Whether you are a daughter, mother, wife, or daughter-in-law, it is important for you to understand your inheritance rights and also, ensure that your assets are passed on to the rightful heirs. While the law has evolved and many progressive judicial orders have been passed recently to boost Hindu women’s inheritance rights, strong biases still remain against women in Indian societies. Hence, in my opinion, changes in the law should also be accompanied by widespread awareness so that the mindset of the people changes leading to shifting of the inheritance practices on a fundamental level. Here is my small endeavour to do the same.
Starting with the basics
If a person dies without a will, it is known as intestate succession, and the distribution of assets, in this case, is governed as per the personal laws applicable to the deceased basis his/her religion. At present, the following laws govern the succession in India:
Hindu Succession Act, 1956 – The law of intestate succession for Hindus including Buddhists, Jains, Sikhs are codified in Hindu Succession Act, 1956.
Shariat Law – Muslims have different personal laws for Shias and Sunnis and such laws are not codified in any Statute. However, the Muslim Personal Law (Shariat) Application Act, 1937 is commonly applicable for intestate succession in Muslims.
Indian Succession Act, 1925 – The Indian Succession Act, 1925 contains specific provisions which are applicable in the case of intestate succession in Christians, Jews, and Parsis. Also, this Act governs the succession of the property of a person whose marriage is registered under the Special Marriage Act, 1954 unless both of them are Hindus, Buddhists, Jains, and Sikhs.
For the purpose of today’s newsletter, we have examined the inheritance rights of women under the Hindu Succession Act, 1956.
1. Succession Rights of a Daughter
The first big step - Amendment to Hindu Succession Act in 2005
The Hindu Succession Act was amended in 2005 to give equal rights to the daughters in the property of the father by birth itself just like their brothers, provided that both, father and daughter, were alive on September 9, 2005. Prior to the said Amendment, sons enjoyed rights over the deceased father’s property, whereas daughters could do so only till she was unmarried.
To fully understand this amendment, we need to first learn about ancestral property and self-acquired property. Ancestral property is one that is inherited up to four generations of male lineage (great-great-grandfather) without any division, and the right to share in it is accrued by birth, whereas self-acquired property is the one that has been purchased by the person from his own resources or through any property acquired from his share in an ancestral property.
So now, interpretation of this amendment shall include that a father cannot will his ancestral property to anyone he wants to, or deprive a daughter of her share in it. However, for self-acquired property, the Hindu father continues to enjoy unfettered discretion to will it to anyone he wishes.
Further, it is important to understand that a married daughter having an equal share in her father’s property means that she will get the same share as her brother claims in her father’s ancestral property as the inheritance laws confers property rights on other legal heirs of the deceased as well (Class 1 heir, explained below).
The landmark Judgements of 2018 and 2022
On August 11, 2020, the Supreme Court of India passed a landmark judgment in the case of Vineeta Sharma v. Rakesh Sharma, stating that the Hindu Succession (Amendment) Act, 2005 will have a retrospective effect to entitle the daughter, born before or after amendment i.e., September 09, 2005, to inherit her deceased father’s property irrespective of whether the father was alive or not on September 09, 2005.
Recently, in the case of Arunachala Gounder v. Ponnuswamy decided on January 20, 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.
2. Succession Rights of a Wife
A legally accepted wife has a right to inherit from a deceased husband as a class I heir. Class I heirs consist of the immediate family linked by the male. It includes wife, son, daughter and mother. All propositus in this class shall be entitled to one part of the property which will be equally divided among themselves. Class I heirs of a Hindu male currently include the following:
Son, daughter, widow, mother
Son and/or Daughter of a pre-deceased son
Son and/or Daughter of a pre-deceased daughter
Widow of a pre-deceased son
Son and/or Daughter of a predeceased son of a predeceased son
Widow of a pre-deceased son of a predeceased son
Son and/or Daughter of a predeceased daughter of a pre-deceased daughter
Daughter of a predeceased son of a pre-deceased daughter
Daughter of a predeceased daughter of a pre-deceased son
To give an example for the above, it means that if a Hindu male dies without writing a will and is survived by his wife, son and 2 children of his dead daughter. In this case there are 3 units: 1 his wife, 1 his son and 1 the children of his deceased daughter. His wife will get 1/3rd share, his son will get 1/3rd share and remaining 1/3rd share will be divided amongst the 2 children of his deceased daughter. In addition, a wife has a right to her deceased husband's ancestral property.
