Laws of inheritance are highly complex and require clear understanding on part of the beneficiaries, before they stake their claim over a property that they assume belongs to them legally. This guide will answers some of those complex questions surrounding property inheritance in India.
What is ancestral property?
The Hindu Succession Act, 1956, and other legislation have not clearly defined what constitutes an ancestral property. However, in several of its orders, the Supreme Court has held that the property inherited by a male Hindu from his father, paternal grandfather or paternal grandfather’s father is ancestral property.
Ancestral property versus self-acquired property
While a property that the owner acquired using his own resources is his self-acquired property, a property that he inherits from his family members is an ancestral property.
What makes the demarcation between the two types of properties complex, is the fact that a self-acquired property becomes an ancestral property after a point. The reverse is also true – an ancestral property can also become a self-acquired property. 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. Similarly, the self-acquired and undivided property of a person’s great-great grandfather becomes an ancestral property eventually.
Who is an heir?
The Indian law, like most laws worldwide, recognises the concept of an heir. Heirs include those persons, who are legally entitled to inherit property from their ancestors. An ancestral property is divided among the legal heirs of the owner under various laws in India. This article will give you an understanding of inheritance, the concept of heir and property rights in India.
Who are legal heirs of an ancestral property?
An heir is a person, who is legally empowered to inherit the estate of his ancestors, who died without leaving a will (known as intestate). After the demise of such a property owner, matters relating to property inheritance and other claims will need to be taken up by their legal heirs.
It begs mention here that the concept of an heir is differs from one religion to another. This is also why their property rights in the deceased person’s property might also differ according to the religion they come from.
For example, the Hindus Succession Act (HSA) applies to Hindus, Buddhist, Jain 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. In this article, we will examine the property rights of those on whom the Hindu Succession Act is applicable.
Hindu Succession Act applicability
The HSA comes into question when a Hindu dies intestate (without leaving a will). Thereafter, succession depends upon the rules as carried in the HSA. In case of a Hindu man dying intestate, his property goes to the following and in this order of preference. The following chart shows the rightful heirs as per HSA.
Heir according to Hindu Succession Act
| Class-I heirs | Class-II heirs | Agnates | Cognates |
| i. Sonii. Daughteriii. Widowiv. Motherv. Son of a predeceased sonvi. Daughter of predeceased sonvii. Widow of predeceased sonviii. Son of a predeceased daughterix. Daughter of predeceased daughterx. Son of predeceased son of predeceased sonxi. Daughter of predeceased son of a predeceased sonxii. Widow of predeceased son of a predeceased son | i. Father ii. (1) Son’s daughter’s son, (2) son’s daughter’s daughter, (3) brother, (4) sister iii. (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’ daughter’s son, (4) daughter’s daughter’s daughter. iv. (1) Brother’s son, (2) sister’s son, (3) brother’s daughter, (4) sister’s daughter. v. Father’s father; father’s mother. vi. Father’s widow; brother’s widow. vii. Father’s brother; father’s sister. viii. Mother’s father; mother’s mother ix. Mother’s brother; mother’s sister. | Example: Father’s brother’s son or even father’s brother’s widow. Rule 1: Of two heirs, the one who is in nearer line is preferred. Rule 2: Where the number of degrees of ascent is the same or none, that heir is preferred who is closer to the common ancestor. Rule 3: Where neither heir is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously. | Example: Father’s sister’s son or brother’s daughter’s son Rule 1: Of two heirs, the one who is in nearer line is preferred. Rule 2: Where the number of degrees of ascent is the same or none, that heir is preferred who is closer to the common ancestor. Rule 3: Where neither heir is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously |
*Note: Agnates are relations through the males but not by blood or adoption. These can be relations through marriages. Cognates are relations through the females.
What is inheritance?
The term inheritance is exclusively used in the context of succession. Upon the death of an individual, his/her property, title, debts and obligations may devolve upon the heir. Although different societies treat inheritance differently, tangible and immovable property are often treated as inheritance. We will discuss inheritance in the light of the Hindu Succession Act in detail.
Can ancestral property be gifted?
An ancestral property can be gifted the following 3 conditions are met:
- It is a legal necessity
- For the benefit of the family estate
- With the consent of all the coparceners of the family
The Supreme Court has recently said the karta is free to gift a property for pious purposes of charity and religious acts. However, the act of charity does not cover gifting this property “out of love”, the apex court has ruled.
Can daughters claim father’s property after marriage?
The HSA was amended in 2005 and it gave equal rights to the daughter in terms of property. Prior to the Hindu Succession Amendment Act 2005, sons enjoyed rights over the deceased father’s property, whereas daughters could do so only till she was unmarried. It was understood that after marriage, a woman attaches herself to the husband’s family and therefore, has rights in another Hindu Undivided Family (HUF) altogether. Now, married and unmarried daughters have the same rights on their father’s property as their brothers. They are also 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.
