The Hindu Succession Act, 1956 is an Act of the Parliament of India enacted to amend and codify the law relating to intestate or unwilled succession, among Hindus, Buddhists, Jains, and Sikhs. The Act lays down a uniform and comprehensive system of inheritance and succession into one Act.
How to protect Women and how succession laws vary in India
Whether you are a wife, daughter or mother, what you are entitled to and how you can claim it in India?
It has never been a good time to be a woman in India. Shackled at home, deprived of rights in society, and subjected to gender bias at the workplace, women have borne the brunt of being the weaker sex all through history. Though the skew in rights and treatment hasn’t quite corrected itself, women are possibly in a better place today than ever before. This is because rising awareness, availability of global forums and social media to voice their anguish and angst, changes in laws to empower them, and proactive governments to implement gender neutral laws in India have all converged to give women a hearing and heft.
For years, women in India have been discriminated against and denied the right to ancestral property due to various reasons such as there is no uniformity in inheritance laws, with various religious communities governed by their own personal laws and different state tribals by their customary laws. Most of these laws discouraged passing on property, agricultural or otherwise, to women for fear of fragmentation of land holding or losing it once the woman got married. The basic framework for inheritance differs on the basis of religion in India and not on the basis of the nature of asset. While Hindu families and other identified religions have their own inheritance laws Hindu Succession Act, 1956, inheritance rights of the remaining groups are governed by the Indian Succession Act, 1925.
There is low awareness and literacy among women about their own rights and, understandably, they have shown little inclination to contest in courts. Strong patriarchal traditions have translated into fear of violence and threat of violation by their male relatives, preventing women from fighting for their inheritance rights. In fact, in several northern and western states, women give up their claim over ancestral property due to the custom of ‘haq tyag” or “release of interest’ or “voluntary renunciation of rights”. This is justified on the grounds that as the father pays dowry and finances the daughter’s wedding, only sons should get the family property. Till as late as the formulation of the Hindu Succession Act, 1956, the law was blatantly biased against women. It was only after the amendment in the Hindu Succession Act in 2005, whereby equal rights were awarded to daughters in their fathers’ ancestral property, that it became more balanced.
There were issues with regards to awarding inheritance rights to women between 1970 and 1990 which led to increased female foeticide and higher female infant mortality rates in Northern & Western Indian States. This is because some people consider girls to be a liability since the inherited property falls into the hands of her in-laws. There is also a big incentive to reward a son with inheritance, since he works on the land and creates wealth, while looking after the parents in their old age. This finding has been documented in Research Reports. Despite such discouraging developments, gender neutral inheritance laws are the need of the hour. What will help power these is the increase in awareness among women and quick implementation of the laws.
To help with that, we list the inheritance and succession rights of women, be it a wife, daughter, mother or sister for the main religious group Hindu in India.
Which Act/Laws applies to whom?
Hindu Succession Act, 1956
Apply to Hindus, Sikhs, Jains and Buddhists for the non-testamentary or intestate succession and inheritance.
Special Marriage Act, 1954
Marriages solemnized under Special Marriage Act are not governed by personal laws. Inter-religion marriages are performed under this Act. It also applies to Indian national living abroad.
Succession to the property of person married under this Act or customary marriage registered under this Act and that of their children, are governed by Indian Succession Act. However, if the parties to the marriage are Hindu, Buddhist, Sikh or Jain religion, the succession to their property will be governed by Hindu succession Act.
The Supreme Court of India, in 2006, made it required to enroll all relational unions. In India, a marriage can either be enlisted under the Hindu Marriage Act, 1955 or under the Special Marriage Act, 1954. The Hindu Marriage Act is pertinent to Hindus, though the Special Marriage Act is appropriate to all residents of India regardless of their religion applicable at Court marriage.
The basic requirement for a valid marriage under this Act is the consent of both the parties to the marriage. If both the parties are ready to marry each other, that suffices it; here caste, religion, race, etc. cannot and do not act as a hindrance to their union. For marriage under this Act, the parties need to file a notice expressing their intention to marry each other, with the Marriage Registrar of the district in which at least one of the parties to the marriage has resided.
