Know About Property Rights of Daughters in India
Property

Know About Property Rights of Daughters in India

Unfortunately, in some parts of India, girls did not always enjoy the same legal protections as their fathers when it came to inheritance. When compared to men, women have never been given equal treatment when it comes to inheritance rights or the ability to hold Property in their own right. Both women and men faced significant limitations on their ability to inherit and own property. The entire corpus of the Law of Inheritance has been modernised by new laws and amendments. The property is now owned equally by the daughters.

Property Rights of Daughter

Today, your gender as a woman is of little consequence for your property rights. Hence, the property share of daughters in India are almost entirely the same as the property rights of sons.  

A daughter can acquire, hold, and dispose of, Property at par with any other man. Today, there are practically no restrictions on a woman's capacity to acquire, hold, and dispose of, her Property. Daughters have an equal share in their father's self-acquired Property as well as ancestral property. Daughters after the Supreme Court judgment of 2005 have become coparceners. Hence, they have equal rights in all Property, including agricultural lands. Both men and women are equally capable of holding their own, separate Property. Any restrictions on property rights are the same for all genders. Hence, daughters today have virtually equal rights in Property as a son does.

Equal Property Share for Daughters in India

Your gender as a woman does not place you at any significant disadvantage in the arena of inheritance rights. 

As a daughter, you have the same inheritance rights as a son of your generation. Thus, a daughter has the same inheritance rights as a son; a granddaughter has essentially the same inheritance rights as a grandson, and so on. In most cases, the daughter is entitled to inherit the same share of her ancestors' Property as a son of the same generation is. Marriage does not affect a daughter's inheritance rights. A married daughter has the same right to Property as an unmarried daughter. 

In India, the Law of Inheritance varies based on religion. The religion of the deceased governs, which Law of Inheritance will apply. Thus, Hindu Inheritance Law applies to the death of a Hindu, Christian Inheritance Law applies to the death of a Christian, Muslim Inheritance Law applies to a Muslim's death, etc.

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Hindu Property Law for Daughters

Both sons, and daughters, are equally capable of acquiring, holding, and disposing of their own property. There is almost complete equality between sons and daughters in this regard. 

Over the past century, the Hindu Law of Succession has seen a significant development in the realm of inheritance. Indian property law for married daughter gave equal property rights compared to married sons. Through subsequent legislation and revisions, discrimination against daughters has been eliminated. After the enactment of the Hindu Succession (Amendment) Act of 2005, sons and daughters have nearly identical property rights. 

 

Equal Rights of Daughters in Joint Family Property

In Hindu Law, for the purpose of inheritance, Property is classified into two types: (1) Joint Family Property and (2) Self-Acquired Property. Essentially, all Property inherited by a son from their father, paternal grandfather, and paternal great-grandfather is considered Joint Family Property. All other Property is considered Self-Acquired Property. Depending on where you reside in India, the character of these types of properties is either the same or different. In regions where this distinction is followed: 

  1. Joint Family Property is inherited differently (compared to Self-Acquired Property). 

  2. Multiple persons have rights over the Joint Family Property by birth. This is unlike Self-Acquired Property, over which rights can be acquired only if you have acquired them yourself. 

The rights of both sons, and daughters, to inherit, acquire, hold, and dispose of the Self-Acquired Property of their ancestors is essentially the same everywhere.  

In regions where this distinction is maintained, daughters have not had the same rights as sons in Joint Family Property for a considerable period of time. In terms of both their rights to control the property and their rights to inherit it, daughters lagged behind sons. Over the past century, law after legislation has gradually diminished this inequity. With the passage of the Hindu Succession (Amendment) Act of 2005, sons and daughters now have equal rights to inherit their forefathers' Joint Family Property.

Those who read this Article also Consulted a Lawyer about Inheritance rights of Daughter. 

In 2020, the Supreme Court decision on property rights of daughters, Vineeta Sharma vs. Rakesh Sharma, confirmed that sons, and daughters, indeed have exactly the same rights in the Joint Family Property. The inheritance rights of the daughter do not change on her marriage, the death of her husband, the death of her father, or anything else for that matter. Hence, the case used what has now become a famous expression: "once a daughter, always a daughter." Thus, an unmarried daughter and a married daughter are all entitled to the same property rights in the Joint Family Property of their parents. A daughter-in-law is too entitled to inherit her father-in-law's Property. This rule holds true for a widowed daughter-in-law as well. As long as the daughter is alive, she is entitled to control and inherit her ancestors' Joint Family Property at par with a son.

