Basic Property Rights of Individuals
With acquisition of Property though nowadays it is a status symbol and the society judge a Human Being with the market value of a properties which an individual possesses, certain legal problems also arise during, on or after acquisition of property.
Today India is obsessed and confused with Inheritance and Rights of a married woman on her father’s property. Laws regarding this issue has changed frequently with regular amendments and orders by our Apex Court.
The above topic is just an example of complexity of Indian Laws in regards to property and its inheritance. There are certain various other topics which a person has to face when dealing with inheritance and acquisition of property as discussed below.
Rights of a married woman on her father’s property.
Article 14 of the Indian Constitution mandates equality among all citizens, But the Hindus, Muslims & Christians are governed by their own personal laws which includes property rights as well. The Muslim community doesn’t have any codified law & are governed by Hanafi & Shia School.
Till the Amendment took place in the Hindu Succession Act,1956 in 2005. The views of the society regarding married women was different. Before the amendment of the Act. It was viewed that an unmarried woman can enjoy her father’s property till she is unmarried. Once, married she was considered as part and parcel of her Husband’s family and her brother or the brothers of her paternal family used to inherit the property excluding her.
But, with the amendment of Hindu Sucession Act,1956 in the year 2005 Earlier, once a daughter was married, she ceased to be part of her father’s HUF. Many saw this as curtailing women’s property rights. But on September 9, 2005, the Hindu Succession Act, 1956, which governs the devolution of property among Hindus, was amended. According to Hindu Succession Amendment Act, 2005, every daughter, whether married or unmarried, is considered a member of her father’s HUF and can even be appointed as ‘karta’ (who manages) of his HUF property. The amendment now grants daughters the same rights, duties, liabilities and disabilities that were earlier limited to sons.
February 2, 2018, Supreme Court has made it a general rule that a daughter, living or dead, on the date of amendment will be entitled to share in father’s property, thus making her children too to claim this right.
Rights of Foster Child on his/her Biological Parents Property.
According to Hindu Adoptions and Maintenance Act, 1956, after adoption, the adopted son/daughter lose all the rights of a son/daughter in their biological family, including the right to claim any share in the estate of the biological father or relations, or any stake in the coparcenary property. The only exception where an adopted child is not entitled to the full rights of a biological child in the adoptive family were if he/she was adopted by a disqualified heir.
The property rights of an adopted son/daughter are limited only to inherit the property of his/her adoptive parents. But, at the same time, if the natural parents want to give their property to their natural child, they may do it by way of gift or will.
Thus, it can be inferred that for all intents and purposes, the adopted child is treated like a biological child into the family into which he/she has been adopted and is considered the descendant of the family.
To whom Indian Succession Act,1925 Applicable.
Laws relating to testamentary succession as per the Indian Succession Act, 1925 is applicable for Hindus.
Laws relating to both testamentary succession and intestate succession is as per the Indian Succession Act, 1925 for Christians.
Hindus have been given a wider meaning under the Indian Succession Act to include Jains. Hence, laws relating to testamentary succession as per the Indian Succession Act, 1925 is applicable for Jains also. For Intestate Succession Hindu Succession Act,1956 is applied.
Sikhs have been given a wider meaning under the Indian Succession Act to include Sikhs also. Hence, laws relating to testamentary succession as per the Indian Succession Act, 1925 is applicable for Sikhs. For Intestate Succession Hindu Succession Act,1956 is applied.
Buddhists have been given a wider meaning under the Indian Succession Act to include Buddhists also. Hence, laws relating to testamentary succession as per the Indian Succession Act, 1925 is applicable for Buddhists also. For Intestate Succession Hindu Succession Act,1956 is applied.
Inheritance of Ancestral Property.
Ancestral Property is the property acquired by our great grandfather which has been passed down from Generation after Generation. Without being Divided or Partitioned.
The Property in order to be termed as Ancestral it must be four Generations old and has not been divided for three Generations.
Inheritance of Ancestral Property takes place by birth. A father can exclude his son or daughter from his self-acquired property but cannot exclude his son or daughter from inheriting ancestral property.
The share of each generation is first determined and the successive generations in turn has to sub-divide what has been inherited by their respective predecessor.
