In our Country many women are unaware about their rights regarding share of family property and even if they know their rights, they don’t know how to avail or enforce them. We have always seen that women are deprived of their rights, Property right is also a part of it. There are many reasons behind keeping women away from property rights, such as less awareness about law relating to property right, parents think that their daughter is going to get married and will go to her In-Laws home so she doesn’t need a property share, the son will going to take care of parents till their last breath so he has a right on the property, Strong patriarchal tradition and so on.
Women are not only deprived from their parents Property, but also from their In-Laws Property. If a woman’s husband died, the distribution of his property is decided by the elder member of the family and the same time woman cannot speak about her right of her husband’s property because she doesn’t know enough about her right and it may also happen that there is no one to guide her. But now the time has change and women are come forward to fight for their rights and Right of Property is also one of them. Women have just need to understand how they can avail their rights through legally and how much share will she get from the property of parents as well as from the husband Property and what are the steps required.
The following Act/laws are applicable for right on property:
- The Hindu Succession Act, 1956/ 2005 – This Succession law applies on succession without a will i.e. intestate succession among Hindus which is also applicable to Sikhs, Jains and Buddhists.
- The Indian Succession Act, 1925 – This Succession law is applicable on transfers of property of Hindus by a ‘Will’ i.e. a testamentary succession. Also included right of property of Christians.
- Muslim Personal Law (Shariat) Application Act, 1937- Laws of succession governing Muslims for non-testamentary (Without Will) succession. Where a Muslim has died with a will, the issue is governed by the Indian Succession Act, 1925.
Hindu Succession Act, 1956
Prior to the year 2005, a Hindu Undivided Family (hereinafter called as HUF) was understood as a family with a common ancestor and all lineal male descendants* together with their wives and unmarried daughters. The 2005 Amendment to the Hindu Succession Act, 1956 however brought about a vital change to the concept of an HUF.
Prior to the Amendment of 2005, only lineal male descendants were regarded as coparceners (Coparcener means the children who have right on property on their birth) daughters merely attained the status of members (Member of family who doesn’t have right on property they merely treated as member of family) on birth and not coparceners. The Amendment of 2005 in Hindu succession Act has conferred equal rights upon daughters. Daughters, just as sons, become coparceners of their father’s HUFs on birth, with the result that they have equal rights as sons in the properties of the HUF.
*lineal male descendants – a male person who was born into or legally adopted into the direct line of individuals decent e.g. Children, grandchildren and great grandchildren
Now we will see how women will get property right at their stage of life like Mother Wife, Daughter, Sister and Widow under the Hindu Succession Act 1956 (Amendment Act 2005)
Mother has right upon property of her predecease Son like other surviving member of the family who is come under the class I heir Categories (Class of Heir mentioned at the end of Article)
Sister has right on property of her Brother only after there is no one legal heir in class I Heir Categories. Sisters are come under class II heir Categories at the time share of property of brother .
Before amendment in Hindu Succession Act 1956, the daughter only treated as member of the family that means she does not have right on property of her father whereas son has right to get share in the father’s property. The father’s property included self-acquire and ancestral property.
After Amendment in the Hindu Succession Act in the year 2005, the Daughters also entitled to get the same share as son in the property of the father. If the father died intestate (that means without making Will) the Class I Heir have first right of the property which included Widow, Daughter and Son.
Married daughter also have equal right on the father’s Property. Just because of her Marriage, no one can deprive her from right on property of fathers.
Condition to get share in property of father under Hindu Succession Act 1956After Amendment in the Act in the year 2005
Father should have alive on date 9th September 2005 (the date of Act amended). If father had died before the 9 September 2005, then the daughter will not entitle get share in the fathers Property. The distribution of the property will be done according to the Hindu Succession Act 1596 (before amended) or as per last Will of the Father.
Daughter born after or before the date of 9th September 2005 does not matter to get share in the property of the Father. If she died before the amendment in the Act i.e. before 9 September 2005, her children could claim the same.
Wife come under the Class I Heir hence, no one can deprive her to get share of her husband property and if she stays in Joint Family then the share from the property of Joint Family. Widow women get equal right of her predecease husband’s Property as share get by the Daughter and son.
If the woman got divorce from her husband then at the time of their divorce, woman got lumpsum amount i.e Alimony or Monthly Maintenance from her husband’s Property. After her divorce, husband died without making “Will” then the wife will not entitle to get share from her husband’s Property.
If the husbands remarry without taking divorce from the first wife then second wife will not have any right on the property of her husband. the second marriage of husband will be void and on this ground second wife will not be entitled to get share but the children of second wife will get share from her husband property as other legal heir of the property.
If the husband died without making will, then the share in the property will be given to the wife according to the condition:
If they have children then the wife will get one-eight(1/8) share in the property
If they don’t have children then the wife will get one-fourth(1/4) share in the property and
If there is more than one wife then the wife will get one-sixteen(1/16) share in the property
The Mother entitled to get share in property of children if the children are independent. The mother will get share ratio in the property as follows:
If the son died leaving behind the children then the mother will get one- sixth share in the property of son.
If the son died without having children then the mother will get one- sixth share in the property of son.
Christian Women right to get share in Property is governed under the Indian Succession Act 1925.
Share of Wife in the Property of Husband:
If the husband died leaving behind children then the wife will get one-third share and remaining two-third share will be distributed among all children.
If the husband died and they don’t have children then the wife will get half of the share in the property and half share will distributed among the relative.
If husband died and not having children and any relatives then the whole property will goes to the wife.
We have seen the Right of Women on the Property also have seen how much ratio of share they can avail legally from the property.
But now question arise how to get physical right on property???
To get share in the property after the death of the parents, husband or owner of the property, you have to file Application for Hairship/Succession Certificate in the Court and for that you have to consult the Advocate.
Written by: Adv Lalit Jain and Adv. Kalyani Tapal