What Does the Succession Law Say?
Wills / Trusts

What Does the Succession Law Say?

We have been through a tough time of Covid Lockdown recetnly and now in a new year of 2023, perception prevails that life is uncetain and planning sucession of property should be a critical aspect of our overall planning.  We will end up with a number of different properties during the course of our life. When combined together, all of these different pieces of property make up our estate. When we pass away, the people who will inherit our estate must found appropriately planned succession documents. If not, it will be left in what is known as a "ownerless" estate.

As a consequence of this, when we pass away, the people who come after us will become the legal proprietors of our estate. Inheritance or succession are common names that people use to refer to this process. When we are no longer here, those who will inherit our property and possessions are known as our successors. The entire process is governed by a body of law known as succession law, which you may read more about here. The idea of inheritance is not synonymous with the concept of succession. Inheritance refers to the process by which a person receives the property that was previously owned by his or her ancestors. The inheritance is distributed in accordance with a predetermined order, which is established by the succession. In order to conform with the criteria of Indian Succession Law, one will typically need to obtain a succession certificate. It is necessary for the individual who obtains the Succession Certificate to offer credible evidence that they are the rightful heir to the estate in order to satisfy the requirements of the certificate.

 

Types of Succession

Succession is of two types: 

  1. Testamentary Succession. 

  2. Intestate Succession. 

After your death, the succession of your estate will be either testamentary or intestate. It cannot be both at the same time. If you have left behind a Will, the succession of your estate will be testamentary. Otherwise (that is, if you have not left behind a Will), your estate's succession will be intestate. 

 

Testamentary Succession

Testamentary succession is nothing more than executing a will. A will would then govern how your property is distributed among your legal heirs. A will includes the following information: 

a) Who gets your estate 

b) How is your estate distributed among the various heirs? 

Persons named in your will are your legatees. You can choose anyone to be your legatee. It is not required that a legatee is your relative. Wills are recognized under the Indian Succession laws.

The Indian Succession Act, 1925 governs the making and enforcing of Wills. It is the law which governs testamentary succession in India. Indian Succession Act, 1925 applies to everyone, except Muslims. Muslims are governed by their own personal laws. A Will gives you freedom to distribute your property according to your wishes.  However, if you are a Muslim, you cannot bequeath by a Will any more than 1/3 of your estate unless your legal heirs' consent to exceed this cap. There is no such limitation for anyone else.

You can execute your Will in accordance with the Indian Succession Act, 1925, if you are not a Muslim. If you are a Muslim, you have to execute your Will according to the Muslim personal laws. Capture the will in writing and sign it. You can also affix your thumb impression on the Will. Two witnesses need to attest the Will. These witnesses should have seen you sign the Will. A Will can be executed on plain paper. A Will need not be executed on a stamp paper. It is also not necessary to be registered.

Muslims can execute their Wills through a far easier procedure. Your Will need not be signed or written. It can even be oral. There is no need for attesting witnesses. You need to make your intent clear through your Will. However, oral wills are difficult to prove. Hence, It is preferable to capture your will in writing. 

After one passes away, a person should be made responsible to execute the will. Typically, lawyers are given this responsibility.  When another person implements the instructions given in the Will of a deceased, it is called executing the Will. The person who executes the Will is called an executor. Executors take care that the estate is distributed in accordance with the Will. There can be multiple executors. You can choose one person or more than one person to act as executors of your Will.  Remember to take their consent. Choosing an executor should be a careful process. If you don't appoint an executor, or the executors refuse to act as executors after your death, the competent court can appoint some of your legal heirs as the executor[s].

 

Intestate Succession

If you die without leaving a Will, your property would pass on through Intestate succession. Laws governing intestate succession in India are not uniform. You are governed by the personal law of your religion. 

