The Property Rights In India: Rule Book, Laws, Inheritance

Are you looking to know about the different property rights in India? There are several laws about inheritance. You must be aware of what each of the children will be getting from their parents. Here, we will talk about the details of inheritance, the natural heir, the property succession details, the right to property, ancestral property rights, and more.

It is vital to be aware of such details. The knowledge is sure to turn out to be handy in several ways. India has a wide variety of different rules about property rights. Knowing about these will give you the right information regarding when to file claims for your property.

What Do You Mean By Ancestral Property?

You must have heard of the term ancestral property. As per the Hindu Succession Act, 1956, there is no specific rule regarding what an ancestral property is. It is, however, basically the property that has been passed in a family for several generations. You will find properties that belong to your great-great-great grandfather. It could be land, massive jewellery, or even a shop. These constitute ancestral property and often there are a lot of people who have a share in it.

It is important to know what the rule books say to get a picture of who is the legal heir of the ancestral property and the ones who have the right to it.

Self-Acquired Property

Just as the name implies, a self-acquired property is one which the owner acquires using his resources. He hasn’t got the property from the generations above or any of his family members. The self-acquired property completely belongs to the one who made it on his own. Of course, his heir would have a right to the property.

This infers that even a self-acquired property will become an ancestral property after one point. When the self-acquired property will be divided among the heir of the owner and it will keep passing down the generations, it will then be treated as ancestral property.

Similarly, when an ancestral property is divided among the family member and they have got the rights to it, it becomes a self-acquired property for that family member.

So, we can see that these properties tend to change form over a course of time. However, the inherent meaning for both is vastly different.

What Do You Mean By An Heir?

Heir refers to the person who is legally entitled to inherit property from their ancestor. A property can have several heirs while others may have only one heir. An ancestral property should ideally be distributed among the legal heirs of the owner. This will follow several laws that are in place. One should have a basic understanding of these rules as well as the inheritance principles.

The Legal Heirs Of The Property

inheritance — Source: Vitalii Vodolazskyi / Shutterstock

A legal heir is legally entitled to inherit the ancestral property should the owner die without a will. In such cases, all property matters are taken up by their legal heirs. The court may have to be visited in case of any dispute.

A very important point that we need to add is that the concept of heir is going to vary from one religion to the other. So, when there is any dispute with regard to property rights, one has to take into account the religion from which they come. The suitable rule will then be kicked into action.

The Hindu Succession Act will apply to people from the following religion

Hindus
Jain
Sikh
Buddhists
Anyone who diverted to these religion post marriage

Both Muslims and Christians have their personal laws to determine who will be the legal heir of the people who have access to the property.

Here, we are going to focus mainly on the Hindu Succession Law and the property rights of people in that religion.

When Is The Hindu Succession Act Applicable?

The Hindu Succession Act will kick into action whenever someone (Hindu caste) dies without leaving a will in place. In such cases, if the property of the deceased needs to be distributed, it is the Hindu Succession Act that will be implemented.

As per this law, the heirs can be categorized as class I heirs and Class II heirs. It is then followed by agnates and cognates. Let us see why they are.

Class I Heir

Son
Daughter
Widow
Mother
Son of a predeceased son
Daughter of a predeceased son
Widow of a predeceased son
Son of a predeceased daughter
Daughter of a predeceased daughter
Son of a predeceased son of predeceased son
Daughter of a predeceased son of predeceased son
Widow of a predeceased son of predeceased son

If no one from the class I heir is present to claim the property, the property will then be distributed among the class II heir. Please remember that this list is as per hierarchical order and hence this order has to be maintained while distributing the property. Those higher in the list will get the first preference as compared to those present at the bottom of the list.

