive on this date or not. Hereon, women were also accepted as coparceners. They can demand a share in the father’s property.

In 2022, the Supreme Court ruled that daughters have the right to inherit their parents’ self-acquired property and any other property of which they are absolute owners, adding that this rule would apply even in cases where the parents of a daughter died intestate before the codification of the Hindu Succession Act, 1956.

Can a daughter-in-law claim maintenance from father-in-law?

In a judgment, the Patna High Court stated a daughter-in-law cannot claim maintenance from her father-in-law as per Section 125 of the Code of Criminal Procedure. However, the daughter-in-law can claim the same under Section 19 of the Hindu Adoption and Maintenance Act. As per the ruling, the provision of Section 125 CrPC in the petition under Section 19 of the Hindu Adoption and Maintenance Act, 1956, cannot be applied.

Can unmarried adult daughter claim maintenance from father?

As per the law, an adult daughter unmarried cannot seek maintenance from her father Section 125 of the Code of Criminal Procedure on the ground that she does not have means to support herself, as per a ruling by the Kerala High Court. However, to make this claim that she is unable to maintain herself because of physical, mental abnormality or injury, she must to produce evidence of the same.

What is the share of married daughters in father’s property?

As per a Supreme Court judgment, a daughter is entitled to an equal right in her father’s ancestral property along with her brothers. However, this does not mean the property will be equally divided between a brother and a sister after the demise of the father. The distribution or transfer of the property will be based on the share of each heir as per the applicable inheritance laws, considering the other legal heirs also have rights over the deceased’s property.

Can a son mortgage a property in which daughters have a right?

According to a ruling by the Karnataka High Court (HC), a son does not have the right to mortgage a family property in which daughters also have equal rights. If the father dies without leaving a will, the son cannot unilaterally mortgage the property since the property belongs to the daughters the son equally.

 

Property rights and inheritance of widows in India

The Hindu Succession Act, 1956, establishes that a deceased person’s property will be distributed among his heirs in Class-I of the schedule, if he dies without leaving a will. If a person dies without leaving a will, his widow takes one share. Class-I heirs of the deceased would be the widow, his son, his daughter, his mother, the son of a predeceased son, the daughter of predeceased son, the widow of the predeceased son, the son of a predeceased daughter, the daughter of predeceased daughter, the son of predeceased son of predeceased son, the daughter of the predeceased son of a predeceased son, the widow of predeceased son of a predeceased son.

Is widow liable to provide maintenance to in-laws?

According to Section 125 of the CrPC (Code of Criminal Procedure), which deals with maintenance of wives, children and parents, a widow is not liable to provide maintenance to her in-laws. In a High Court judgement, in the Shobha versus Kishnarao and Kantabai case, it was stated that even those entitled to receive maintenance under this section have to fulfil the condition that they were not able to maintain themselves.

Challenges faced by widows in claiming property rights

Despite the provisions in the law, widows in India have faced restrictions for claiming their rightful share of their husband’s property due to the old cultural norms, patriarchal attitudes or simply lack of awareness about legal rights. To secure one’s rightful ownership rights, it is important for widows to understand the inheritance laws and legal provisions. One can also approach a legal professional and seek assistance. Individuals can create a will specifying their wishes regarding property distribution.

Impact of denying Stridhana to widows

In December 2022, the Calcutta High Court stated that denying rights to stridhana to widows is equivalent to domestic violence against them. Stridhana refers to movable, immovable property, gifts, etc., that a woman receives during prior to marriage, at the time of marriage, during childbirth, and widowhood.

What is a woman’s co-ownership rights in husband’s ancestral property?

In many Indian states, when the menfolk migrate to cities for better work opportunities, they may be temporarily leaving behind their families at home. In a bid to give economic independence to women in Uttarakhand, a state where a lot of men migrate for work, the state government has brought in an ordinance, to give co-ownership rights in the husband’s ancestral property. This move is set to benefit over 35 lakh women in Uttarakhand. Note that a divorced woman who remarries, will not be able to become a co-owner. However, if a divorced husband is unable to bear her financial expenses, the woman shall be the co-owner. A divorced woman who does not have a child or her husband has been missing/absconding for a period of seven years, shall also become a co-owner of land owned by her father.

 

Property rights and inheritance of single women

Who inherits property of childless woman dying intestate?

According to a Supreme Court judgment, property of a female Hindu who leave behind no children and die without leaving a will goes back to its source. For example, the property inherited from her father or mother would go to the heirs of her father while the property inherited from her husband or father-in-law would go to the heirs of the husband. In case of married women who leave behind their husband and children, her properties, including the properties which she inherited from her parents, would devolve upon her husband and her children as provided in Section 15(1)(a) of the Succession Act.