What are Testamentary and non-testamentary succession and Inheritance?
Testamentary or Testate Inheritance (Based on Will): Inheritance is as per the will of the deceased
Non-Testamentary or Intestate succession (Without Will): The deceased person dies without making the will.
However, in case if the will is related to immovable property is within the jurisdiction of Madras, Bombay High Courts and Calcutta High Courts (located within West Bengal), they are bound by the Indian Succession Act 1925 for the purpose of testamentary succession.
What are your inheritance rights?
Hindus
The Hindu Succession Act, 1956, governs the succession and inheritance laws for Hindus, along with Buddhists, Jains and Sikhs. This is applicable to both women and men. The Act makes no distinction between movable and immovable property. It only applies to intestate succession (where there is no will) and to anyone who converts to Hinduism. It has no application in case of testamentary succession (where there is a will). The property owned by a person can be classified only as ancestral or self-acquired:
Ancestral property is one that is inherited up to 4 generations of male lineage without any division, and the right to share in it is accrued by birth.
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. For a self-acquired property, the Hindu father continues to enjoy unfettered discretion to will it to anyone he wishes. This can allow him to discriminate against women with impunity. When a man dies without a will, it devolves to his heirs according to 4 categories— Class I, Class II, Agnates (if two people are related by blood or adoption wholly through males) and Cognates (who are related to the intestate by blood or adoption but not wholly through males)—with first preference to Class I heirs. In the absence of any Class I heirs, the property devolves upon Class II heirs. If a man leaves no Class I or Class II heirs, the property devolves to agnates, and then to cognates.
Class I heirs: The Class I heirs have the first right and these include the widow, daughters, sons and mother.
Detailed list is:
Sons, Daughters, Widow, Mother, Son of a pre-deceased son, Daughter of a pre-deceased son, Son of a pre-deceased daughter, Daughter of a pre-deceased daughter, Widow of a pre-deceased son, Son of a pre-deceased son of a pre-deceased son, Daughter of a pre-deceased son of a pre-deceased son, Widow of a pre-deceased son of a pre-deceased son, Son of a predeceased daughter of a predeceased daughter, Daughter of a deceased daughter of a predeceased daughter, Daughter of a predeceased son of a predeceased daughter, Daughter of a predeceased daughter of predeceased son.
How the various women in a man’s life inherit his property if he dies intestate.
Wives A wife is entitled to an equal share of her husband’s properties like other surviving, entitled heirs. If there are no other sharers, the wife has full right to inherit the entire property of her deceased husband. According to Section 10 of the Hindu Succession Act, the distribution of property takes place among all heirs, including the deceased’s widow. A married Hindu woman also has exclusive rights over her individual property. She is the sole owner and manager of her assets whether these are earned, inherited or gifted. She is also entitled to maintenance, support and shelter from her husband, and if they stay in a joint family, then from the joint family. If the couple is divorced, all issues related to maintenance and permanent alimony are ordinarily decided at the time of divorce. It leads to total severance with husband and the wife does not have any right in his estate if he dies without a will. If during the lifetime of the first wife, the husband remarries without a divorce, the second marriage will be considered void. The second wife will not inherit anything and the rights of the first wife will not be affected. However, the children from second marriage will get a share along with other legal heirs. In case of an inter-faith marriage, the wife is entitled to inheritance as per the personal laws applicable to the religion of her husband. So, if a Hindu woman marries a Muslim man without converting to Islam beforehand, the marriage would neither be ‘regular’ nor ‘valid’, under the existing laws. While she will be entitled to dower (mehr), she cannot inherit her husband’s property. If the husband is a Christian, typically, the wife’s religion does not prevent her from inheriting. If the husband has left behind both a widow and lineal descendants, she will get one-third the share in his estate, while two-thirds will go to the latter. If there are no lineal descendants, but other kindred are alive, one-half of the estate passes to the widow and the rest to the kindred.
