There is no bigger pain than losing a loved one, especially a family member, however, the same can get miserably painful in case there is a family dispute with respect to the inheritance of property.
Let’s understand the law related to Inheritance Rights in India.
The term ‘Inheritance’ is the practice of transferring property, titles, debts, rights, and obligations to the legal heir of a person upon the death of that person either by way of will or through the prevalent laws of succession.
A person can succeed to or inherit one’s property in two ways:
The person who makes the will is known as the testator and the person in whose favor the will is made is called the legatee.
In case a person dies without making a will then his property is devolved among his heirs through the laws of intestate succession.
The legal position of the concept of heir is quite clear. 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.
The following can be legal heir under the Hindu Succession (Amendment) Act, 2005:
Agnates: These are the blood relations to the deceased through males. For example bother’s son, brother’s daughter, son’s son, etc.
Cognates: These are the blood relations to the deceased through females. For example sister’s son, sister’s daughter, daughter’s son, etc.
In the case where a Hindu male passes away the following shall take place
In case a Hindu Female passes away the property shall be divided amongst
Under the Muslim Personal Law (Shariat) Application Act, 1937 the following can be legal heir:
Under the Hindu law, a property would either be a self-acquired property or an ancestral property. The difference between the two types of property is quite self explanatory.
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 pretty 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.
The various types of Property that can be inherited are:
This can be defined as the property which was inherited by the deceased through 3 generations or more.
This shall include the property which the deceased had purchased or acquired in his/ her lifetime.
One of the major concerns that have arisen out of these personal laws is that there are unequal rights given to women. This stems off from the understanding that most of these personal laws are archaic in nature and need to be amended to a certain extent.
The most notable amendment was to the Hindu Succession Act in 2005 which gave daughters equal rights as sons in terms of them being a coparcener and in terms of succession. Until 2005, the property rights of son and daughter were different. Only an unmarried daughter had a right in the ancestral property. But post-2005, a daughter has similar rights and duties that a son has.
She has an equal right/share in the ancestral property. In the case of the father’s self-acquired or separate property, if the father dies without leaving behind a will, the daughter being a Class I heir will have equal rights with her mother, grandmother, and sister or brother.
A detailed analysis of women’s rights has been done above in this blog.
That being said, there are still certain instances where women are not provided the same rights as men. Under Muslim Law, women do not have the same rights as men and tend to have a lesser share on the property than their husbands.
In terms of Christian inheritance, we, however, see that there is no such gender bias and women have the same rights as men do.
A son has a right by birth in his father’s and grandfather’s property. In his grandfather’s ancestral property, he has equal rights with his father and other family members. In the case of his father’s self-acquired or separate property, if the father dies without leaving behind a will, then the son is a Class I heir and will have equal rights with his mother, grandmother, and sister or brother.
An illegitimate son is not entitled to get a share in his father’s property. A posthumous child, who is in the womb of the mother at the time of death of the father, is entitled to a share in his father’s property. The only condition involved is that he should be alive at his birth.
A grandchild, both grandson, and granddaughter have an equal share with their father in their grandfather’s ancestral property. In the case of grandfather’s self-acquired or separate property, a grandson will have inheritance right only when his father predeceased his grandfather.
The inheritance rights of an adopted child are similar to that of a natural-born. Upon adoption, a child loses his rights in the biological family but if a property vest in him before the adoption, then the property will continue to be in his name.
A wife has no right in the ancestral property. Therefore, a widow has no right over the husband’s ancestral property. She is a Class I heir, and will have a right in the self-acquired property of her husband. A widowed mother also has a right in her son’s property.
A will or testament is a legal document/ declaration expressing the will of the person, containing the names of one or more persons who are to manage his estate or acquire his estate after his death. A probate is a copy of the Will, that is certified under the seal of a competent Court with a grant of administration of the estate to the executor/ legatee of the testator.
It acts as official evidence of an executor’s authority. After the death of the person who made the Will, a proceeding may be initiated in court to determine the validity of the will that the testator may have created. The proceedings are known as probate proceedings.
Generally, during the proceedings, the witnesses are called upon to testify upon the validity of the Will. The person making the Will should be a competent individual, that is, he must not be a minor and should be a person with a sound mind. The probate court only decides upon the validity of the Will and does not deal with the case on merits.