What are the property rights of an unwed mother and child?

There is no clear rule regarding how an unwed couple with child/children would be given their due in case there is a custodial fight between both (unwed) parents. If parents belong to the same religion, then their personal laws are looked into. If they do not belong to the same religion, then the minor child’s opinion is asked and the child is also counselled and scrutinised for any psychological impact. Note that, as per the Hindu personal law, a mother is the natural guardian of a child till he or she is five years old. Post that, the father becomes the natural guardian. On the death of the father, the mother becomes the guardian.

Also read: What is a Muslim woman’s right to property?

 

Property rights and inheritance of children

What are the property rights of adopted children?

An adopted child is also a Class-I heir and enjoys all the rights that a biological child is entitled to. However, an adopted child cannot stake claim to his adoptive father’s property in case this father was disqualified from succeeding to any property because of a crime that he might have committed. If the father had converted to any other religion and the adopted child is practising the same religion as well, even in this case, the adopted child cannot inherit the ancestral property.

In November 2022, the Karnataka High Court also ruled that an adopted child has the same right as a biological child, and they cannot be discriminated against while being considered for their parents’ job on compassionate grounds.

Is adopted child a coparcener of birth family?

According to a ruling by the Telangana High Court dated June 27, 2023, an adopted child stops being a coparcener of their birth family and consequently gives up any right or interest in the family ancestral property. It said that only if a partition took place before the adoption and the property was allotted to the adopted person could they carry that property to their new family.

Can children born from a widow’s 1st marriage inherit property from her second husband?

Children born out a widow’s first marriage have a right in her property the woman receives from her second husband, the Gujarat High Court held in June 2022. This remains true even if the children were born out of wedlock or through an illicit relation, the high court added.

How is property inherited from father in India?

According to the Hindu Succession Act, a Hindu father’s property is distributed equally among the Class 1 legal heirs, which include his widow, children and mother. If the mother is not alive, the property will be distributed equally among the children.

Rights of children born from a second marriage

According to the law, children born from a second marriage have equal rights to ancestral property, similar to children from the first marriage. This ensures equality among all descendants of the family. The Supreme Court of India has upheld the rights of all children to inherit ancestral property irrespective of their parents’ marital history.

 

Property rights of half-blood children

Half-blood children are born of those where one child is born of the father with another wife/partner and the second child might be born of the wife with another husband/partner. In short, when there is one common parent (happens in case of remarriage or divorce), the child closer to the one whom he/she’s inheriting from will be preferred. Example: A marries B. C is A’s son from A’s first wife. D is B’s son with D’s first husband. If A’s property were to be divided, preference would be given to C.

Property rights of illegitimate child

Children born of void marriages, annulled/voidable marriages, illicit relationships, through concubines and those born of marriage not valid for want of proper ceremonies are considered to be illegitimate. Section 16 (3) of the Hindu Marriage Act, 1955 – provisions of which are applicable to Hindus, Sikhs, Jains and Buddhists mention that illegitimate children are only entitled to the property of their parents and not of any other relation. Such children have the right to their parent’s self-acquired and ancestral properties.

Does adopted son have any stake in biological family property?

An adopted son becomes a coparcener in the adopter’s family and loses the right of succession in his biological family properties, according to a Karnataka High Court ruling. As per the law, if the adoptee was the member of the joint family at the time of adoption, his rights in the joint family property extinguish unless, he possessed those properties by way of partition. It was observed that on adoption the adoptee gets transplanted in a family in which he is adopted with the same rights as that of a natural born son and as such, transfer of the adopted child severs all his right with the family from which he was taken in adoption. The HC held that, he loses right of succession in the genitive family properties.

Can children claim their share on their parents’ property after divorce?

Children have inheritance rights over their parents’ property based on the relevant inheritance laws in India.

Also read: Property rights of illegitimate children

 

Inheritance of father’s property after death

Upon the death of an individual who is a male and who has left behind a will, his properties will be distributed among the beneficiaries mentioned in the will. However, in the case where no will exists, the property will be distributed according to the personal laws as applicable. These include:

• The intestate succession laws under the Hindu Succession Act, 1956
• Muslim Personal Law
• Indian Succession Act for Christians and Parsis

Can you sell father’s property after his death?

As per the laws, a person has the right to sell the father’s property after his death, if they are the rightful heir of the deceased individual and have legally got the property transferred in their name. Once the property is legally in their name, they can sell the property. However, all the legal heirs should agree to the sale and sign the relevant documents, including the no-objection certificate.

 

Property rights and inheritance of mothers

What is legal right of a mother over a son’s property?

