The laws pertaining to property rights of a son and daughter and the division of property in India among Hindus are dealt with under the Hindu Succession Act, 1956, and the 20005 amendment. Before the passing of this Act, the property rights of sons and daughters’ relating to inheritance were different. Previously the sons had absolute rights of inheritance over the father’s property, whereas the daughters had minimal rights over the father’s estate. Once the daughters were married, they ceased to have any rights over the father’s estate, and the property was passed on to sons, son’s son, and so on. A daughter was supposed to claim property rights in the husband’s property after marriage in India.
However, by virtue of the amendment act of 2005, now the daughters, whether married or unmarried, are at par with the sons and have equal rights, liabilities, and shares as a son. Also, a coparcener’s daughter shall by birth become a coparcener in her own right as a son. After the amendment, a daughter, in her father’s property was given absolute rights of inheritance. All daughters whose birth is on, before, or after the 2005 amendment have the same rights as a son in the father’s ancestral or self-acquired property.
Types of Succession
- Testamentary Succession: – The process of distribution of property based on a Will.
- Intestate Succession: – In the circumstance when a person dies, without making a Will, his property will be distributed by operation of law.
Division of Property When Father Dies Intestate
Hindu Succession Act 1956 (section -8) – When a Hindu male dies intestate (without leaving a Will), his property’s division upon his heirs is done by the rules specified under the Hindu Succession Act.
- Firstly, upon class- I legal heirs.
- Secondly, if there is no class I legal heirs, then upon class II legal heirs.
- If there is no heir of these two classes, then upon the Agnates of the deceased.
- Lastly, if the absence of an agnate, then upon the Cognates of the deceased.
Agnate: – A male or female descendant by male links from a common ancestor or relatives through male lineage are called agnates.
Cognate: – If two people are related by blood or adoption, one is said to be a cognate of another.
Recommended reading: Land and property title search in India
Division of Property When Mother Dies Intestate
According to the Hindu Succession Act (section 15), when a Hindu female dies Intestate, the property rights devolves as follows:
- Firstly, upon sons, daughters, and the husband.
- Secondly, upon heirs of husband.
- Thirdly, upon the mother and father.
- Fourthly, upon heirs of a father.
- Lastly, upon heirs of the mother.
Description of Family Property
The property is broadly divided into the ancestral and self-acquired property, under the Hindu law. Ancestral property is defined as one inherited up to four generations of male lineage and should have stayed undivided throughout this period. A self-acquired property, on the other hand, refers to a property that has been bought by the father with his own money. The rights acquired in relation to both of these kinds of properties is different and has been discussed below in detail:
Under the Hindu Succession Act, a son, and a daughter have rights in the ancestral property by birth. A father cannot dispose of such property by excluding its rightful legal heirs. According to his discretion, a father cannot transfer/ sell /sell or gift such property to any third person. In other words, he cannot deprive a daughter or a son of their share in the ancestral property. If a father has transferred such property in the name of a third person, the children reserve the right to object.
Self Acquired Property
In the case of the father or mother’s self-acquired property, their son or daughter have no birth right over it. Unlike the ancestral property, a father or a mother, by their discretion, have the right to gift the property or bequeath it by way of Will to anyone as per their wish. This further specifies that as per the property rights of sons and daughters, they will not have a right to raise any objection. If the property owner dies intestate, in that scenario, the son and the daughter both become the owners of the same by way of natural Succession.