Share of married daughters in father’s property
What is the share which married daughters can claim in their father’s property? According to the Supreme Court judgment, in her father’s ancestral property, a daughter gets an equal right along with her brothers. However, this does not mean the property will be equally divided between a brother and the sister after the demise of the father. Since inheritance laws also confer property rights on other legal heirs of the deceased, the division of the property will be based on the share of each heir according to the applicable inheritance laws. A married daughter having an equal share in her father’s property simply means that whatever share her brother claims, she will get the same share, too.
What happens to property inherited by single women?
Inherited property of childless woman dying intestate goes back to source: Supreme Court
Property of women who leave behind no children and die without leaving a will goes back to its source, the SC has ruled.
“If a female Hindu dies intestate without leaving any issue, the property inherited by her from her father or mother would go to the heirs of her father, whereas the property inherited from her husband or father-in-law would go to the heirs of the husband,” the SC observed while delivering its verdict in the S Abdul Nazeer and Krishna Murari, JJ case.
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.
Property rights and inheritance of mother on 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.
Inheritance of an adopted child
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.
No difference between adopted and biological child: Karnataka High Court
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. “A son is a son or a daughter is a daughter, adopted or otherwise, if such a distinction is accepted then there would be no purpose served by adoption,” the Dharwad Bench of the Karnataka High Court said.
Property rights and inheritance 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 in 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.
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.
Children born from a widow’s 1st marriage can inherit property from her second husband: HC
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.
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.
Inheritance of a man on deceased wife’s property
During the wife’s lifetime, the husband has no right over her property. If the wife passes away, her share will devolve upon her husband and children alike. Kolkata-based advocate Devajyoti Barman says, “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.
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.
Denying Stridhana to widows akin to domestic violence: Calcutta HC
The Calcutta High Court in December 2022 said that denying rights to stridhana to widows is equivalent to domestic violence against them.
What is Stridhana?
Stridhana includes movable, immovable property, gifts, etc., a woman receives during prior to marriage, at the time of marriage, during childbirth, and widowhood. Section 14 of the Hindu Succession Act, 1956, defines stridhan as a woman’s property made through the following sources:
- By inheritance
- Through will or a settlement
- At a partition
- In lieu of maintenance
- Gifts made to a woman before the nuptial fire
- Gifts made to a woman at the bridal procession
- Gifts made after marriage by a woman’s husband husband’s relations or parent’s relations and gifts from sons and relations
- Made in token of love by father-in-law, mother-in-law
- Gifts made by father, mother and brother
- Gifts given by her friends, etc.
- By personal skill or exertion
- Purchase and prescription with the help of her own funds
- Property received under a decree or award or through adverse possession
Can criminals claim inheritance?
The HSA states that those who have been proved guilty of serious crimes will not be allowed to inherit property.
Inheritance 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.
Inheritance of an illegitimate child
The following categories of children are legally known as illegitimate children:
Children born of void marriages.
Children born of annulled/voidable marriages.
Children born of illicit relationships.
Children born through concubines.
Children born of a marriage, not valid for want of proper ceremonies.
Section 16 (3) of the Hindu Marriage Act, 1955 – provisions of which are applicable on applicable to Sikhs, Jains and Buddhists, apart from Hindus – states that illegitimate children are ‘only entitled to the property of their parents and not of any other relation’. However, the SC has explained that such children have the right in their parent’s self-acquired, as well as ancestral properties.
Inheritance and property rights of live-in couples and their children
In 2015, the SC ruled 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.
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.
Women’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.
Senior citizens have exclusive right to property; son, daughter-in-law are licensees, says Calcutta HC
The Calcutta High Court, on July, 23, 2021, upheld the right of a senior citizen to reside in his house and said his son and daughter were ‘at best licensees’ living in the property and hence, liable to eviction. The right of the senior citizen to exclusively reside in his own house, the HC said, must be viewed from the prism of Article 21 of the Constitution of India.
Passing its order in a virtual hearing, the HC said: “It is now well settled that the children and their spouses living in the senior citizen’s house are at best ‘licensees’. Such licence comes to an end once the senior citizens are not comfortable with their children and their families.” The order by the Calcutta HC is quite similar to previous orders passed by the Delhi High Court and the Punjab and Haryana High Court.
Inheritance and adverse possession
Those who have inherited a property, which is in possession of someone else, have to be careful about getting the possession of the property. Under the existing laws, someone who has been living in a property for 12 years, without any interruption, acquires a right in the property under the adverse possession laws.
Major changes in the Hindu Succession Act
The Hindu Succession Act was amended in 2005 to add or remove different clauses within the earlier Act. Some of the most significant changes in the Act are as follows:
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 the 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 her brothers or other male members in the family.
Omitting Section 3
Section 3 of the Hindu Succession Act did not grant women the right to seek for partition within a house unless the male members wanted so. This reduced the autonomy and rights of the women and hindered her privacy. As a result, the amendment omitted Section 3 of this Act.
Inheritance for tribal woman
Amend law denying tribal women equal rights to family property: SC to govt
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.
Recall here that 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).
According to Section 2(2) of the Hindu Succession Act, the statute which guarantees equal shares for male and female heirs is not applicable to members of Scheduled Tribe communities
“When a daughter belonging to a non-tribal is entitled to the 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,” the SC said.
Source: housing