A mother is a legal heir to her deceased son’s property. Therefore, if a man leaves behind his mother, wife and children, all of them have an equal right on his property. Do note that if the mother passes away without creating a will, her share in her son’s property will devolve upon her legal heirs, including her other children.

Mother not legal heir of man who dies intestate

According to the Indian Succession Act of 1925, the assets of a man who dies without leaving a will are distributed between his widow and children, as per a Madras High Court (HC) ruling. The mother of the deceased does not have any right in the properties of her late son. She is entitled to get a share in her late son’s property only in the absence of his surviving wife and children. As per the provisions under Section 33 and 33-A, if a Christian dies intestate leaving behind a widow and lineal descendants, 1/3rd of the property would go to the widow and remaining 2/3rd will go to the lineal descendants.

Does a mother have right to relinquish property rights of minor children?

According to a Telangana High Court ruling, a mother has no right to relinquish the rights of her minor children on their ancestral property without their knowledge and consent. The high court mentioned that this legal position has been pronounced by orders of the Supreme Court. As per the law, relinquishment or partition or alienation of a coparcener’s share in a Hindu Undivided Family property can only be done by way of a registered instrument. Any plea of oral partition/relinquishment is untenable and unacceptable, as per the Supreme Court ruling.

Read full coverage here.

 

Inheritance and property rights of live-in couples and their children

In 2015, the Supreme Court held that couples in a domestic partnership for a long time will be treated as married. While no religion in India accepts live-in relationships as legal, the law provides for some relief. Under the Criminal Procedure Code Section 125, women in live-in relationships are eligible for legal rights and maintenance. Children born of live-in relationships are also entitled to the parents’ self-acquired property as per the Hindu Marriage Act Section 16. Children can also claim maintenance. Do note that as per its ruling, the SC stated that it does not consider “walk-in and walk-out” relationships as live-in relationships. The rules are valid if the partners have cohabited for a long time. According to a ruling by the Supreme Court in 2008, children born to a live-in couple would have the same right of inheritance as a legal heir. However, children born out of people who have not entered into matrimony are only entitled to the property of their parents and not of any other relation, according to the Hindu Marriage Act, 1955.

 

Property rights of senior citizens

According to a ruling by the Calcutta High Court, on July, 23, 2021, senior citizen parents have an exclusive right to reside in the house of their son and daughter-in-law. The son and daughter were ‘at best licensees’ living in the property and hence, liable to eviction. Such licence comes to an end once the senior citizens are not comfortable with their children and their families, the court stated. The right of the senior citizen to exclusively reside in his own house must be viewed from the prism of Article 21 of the Constitution of India, the apex court ruled.

 

Rights of tribal woman to family property

The Supreme Court on December 9, 2022, asked the government to re-examine provisions in the Hindu Succession Act which deny tribal women the right of succession to their father’s property. Section 2(2), of the Hindu Succession Act ─ which guarantees equal shares for man and woman in their ancestral property ─ is not applicable to members of the Scheduled Tribes (ST). The ruling is based on the idea that when a daughter belonging to a non-tribal is entitled to equal share in the property of the father, there is no reason to deny such right to the daughter of a tribal community. Female tribal is entitled to parity with male tribal in intestate succession.

 

Impact of religious conversion on inheritance

The HSA holds that anybody who has converted to another religion can still inherit property. The law in India doesn’t disqualify a person succeeding to a property because they decided to change their faith. The Caste Disabilities Removal Act states that anybody who has renounced his/her religion can inherit property. However, the heirs of the convert do not enjoy the same rights. If the son or daughter of a convert practices any other religion other than Hinduism, they can be disqualified from inheriting the ancestral property.

 

Housing.com News Viewpoint

In India, the process of inheritance is governed by various laws and factors, including the location and religion. In case of an ancestral property, the process can become quite complex. To ensure that your properties get rightfully transferred to the beneficiaries, it is important to explore the various options – creating a will, forming a trust or creating a joint ownership for the property, etc. You can consult a legal professional who provide guidance related to property inheritance.

 

FAQs

Is right to property a legal right?

Owning a property is no longer a fundamental right because of an amendment to the Constitution Act 1978. However, it is very much a legal, human and constitutional right.

Can daughter claim father’s property after marriage?

Yes, as per law, a married daughter has every right to claim a share in her father’s property. She has as much right as her brother or unmarried sister.

What does the right to property include?

All Indians have the right to own property. They also have rights to acquire, manage, administrate, enjoy and dispose of their property. Unless any of this is in conflict with the law of the land, the person cannot be held guilty.

Does son have right on father’s property?

Yes, a son is a Class I heir and has right on the father’s property.

Got any questions or point of view on our article? We would love to hear from you. Write to our Editor-in-Chief Jhumur Ghosh at jhumur.ghosh1@housing.com