3. Succession Rights of a Mother
A mother is a Class I legal heir to her deceased son’s property. Therefore, as explained above, if a Hindu male leaves behind his mother, wife and children, all of them have an equal right on his property. It is important to note that if the mother passes away subsequently without creating a will, her share in her deceased son’s property will devolve upon her legal heirs, including her other children. In addition, a widowed mother is entitled to maintenance from her children who are not dependants.
In the case of Arunachala Gounder v. Ponnuswamy decided on January 20, 2022, it was held by the Hon’ble Supreme Court that if a female Hindu dies intestate (without writing a will) and without leaving any child, then her inherited property would go back to the source i.e. 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.
4. Succession Rights of a Daughter-in-Law
A daughter-in-law has no right in the ancestral or self-acquired property of her in-laws. It is only after the death of her husband, i.e. as a widow, she has the right in her husband’s property left behind by him. This property can be either ancestral or self-acquired.
Distribution of Women’s Property
As per the general rules of succession under Section 15 of the Hindu Succession Act, 1956, in case a female dies intestate, her property shall devolve in the following manner:
First, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband.
Second, upon the heirs of the husband.
Third, upon the mother and father.
Fourth, upon the heirs of the father.
And lastly, upon the heirs of the mother.
Further, the Hon'ble Supreme Court reaffirmed the legislative intent of Section 15 (2) (a) (b) of the Hindu Succession Act, 1956 by stating that inherited property of childless woman dying without a will goes back to its source “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”.
6 Important steps to follow for smooth transfer of property in the absence of a will
Step 1 - Get clarity on property ownership and its title
It is important to note that the Hindu Succession Act, 1956 does not differentiate between movable and immovable property. Hence, it is vital to first identify all the assets of the deceased which can include intangible personal property, such as stocks, bonds, royalties, patents, copyrights, etc., and unproductive assets like artwork, jewellery, furniture, car, etc.
Step 3 - Create a Settlement Deed
Legal heirs can mutually decide among themselves on the distribution of assets if things are amicable. Once they finalise the distribution, heirs can draw a family settlement deed that each member signs, which can then be registered for official records.
Step 3 - Apply for a death certificate without delay
Application for a death certificate can be made online by visiting the state portal. It is advisable to obtain the same within 21 days to avoid the penalty. A death certificate is the most important supporting document which is required to be submitted while closing the bank accounts, making insurance claims, selling property, or dealing with any account or asset of the deceased.
Step 4 - Reach out to the Nominee of Bank Account/ Policies or file the Nomination Papers
Please note that a nominee appointed by the deceased to his bank accounts/ policies is a mere custodian assigned on behalf of the legal heir and does not have any legal ownership. So it is important to list down all fixed deposits, post office schemes, EPF accounts, PPF accounts, or any other nomination-based holding. If you are the nominee as well as the rightful legal heir to the same then immediately file the nomination paper to become the owner of this type of movable property. Also, the legal heirs have a claim over the insurances of the deceased like life, vehicle, credit card, etc.
Step 5 - Succession Certificate
A succession certificate is issued by the District Judge of the appropriate jurisdiction to the survivor or legal heirs have to obtain this certificate from the competent court of law. It gives the holder a right to represent the deceased to collect debts and securities like debentures, shares, bank accounts & lockers (movable properties).
Step 6 - Register the new ownership without delay
The legal heir should get the property mutated and transferred in his/her name and get the new ownership registered through the relevant authorities. NOC from other legal heirs, along with an affidavit, is one of the documents that will be required for the transfer of a property. The terms of the NOC depend on the Settlement Deed executed amongst the legal heirs. The children of the issuer of the NOC will not have the right to make a claim over the said property in the future.
Conclusion
It's been 17 years since the inheritance law has been amended to give rights to the daughters same as the sons but the discrimination against women is so perennial that mere change in law won't bring about a transformation in the society. The women have to stand up for themselves not just to ask for rights on the property but also to take equal responsibility of the parents. Whether you are a mother, wife, daughter, or daughter-in-law, you must not hesitate asking questions to know the whereabouts of the property and your rightful entitlement. It is also important that women start writing their wills even if they have no current source of income as they are a beneficiary in case the husband or father dies without a will (Intestate Succession).
In the end, I would like to say that while the law exists to grant equal rights to women on every front, nothing will change until we stand up for ourselves…not just in the court of law but in every discussion whether with friends, family or colleagues where women are not treated at par.
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