Class II Hierarchy

Father
Son’s daughter’s son
Son’s daughter’s daughter
Brother
Sister
Daughter’s son’s son
Daughter’s son’s daughter
Daughter’s daughter’s son
Daughter’s daughter’s daughter
Brother’s son
Sister’s son
Brother’s daughter
Sister’s daughter
Father’s father
Father’s mother
Father’s widow
Brother’s widow
Father’s brother
Father’s sister
Mother’s father
Mother’s mother
Mother’s brother
Mother’s sister

Post the class II hierarchy comes the name of the agnates. The agnates are the relation through the males but they are neither by blood nor by adoption.

Agnates

Father’s brother’s son or even father’s brother’s widow

There are certain rules to be followed when the property is distributed among the agnates. Here they are

Of the two heirs, preference will be given to the one who is nearer in line
If there is no degree of ascent or both the heir present have the same degree of ascent, the heir who is closer to the common ancestor will end up getting the preference
If neither heir falls under the above two rules and there is more than one heir, they take simultaneous turns.

Cognates

Cognates are just like agnates but rather than having the relation through males, they end up having the relation through females. If no one is found from the agnates, the last in the hierarchy comes the cognates.

Father’s sister’s son or brother’s daughter’s son

Just like the agnates, there are rules to be followed as far as cognates are concerned. Let us look at the rules.

Of the two heirs, preference will be given to the one who is nearer in line
If there is no degree of ascent or both the heir present have the same degree of ascent, the heir who is closer to the common ancestor will end up getting the preference
If neither heir falls under the above two rules and there is more than one heir, they take simultaneous turns.

So, this is the complete hierarchy set up as per the Hindu Law of Succession. As it is evident, it is the class I hierarchy that will be first in line to get the property. In case, no one from Class I is present, it will then be given to relatives as per the class II hierarchy. Now, suppose that there are no relatives from this class either, the agnates of the deceased will have a right to the property. In rare cases when no one of the agnates is present, the property will then go to the cognates of the deceased.

Inference Of Change Of Religion

If you choose to convert your religion, the Hindu Succession Act says that you will still have the right to inherit property.

As per the Caste Disabilities Removal Act, anyone who chose to renounce his/her religion will still hold the right to inherit property. Just because someone wanted to change his/her faith doesn’t make him eligible to be disowned from property matters.

But, the heirs of the convert will not be able to enjoy the same rights. Suppose, the son decided to change from Hinduism to Christianity, he will still have the right to his father’s property. But the son’s son will not have the right to ancestral property.

Daughter’s Right To Father’s Property Post Marriage

This is one of the widely searched and much-discussed topics. You need to know what the law state regarding the right that daughters have to their father’s property once they have been married.

There was a time when daughters had no right over the property of the father however, there was a change in the rules to give daughters the property right. As per the Hindu Succession Amendment Act, 2005, while sons had full right to the property of the deceased father regardless of their marital status, daughters could only do so till the time they were unmarried.

Once they are married, they become a part of the new Hindu Undivided Family and therefore as per law, they had no right over their father’s property. However, after a lot of assessment and examination, it was found that this was wrong on several levels. This is why as per the amendments, both married and unmarried daughters now have the same right on the father’s priority as their brothers. This rule is applicable for every case where both father and daughter were alive on September 9th, 2005 when this amendment came into action.

Further, in 2022, it was also ruled by the Supreme Court that daughters would have the right to inherit the self-acquired property of their parents and any other property that belongs to the parents as well.

So, now even married daughters have full right to the property of their parents and therefore they deserve a share as well. Their marital status has nothing to do with their inheritance anymore. This is a progressive amendment that has become the need of the hour.

Married Daughter’s Son And Their Share

Some people tend to misconstrue the law slightly. Ever since the amendment, it has been mentioned that both the brother and sister have the same rights to the deceased father’s property even after the sister has been married. However, this doesn’t by any means infer that the sister will get half the share.

As per the Indian Succession Act, several other members may be dutiful heirs too. So, the law simply infers that whatever share the brother will be entitled to, the sister is legally justified to get the same share. In many cases, daughters choose to relinquish their share willingly. This is another matter altogether.