Daughters So as to end discrimination against women, changes in the Hindu Succession Act, 1956, were made on 9 September 2005 through the Hindu Succession (Amendment) Act, 2005, wherein Section 6 of the Act was amended. This means that now a daughter has an equal right to ancestral property as a son and her share in it accrues by birth itself. Before 2005, only sons had a share in such property. So, by law, a father cannot “WILL” such property to anyone he wants to, or deprive a daughter of her share in it. If the father dies intestate (Without making a Will), all legal heirs have an equal right to the property. The Class I heirs have the first right and these include the widow, daughters and sons, among others. Each heir is entitled to one part of the property, which means that as a daughter you have a right to a share in your father’s property. “A share of a predeceased daughter, which she would have got had she been alive at the time of partition, shall be allotted to her surviving children. Before 2005, the Hindu Succession Act considered daughters only as members of the Hindu Undivided Family (HUF), not coparceners. The latter are the lineal descendants of a common ancestor, with the first four generations having a birthright to ancestral or self-acquired property. However, once the daughter was married, she was no longer considered a member of the HUF. However, after the amendment, the daughter has been recognised as a corparcener and her marital status makes no difference to her right. Also, a daughter will have the same rights as a son to the father’s property, be it ancestral or self-acquired, irrespective of her date of birth. It does not matter if she was born before or after 9 September 2005. On the other hand, the father should have been alive on 9 September 2005 for the daughter to stake a claim over his property. If he had died before 2005, she will have no right over the ancestral property, and self-acquired property will be distributed as per the father’s will. In February 2018, the Supreme Court held that a daughter, living or dead, on the date of amendment will be entitled to the share in father’s property. This implied that even if the daughter was not alive on the date of amendment, her children could claim partition. In April 2018, in the case of Mangalaam vs T.B.Raju, the Supreme Court held that the living daughters of living coparceners would be entitled to claim a share in the ancestral property. A married Hindu daughter also has right of residence in her father’s house if she is deserted, divorced or widowed. In the case of a self-acquired property, he has the right to gift the property or will it to anyone he wants, and a daughter will not be able to raise an objection. Mothers & sisters Since a mother falls under the Class I heir category, she is entitled to receive an equal share of property of her predeceased son like other surviving entitled sharers. Besides, a widowed mother is entitled to maintenance from her children who are not dependents.
The sister, after a brother’s death, being a Class II legal heir would inherit along with others as per entry II only if there is no Class I legal heir and the father of the deceased have also expired.
Gender bias in succession laws
There are the instances where women’s rights are affected due to a clear skew in favour of men. These laws need an immediate overhaul.
Woman’s property
Hindu Women
As per Sections 15 & 16 of the Hindu Succession Act, 1956, if a woman dies intestate, her self-acquired property goes to husband’s heirs, not her parents. In case of a man, the property is inherited by his relatives, not the woman’s heirs. This is a clear bias, wherein her property goes to husband’s heirs.
Agricultural land
In some agrarian states, women don’t inherit agricultural land to avoid fragmentation of land holding. Schedule IX of the Indian Constitution has the Zamindari Abolition and Land Reforms Acts of various states that govern agricultural land holdings, and the government’s stance dis-favours women.
Tribal women
Customary laws of tribals are mostly patriarchal, divesting women of their inheritance rights. The Himachal Pradesh High Court ruling in 2015 and the Bombay High Court ruling in 2019 grant women rights as per the Hindu Succession Act, 1956, but tribal women in many states like Jharkhand continue to suffer.
What to do if your rights are denied? If a woman does not get her due share in the ancestral property, she can send a legal notice to the party denying her the right. If she is still restrained from seeking her claim, she can file a suit for partition in a civil court claiming her share. She can also seek partition of the properties occupied by other legal heirs. “If physical partition of properties is not possible, the court can auction the properties to give her share to the woman. In order to ensure that the property is not sold during the pendency of the suit, she can also seek an injunction from the court. If the property has been sold without her consent, she can add the buyer as a party in the suit if she has not instituted a suit yet, or can request the court to add the buyer as a party if the suit has been filed.