Various religions in India are governed by a variety of varying laws of intestate succession. For example, the Hindu Succession Act of 1956 is the law that regulates the intestate succession of Hindus. The Indian Succession Act of 1925 is the piece of legislation that regulates the intestate succession of Christians. Hence, the Hindu Succession Act, which was passed in 1956, will apply to you if you are a Hindu; if you are Christian, the Indian Succession Act, which was passed in 1925, will apply to you; and so on. Although the rules that govern many religions are not always the same, the fundamental requirements of every law are the same. There are going to be some new people who own your estate when you pass away. These individuals are considered to be your lawful heirs.

Each legal heir will inherit a specific share of your estate. The applicable Law of Intestate Succession will hence specify both your legal heirs and the shares of your estate each legal heir is entitled to inherit.

Take, for example, the situation of a married Hindu male. If you are a married man in the Hindu religion, your wife, any sons or daughters you may have, as well as your mother, are your legal heirs. They will each take an equal portion of the estate you leave behind. In the event that you pass away and leave behind a son, a daughter, and a wife, each of them will be entitled to an equal portion of the inheritance. If your daughter has already passed away but is survived by her own daughter, then your grand-daughter will also have a right to the property because of her mother, who was also a previous owner.

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Hindu Law of Succession

The Hindu Law of Succession is contained in the following three sources: 

  1. The Indian Succession Act, 1925, which governs the testamentary succession of the estate of a Hindu. 

  2. The Hindu Succession Act, 1956, which governs the intestate succession of the estate of a Hindu. 

  3. The succession of Hindu Joint Family Property, in almost the whole of India except some eastern regions, continues to be governed by ancient religious rules. This is quite a small portion of the Hindu Law of Succession. 

Succession in Hindu Law makes a distinction between two types of Property: (1) Joint Family Property and (2) Self-Acquired Property. In almost all parts of India except portions of the eastern region, the rules of succession governing Joint Family Property, and Self-Acquired Property, are different.  

The Hindu Succession Amendment Act of 2005 has now started giving daughters also succession rights. 

Those who read this Article also Consulted a Lawyer about Succession and Wills. 

The Indian Succession Act, 1925

The Indian Succession Act 1925, is one of the oldest Indian statutes governing succession. It governs intestate succession for Christians, Parsis, and some other religions. 

However, the Indian Succession Act is special for two other reasons. 

  1. It is the uniform law that governs testamentary succession for all religions except Islam. Hence, unless you are a Muslim, the entire process of preparing and executing a will, beginning from you authoring it to your wishes in it being carried out, will be governed by the Indian Succession Act, 1925. 

  2. Even in cases of intestate succession controlled by other religious laws, the Indian Succession Act has a role to play in some respects. For instance, the Act contains the procedure for appointing administrators for your estate. Administrators are responsible for distributing your estate to your legal heirs. Another important function is, succession certificates are issued under the Indian Succession Act. A Succession Certificate issued to a particular person will establish that they are entitled to succeed as a part of your estate.

Conclusion:
 

In conclusion, succession laws play a significant role in ensuring that a deceased person's property is distributed to their heirs in a manner that is both equitable and compliant with the law. Even though the rules may change from country to country or state to state, it is critical to have an understanding of how they operate in order to avoid disagreements and misunderstandings over the distribution of assets. If you want to make sure that your assets go to the people you want them to when you pass away, it's necessary to seek the guidance of an attorney and have a will that's been drawn up carefully. If you are familiar with the laws governing succession, you will be able to make well-informed choices and plan effectively for the future, which will provide you and your loved ones more peace of mind. 

Intestate Succession or Succession without a WILL: Things you should know
Wills / Trusts

Intestate Succession or Succession without a WILL: Things you should know

Intestate succession means a succession without a Will. A will generally dictates how a person plans to transfer his assets or properties after his death to his/her heirs. A person dies intestate when he has not bequeathed his properties according to a will. Succession can either be testate or intestate. 

Meaning of Testate Succession

In some cases, a person leaves behind a Will, which specifies property distribution after their death. In such cases, the Will controls succession.

When succession takes place in this manner, it is known as testamentary succession

Meaning of Intestate Succession

In other situations, a person dies without a will. In these situations, intestate succession law is used to decide who gets what. So, the people who have the right to the dead person's property are the dead person's legal heirs. In India, the law that applies to a person's estate after they die depends on their religion. Hindus, Muslims, Christians, Parsis, and others have different rules about how to pass on property. When a person dies without a will, this is called "intestate succession."