The Right Of Mother On Son’s Property

As per law, if a son dies and the mother is alive, the property that the man leaves behind will be distributed among his wife, children, and mother. All three of them will have an equal share of his property unless otherwise mentioned explicitly in his will.

Also, in case the mother has passed away and didn’t leave a will, then her share in her son’s property will devolve among her legal heirs. Thus, a mother does have the right to share in her child’s property unless the child explicitly mentions it is not so in his will.

The Case Of Single Women

If a woman is single (divorced or unmarried) and doesn’t bear any children and she dies intestate and doesn’t leave a will behind, her property (acquired or inherited) will go back to the source.

If a female Hindu dies without leaving any will behind and doesn’t have a husband or a child, the property she inherited from her father or mother would go back to the legal heir of her parents.

The property she inherited from her husband or the father-in-law will go back to the heir of her husband. Women who are married and have children will end up giving their property to their husbands and children as per Section 15 (1)(a) of the Succession Act.

The Case Of Deceased First Wife

The husband has full rights to property that belongs to the wife for as long as she is alive. In the event of the death of the wife, her property will devolve among her husband and children.

In cases where the wife got her share from her parents or ancestors when she was alive, her husband would be able to claim the share of the property. However, if the wife did not inherit any property during her lifetime, her husband will not be able to claim it.

The Case Of Abandoned First Wife

If a Hindu man leaves his wife and doesn’t give divorce but marries another woman, her first wife and their children will stay the lawful heirs. This is because as per laws, a Hindu man cannot have two wives. So, his second wife will not be legal and the marriage is not valid as per law.

However, if the first wife was legally divorced, she will have no right to property to her husband. The children that they may have will however have a right to their biological father’s property.

If both the husband and the wife had jointly purchased a property, they would have a share in it. However, it is important to have the right document proof that states the percentage of money that they invested. This will help in coming to the right settlement.

The Second Wife

The property rights of a second wife hold a lot of value. There are laws that you need to know for assessing the rights to the property she has.

The second wife will have complete legal rights to the property of her husband. This will happen only if the first wife is dead or legally divorced. It is then that the second wife will get the due rights.

Both the children from the first and the second marriage of the husband will have equal rights. They will share the father’s property.

If the second marriage is not legal, both the second wife and her heir would not have any right to the husband’s ancestral property.

The Case Of A Widow

Even in the case of a widow, the Hindu Succession Act will come into place. If a man dies without leaving a will, his widow will take one share.

Ideally, as per the law, if a man dies without a will, his property is distributed among the class I heirs. So, it becomes important to see the relation in class I heirs that are alive and present and the property will then be distributed among them. The widow is a part of a class I heir and is therefore entitled to the property.

Rights Of Live In Couple And Their Children

While live-in relationships are not considered legal, the law offers some respite to women in live-in relationships. Couples who were in a domestic partnership for long period and have cohabited for a long are covered.

As per the Criminal Procedure Code Section 125, women who are in a live-in relationship qualify for legal rights as well as maintenance. Even children who are born out of a such relationship can claim the self-acquired property of their father. This can be done as per the Hindu Marriage Act Section 16. The children can also claim maintenance.

However, if the relations are of the walk-in and walk-out kind and the couple hasn’t cohabited for a long time; these clauses will not apply to them. Therefore, one has to decide well regarding these details.

The Case Of An Unwed Mother And Her Child

The rules are very unclear and murky as far as an unwed mother is concerned. If both of them are from the same religion, the personal laws of the couple are considered for coming to the right decision. If they are from different religions, then the child is asked during the custody case regarding whom he wants to live with.

As per the Hindu Personal Law, the natural guardian of a child until he attains five years of age is his/her mother. Post this age it is the father who is treated as the natural guardian. In case of the death of any of the parents at any point in time, the other parent automatically becomes the natural guardian.

The Case Of Illegitimate Children

Do you know who is called illegitimate children? Here are some of the children who are categorized as illegitimates.

