It has never been a good time to be a woman. 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 have all converged to give women a hearing and heft.
Still, there are many areas that can do with a nudge to empower them, one being the succession and inheritance laws. For years, women in India have been discriminated against and denied the right to ancestral property due to various reasons. One, 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, inheritance rights of the remaining groups are governed by the Indian Succession Act, 1925,” says Soumya Rajan, MD & CEO, Waterfield Advisors.
Second, there is low awareness and literacy among women about their own rights and, understandably, they have shown little inclination to contest in courts. Thirdly, 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 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,” says Rohan Mahajan, Founder & CEO, LawRato. com. “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,” says Raj Lakhotia, Founder & Director, Dilsewill.com, an online will-maker.
Also read: 5 steps women must take to safeguard inheritance
Strangely enough, though, laws have not always been the motivating factor for women asserting their inheritance rights. According to a report by the Thomson Reuters Foundation in March this year, shooting land prices in Haryana have seen a significant rise in the number of women claiming their inheritance.
Ironically, however, the inheritance laws that are supposed to empower women have also had a contrarian impact, according to a 2018 study conducted by King’s College London, New York University and the University of Essex. The report states that awarding inheritance rights to women between 1970 and 1990 led to increased female foeticide and higher female infant mortality rates, a finding supported by the Economic Survey 2017-18. 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.
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 the former, we list the inheritance and succession rights of women, be it a wife, daughter, mother or sister for the main religious groups in India.
Which Act applies to whom?
Hindu Succession Act, 1956
Laws of succession apply to Hindus, Sikhs, Jains and Buddhists for the nontestamentary or intestate succession and inheritance.
Indian Succession Act, 1925
Applicable to Parsis for intestate succession, specifically under Sections 50 to 56.
Indian Succession Act, 1925
Laws of succession applicable to Christians and Jews, specifically under Sections 31 to 49.
Muslim Personal Law (Shariat) Application Act, 1937
Laws of succession governing Muslims for non-testamentary succession. Where a Muslim has died with a will, the issue is governed by the Indian Succession Act, 1925, where a will relates to immovable property within the states of West Bengal, and that of Madras and Mumbai jurisdiction.
Special Marriage Act, 1954
Laws of succession in case of interfaith marriages
What are your inheritance rights?
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 four generations of male lineage without any division, and the right to share in it is accrued by birth,” says Rajesh Narain Gupta, Managing Partner, SNG & Partners, Advocates & Solicitors. On the other hand, 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,” says Lakhotia.
When a man dies without a will, it devolves to his heirs according to four 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. Here’s how the various women in a man’s life inherit his property if he dies intestate.
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,” says Mahajan.
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,” says Rajesh Mahindru, Advocate, Delhi High Court.
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,” says Gupta.
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 twothirds 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.
“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,” says Mahajan.
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, that is, without leaving 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,” says Lakhotia.
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. 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,” says Gupta.
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, adds Gupta.
“A married Hindu daughter also has right of residence in her father’s house if she is deserted, divorced or widowed,” says Mahajan.
In the case of 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 the property of her predeceased son like other surviving entitled sharers. Besides, a widowed mother is entitled to maintenance from her children who are not dependants. 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 has also expired.
Gender bias in succession laws
Here are instances where women’s rights are affected due to a clear skew in favour of men. These laws need an immediate overhaul.
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.
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 disfavours 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.
The share of inheritance of a woman is half that of a man. Since upon marriage, a woman receives mehr and maintenance from husband, as well as inheritance, while a man only has the inherited property, it is generally considered that the woman should have a lesser share in the inherited property.
Also read: Hindu weds Muslim: Can woman inherit from parents?
In case of Muslims, inheritance laws are governed by personal law. There are four sources of Islamic law governing this area— the Quran, the Sunna, the Ijma and the Qiya. When a man dies, both males and females become legal heirs, but the share of a female heir is typically half of that of male heirs. While two-thirds share of the property devolves equally among legal heirs, one-third can be bequeathed as per his own wish.
A wife without any children is entitled to receive one-fourth the share of property of her deceased husband, but those with children are entitled to one-eighth the share of the husband’s property. If there is more than one wife, the share may diminish. In case of divorce, her parental family has to provide maintenance after the iddat period (about three months).
“A son always takes double the share of a daughter in the property of a deceased father. However, the daughter is the absolute owner of the inherited property,” says Lakhotia. In the absence of a son, the daughter gets half the share of the inheritance. If there is more than one daughter, they collectively receive two-thirds of the inheritance.
A mother is entitled to receive one-third share of her deceased son’s property if the latter dies without any children, but will get a one-sixth share of a deceased son having children.
Christians are governed by the Indian Succession Act, 1925, specifically by Sections 31-49 of this Act. Under this, the heirs inherit equally, irrespective of the gender.
If the husband leaves behind both a widow and lineal descendants, she will get onethird the share of his property, while the remaining two-thirds will go to the descendants. If there are no lineal descendants, but other relatives are alive, one-half of the property will go to the widow and the rest to the kindred. If there are no relatives, the entire property will go to the wife.
A Christian man can legally marry a second time only after the death of the first wife or after legally divorcing her. If he has a second wife even as his first wife is alive or not divorced, the second wife or children will have no right over his property. However, the children of a legally divorced wife have an equal share over their father’s property as that of the second wife and her children.
A daughter has an equal right as her brother to the father’s property. She also has full right over her personal property upon attaining majority.
“If a person dies without a will and has left no lineal descendants, then after deducting his widow’s share, the mother will be entitled to receive an equal share as other surviving entitled sharers,” says Lakhotia. These sharers could be the brother, sister, or the widow of such sibling, or the children of any predeceased siblings.
How is your inheritance taxed?
In India, inheritance tax was abolished in 1985. “There is no inheritance or gift tax if the property is inherited from a relative or is acquired through a will. However, on sale of property that has been inherited, capital gains tax is applicable,” says Lakhotia. An inherited property, either movable or immovable, is a transfer of an account without any consideration in return and, hence, it is considered a gift for taxation purposes. However, the Income Tax Act, 1961, excludes transfer of property through will or inheritance from the purview of gift tax.
Tax on income from property
“Once the property is inherited, any source of income, such as rent or interest, is transferred to the new owner. Thus, when the heir receives any such income from the inherited property, he must declare it as a part of his income and pay tax,” says Mahajan.
Tax on sale of property
Tax is levied on capital gains on the sale of inherited property. This gain is based on the period for which the property is held by the owner. If the inherited property has been held for more than 24 months, it is treated as a long-term gain. This period also includes the period for which it was held by the previous owners.
If the holding period is less than 24 months, the actual cost of acquisition and any cost of improvement are deducted and the balance is treated as a short-term gain and taxed as per the tax slab applicable to the owner or transferer.
If the combined holding period exceeds 24 months, then the transferer has the right to deduct the cost of acquiring and improvement, while adding the rate of inflation to cost for the holding period. Then the tax is levied as per the tax rate applicable to the owner or the transferer.
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,” says Mahindru.
“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,” says Mahajan. 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.