Hindu-Muslim marriage: Can Hindu woman marrying a Muslim (and having converted to Islam) still claim right to her parent's self-acquired property?
There is no legal concept of disowning a child, but parents can deprive a child of his share in their self-acquired property through a will. Marrying a person of another religion or converting does not deprive woman of their rights. You can claim a share in their property. As it was the father's self-acquired property, the daughter, being a Class I legal heir, will get an equal share along with the son. Marriage will not make any difference to the daughter's share. You can claim your share by filing a suit for partition.
HUF Property
After the 2005 amendment in the Hindu Succession Act, 1956, your daughter is a coparcener in the HUF. So, after you, she can claim the HUF account. You can safeguard their interests by informing the bank about HUF members and making your daughter a nominee.
If the father has purchased the property after selling the ancestral property and expired after the amendment in the Hindu Succession Act in 2005, daughter is now a coparcener and hence, she has an equal share in the property. Daughter can enforce the same by filing a suit for partition.
Who has the right over a woman’s property after she dies?
Section 14 of Hindu Succession Act describes what constitutes a woman’s property, owned and acquired by her. It does not distinguish between inherited and self-acquired property.
Rights of a woman to a property vary because of various factors like religion, culture, the social status of the woman and the society to which she belongs. Here’s how the property of a Hindu woman devolves if she dies without a will.
HINDU WOMAN If she is married Sections 14, 15 and 16 of the Hindu Succession Act, 1956, govern the manner in which the property of a married woman is passed on to heirs.
Section 14 describes what constitutes a woman’s property—both movable and immovable, owned and acquired by her. It does not distinguish between inherited and self-acquired property. It includes all property obtained through ‘inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner and also any such property held by her as “streedhana”.
Section 15, sub-section 1 The devolution of the woman’s property as per the following priority:
1. First preference to sons and daughters, including children of any predeceased son or daughter, and the husband;
2. Heirs of the husband;
3. Father and mother;
4. Heirs of the father; or
5. Heirs of the mother
Section 15, sub-section 2 This explains the distribution of property depending on whether she has inherited it from her parents, or husband, or in-laws. Any property inherited by a Hindu woman from her father or mother devolves, in the absence of any son or daughter of the deceased (including kids of predeceased son or daughter), not upon the heirs referred to in sub-section (1), but upon the father’s heirs.
Any property inherited by a Hindu woman from her husband or father-in law devolves, in the absence of any son or daughter of the deceased (including kids of predeceased son or daughter) not upon the heirs referred to in sub-section (1) in the order specified, but upon the heirs of the husband.
If she is not married Devolution is still governed by Section 15, with no distinction between married and unmarried woman, and follows the same priority.
How women can safeguard their inheritance
Steps to be followed:
1. Get multiple copies of death certificate and have them attested, if needed. This is because it is required at all the financial institutions for transferring the assets or investments, making a claim, or selling the deceased’s assets.
2. In case of mutual agreement among family members, a will is the best way to pass on assets. While nominations help in transferring movable assets like bank deposits or insurance policies, a will takes legal precedence over a nomination. If there is a discord, a will is the best option, especially in case of self-acquired property. Get a probate, if required, as it’s needed in some states.
3. If there is no will or nominee, in case of movable property, get a succession certificate. This is a must if there is neither a will nor a nominee, or both the parents pass away without a will. In case of immovable property, the property is divided as per the succession laws among all the legal heirs.
4. In case of real estate, have the property transferred in your name at the sub-registrar’s office. Here, you will need the will (with probate) or a succession certificate. Without a will, you may also need an affidavit with a no-objection certificate from other legal heirs. The next step is mutation of property, which means transferring the title in land revenue records.
5. Inform the banks so that no one can withdraw the money from accounts and also file a petition for succession certificate (as mentioned earlier) to claim your share in the account balance. In case of any apprehension, also file an injunction suit to prevent other legal heirs from denying you your share in the accounts, or other properties of your father or husband.
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