Children who are born out of illicit and illegal relationships
Children who are born of marriages that are not legal
Children who are born through concubines
Children who are born out of marriages that are not valid because no proper ceremonies took place

As per Section 16 (3) of the Hindu Marriage Act, 1955, illegitimate children are only entitled to the property of the parents and not of any of their relatives. They do have the right to ancestral property and the self-acquired property of the children but no one else apart from that.

The Case Of Adopted Child

Those who are adopted children are also Class I heir. They will have all the rights like that of a biological one. However, the adopted child will not have any rights to the adoptive father’s property if the father had committed some crime and he, therefore, was disqualified from succeeding any property.

The Case Of Half-Blood Children

Half-blood children are siblings who have one parent in common. They may share the same father and have a different mother or they may have the same mother but have different fathers.

In such cases, when property distribution takes place, preference will be given to the child who is closer to the one who owns the property. Let us clear it with an example.

Suppose A married B and later divorced her to marry C. Now D is A’s child from B and E is C’s child from her first husband. In this case, when A’s property is divided, D will have preference over E.

The Changes To The Hindu Succession Act

The Hindu Succession Act has seen several changes over the years. The amendments are often introduced mainly as a means to accommodate the changes that tend to take place over some time. Let us see some of the key changes that occurred and are therefore noteworthy.

The Section 4(2) Amendment

Earlier, agricultural lands were not considered to be a part of the inheritance. As per this amendment, the agricultural lands too were placed under the property that could be inherited. Now, women can also claim their rights to agricultural land and this move was only done to make sure that a greater sense of equality could prevail between both men and women alike.

The Section 6 Revamped

Earlier, Section 6 of the Hindu Succession Act stated that women could have access to property rights only if it was gifted to them either by relatives or even strangers. But, despite this, the absolute ownership was retrained by those who gifted them.

The need was felt to bring in a change in this and therefore this section was completely revamped to make place for women and give them equal rights as her brothers or other male members of her family. Women can now claim rights to their father’s property even after they have been married and stay in a different family altogether.

The Section 3 Scraped

Earlier Section 3 of the Hindu Succession Act stated that women couldn’t ask for partition within a house unless the male members voiced the same notion. The need was felt to remove such clause as women too should have the liberty and freedom to ask for such changes. This is why the whole section was scrapped and omitted from the act altogether.

So, these are some of the key details about property rights. In the absence of a will, property matters can sometimes get very ugly. When there are a lot of takers people can often be confused regarding who deserves the right amount of share.

This is why the Indian books of law have all the details singled out. However, it is important to be aware of these details to ensure that they can ask for the rights they have been entitled to. Despite this, it is always advised to have a will in place lest the property can be divided among way too many people, leaving little to nothing with everyone.

By making a will, one will be able to outline all the details clearly and this will help in the clear demarcation of property even when the owner is not there to make any judgment. Everything from the second wife to the divorced wife, the live-in women, all have a place in the books of law.

So, make sure to account for and factor every detail in a befitting manner.

FAQs

Do daughters have a right to their father’s property?

Yes, daughters have a right to their father’s property even after they have been married. She shares equal rights as that of her brother or even an unmarried sister. Earlier it was not so, but the rules were amended to make way for this change.

Who has the highest right on a man’s property?

People who fall in class I hierarchy are the ones who have the direct right to a man’s property. If no one from the class I hierarchy is present, the priority is then distributed among class II heirs. In the case, where no one from the class II hierarchy is present, the property is then distributed among agnates. If no one from the agnates is present, it then goes to the cognate.

Do women in a live-in relationship are entitled to maintenance?

Yes, the court allows women in live-in relationships to be entitled to inheritance and maintenance as well. However, the couples should have cohabited for a long time for this to be considered.

Do divorced women have the right to property?

Divorced women have no right to the property of their ex-husbands. However, if the couple had any children, the children would have rights to their father’s property even if they were staying with the mother.

Does the second wife have a right to the father’s property?

If the marriage is legal, the wife will have a complete right to property. However, if the marriage is not legal, the wife will not have the right to property.