Those who read this Article also Consulted a Lawyer about Will. 

 

Intestate Succession under Hindu Law

If the deceased is a Hindu, Hindu Succession law will govern the succession. The Hindu Law of Intestate Succession is in the Hindu Succession Act, 1956. 

Two Types of Property

Under Hindu Law, the property is of two types: 

  1. Joint Family Property: The Hindu Joint Family is an ancient social structure prevailing in Indian society. In Hindu Law, specific properties are considered Joint Family Property. Generally, all property inherited from one's father, paternal grandfather, and paternal great-grandfather are considered Joint Family Property. 

  2. Self-Acquired Property: All other properties are considered the Self-Acquired Property of the respective person. The most unambiguous indication of Self-Acquired Property is that it is acquired with the money of one's efforts.

This distinction is important because, depending on where you reside, different rules govern the succession of Joint Family Property and Self-Acquired Property. 

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The succession of Joint Family Property

Depending on where you live, either Dayabhaga Law or Mitakshara Law will govern you. Mitakshara Law rules most Hindus who live in West Bengal, Orissa, and parts of Assam. Mitakshara Law also rules all other Hindus. Both of these terms refer to old schools of Hindu religious law that were the norm in their respective areas. Once upon a time, the majority of Hindu succession was decided by these schools of law. There isn't much point to them now. In terms of the law, the only thing that matters right now is figuring out the order of intestate succession. 

Section 6 of the Hindu Succession Act governs the Mitakshara Joint Family Property's succession. When a coparcener dies, their share in the Joint Family Property passes to the legal heirs according to the rules contained in this Section. The process is as follows: 

  1. You divide the whole joint family property amongst the deceased and their legal heirs. Usually, the deceased, their wife, their children (both sons and daughters), and their parents get equal shares.

  2. The share the deceased person receives becomes his self-acquired property. This share passes to the deceased's legal heirs according to the rules governing Self-Acquired Property's succession (see below).

The succession of Self-Acquired Property

The rules governing the succession of Self-Acquired Property of the deceased varies based on the gender of the deceased. However, the same rules apply to all Hindus regardless of whether Dayabhaga Law or Mitakshara Law governs them. 

There are four types of legal heirs for men who are Hindu: Class I heirs, Class II heirs, agnates, and cognates. The Hindu Succession Act of 1956 has a list of who is in Class I and who is in Class II. An agnate is a descendant of the deceased through a pure male line who is neither a Class I nor a Class II heir. A cognate is someone who is neither a Class I nor a Class II heir, but is a descendant of the deceased through a line of both males and females. The order of who gets self-acquired property when there is no will is as follows:

  1. Class I Heirs: If any Class I heir[s] exist, they get the deceased's whole Self-Acquired Property. If more than one such heir exists, they both get equal shares. The deceased's wife, sons, daughters, and mother are notable Class I heirs. However, the father of the deceased is not a Class I heir. 

  2. Class II Heirs: If not a single Class I heir exists, the whole Self-Acquired Property of the deceased goes to the Class II heirs. The deceased's father, brothers, and sisters are notable Class II heirs. If the father is alive, he takes the whole property. If he isn't alive, then the brothers and sisters take the property in equal shares. 

  3. Agnates: If there are no Class I and Class II heirs, the deceased's agnates take the whole of the Self-Acquired Property. 

  4. Cognates: If there are no Class I and Class II heirs, the deceased's cognates take the whole of the Self-Acquired Property. 

Female Hindus are subject to a different set of restrictions. In the case of female Hindus, the sequence of legal heirs is as follows: I sons, daughters, and husband; (ii) heirs of the husband; (iii) parents; (iv) heirs of the father; and (vi) heirs of the mother. In that order of preference, each category is favoured over the others. The property is divided equally among all heirs of the same class. 

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Position of Illegitimate Children

In the event of the death of both parents, an illegitimate child's right to inherit would pass solely to his mother. A child's mother, but not his father, is entitled to inherit on his behalf in the event of his mother's death.

Those who read this Article also Consulted a Lawyer about Property inhritance rights.