Inheritance of Property by illegitimate Children.
An illegitimate child is not entitled to succeed to his father. But under the Hindu Succession Act, illegitimate children are deemed to be related by illegitimate kinship to their mother and to one another, and their legitimate descendants are deemed to be related by legitimate kinship to them and one another, and can therefore inherit from each other under the said Act. An illegitimate child can inherit the property of his or her mother or of his or her illegitimate brother or sister (uterine blood). A mother also can inherit the property of her illegitimate child. The father has no right to inherit the property of his illegitimate child.
Inheritance of Property by a child in womb.
Section 5 of the Transfer of Property Act says that a property can only to be transferred to a living person, Sections 13, 14 and 18 of the Act deal with the law to transfer property for the benefit of the unborn child. It says to transfer property to an unborn child, a prior “interest” has to be created. This means a trustee has to be appointed for the benefit of the yet-to-be-born child. This “interest” must contain the whole of the remaining interest in the property of the person who desires to transfer the property. Otherwise, the transfer will not take effect.
According to Section 20, of Hindu Sucession Act,1956 an unborn child who has come into existence will inherit only if—
(i) The child was conceived at the time of death of the property owner, and
(ii) The child is born alive
The child will inherit in the same manner as if he were born before the death of the property owner if the above conditions are met. Any child, male or female, who is in mother’s womb at the time of the death of the property owner is considered to come into existence in the eyes of law.
Right of Unborn Child Under Muslim Law
There are no rights to the unborn child under the Muslim Personal Law and a gift to an unborn person is void except in case of Wakf.
Disqualification in Inheriting Property.
The Hindu Succession Act 1956 lists certain conditions under which a person is disqualified to inherit a property or may not be the first preference, as the case may be.
If all aspects of the relation to the person from whom one is expecting to inherit property remain same, then the one who is of a biological descent shall be taken into preference. Half-blood is referred to those who share a common parent and either the father or the mother might have remarried. In such a case, the father’s biological child (born of the previous wife) has the first right over the property as against. In short, full blood is preferred to half-blood relations.
In case of simultaneous deaths
This is based on a presumption. If two people have died and if it becomes uncertain as to which of them survived the other, then for reasons of succession, it is presumed that the younger survived the elder unless proved contrary.
Daughters come later
In case the Karta of a Hindu Undivided Family (HUF) dies without leaving a will, survived by both sons and daughters and if his property includes a dwelling house which may or may not be wholly occupied by either of these heirs, the daughter’s right to the property will arise only after the sons choose to segregate their shares. However, no one can deny her the right to live in the house till then if she is unmarried, separated, deserted or a widow. Married women do not enjoy this provision.
If the widow of a predeceased son or a widow of a brother is remarried by the time a succession case opens, she shall not be considered to inherit property.
Even if one is a legal heir and is to inherit property, if he/she is found guilty of a murder or in abetting a murder, such a person would be disqualified from inheriting a property.
Heirs of converts
Converts cannot be disqualified from ancestral or father’s acquired property. However, heirs of a convert is disqualified from inheriting any property from his/her Hindu relatives unless they are Hindus at the time when the succession opens.
Division or Inheritance of Property when Property owner died Intestate.
The property of a Hindu male dying intestate is distributed among his heirs in accordance with section 8and 9 of The Hindu Succession Act, 1956. As per these the property of a Hindu dying intestate devolves upon his heirs of Class I who take the property to the exclusion of all other heirs. But what if there are more than one Class I heirs among whom the property of the deceased devolves? What rules are to be followed in such devolution. Section 10 of the Act lays down the rules to be followed in such cases. Section 10 provides as under:
Distribution of property among heirs in class I of the Schedule: The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following Procedure: –
- The Intestate’s widow, or if there are more widows than one, all widows together, shall take one share.
- The Surviving sons and daughters and the mother of the intestate shall each take one share.
- The heirs in the branch of each pre-deceased son or each predeceased daughter of the intestate shall take between them one share.
- The Distribution of share referred in 3-
- Among the heirs in the branch of the pre-decease son shall be so made that his widow or widows together, and the surviving sons and daughters get equal portions; and the branch of his pre-deceased sons get same portion;
- Among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.