Law on Property Inheritance in India

Real estate in India is administered and impacted by a combination of central and state-specific laws. The right of inheritance is passing the titles, rights, debts, property, and obligations to another person on the death of an individual. Considering how priceless real estate assets are currently, legal heirs must safeguard the property/asset after the death of the person in whose name the property was registered.

Fri Apr 29 2022 | Real Estate, Wills, Probate and Trust | Comments (0)

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Real estate in India is administered and impacted by a combination of central and state-specific laws. The right of inheritance is passing the titles, rights, debts, property, and obligations to another person on the death of an individual. Considering how priceless real estate assets are currently, legal heirs must safeguard the property/asset after the death of the person in whose name the property was registered.

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. The regulatory laws of inheritance differ among societies as per their religion and have evolved  over time.

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. The same arises because of deficiency of legal knowledge on property inheritance in India. According to reports, deficiency in legal knowledge is the principal reason for family partition and therefore, it is critical to recognise the prevalent property inheritance rights of legal heirs to minimise the pain of the loss of a loved one.

Legal heirs must go through legal formalities to acquire the ownership of that property.

Legal formalities to get the property transferred may differ depending upon the nature of the property, legal heirs’ rights over the property, the number of legal heirs and other factors

Let us understand the entire property inheritance law as applicable in India:

What is a ‘Will’?

A testament, or more popularly known as a will, has been defined under the Indian Succession Act, 1925 as a legal document or a declaration indicating the will of a person. This legal document contains details like the names of one  or more persons who are to acquire, manage and benefit from his estate after his death.

A certified copy of the Will that is certified with the seal of a competent court of law with a grant of administration of the property to the legatee/ executor of the testator is called a ‘probate’. A probate, since it is a certified document of the court acts as an evidence of the executor's authority. 

A court may initiate a legal proceeding, also called as probate proceedings, after the death of the person who made the will (executor/ legatee) to determine the authenticity of the Will that has been created. Ordinarily, during the course of the court proceedings, the witnesses are asked to appear in the court to testify upon the authenticity of the Will.

A Will can only be created by a competent person with a sound mind and who is above 18 years of age i.e. not a minor. Additionally, the probate court does not deal with the merits of the case but only decides upon the validity of the Will in question.

Who can be an heir under Indian law?

Under Indian law, an heir is a person determined to succeed to the estate of an ancestor who died intestate i.e. without creating a will. In India, ‘legal heir’ is popularly used to refer to an individual who supersedes to property, either by law or a will.

Why is it important to identify a legal heir?

It is crucial to identify a legal heir because they are the ultimate successors over matters relating to insurance claims as well as property inheritance.

Who is a legal heir under Hindu law?

The following can be legal heir under the Hindu Succession (Amendment) Act, 2005:

Class I:

  • Widow,
  • Daughter,
  • Mother,
  • Son,
  • Daughter of a son who is deceased
  • Daughter of a daughter who is deceased
  • Daughter of a pre- deceased son of a pre- deceased son
  • Widow of a son who is deceased
  • Widow of a pre- deceased son of a pre- deceased son.
  • Son of a son who is deceased
  • Son of a daughter who is deceased
  • Son of a pre- deceased son of a pre- deceased son

Who can be an heir in case no one mentioned above is alive?

In case, there is no heir left from Class I, then the property goes to the heirs of Class II, who are the relatives defined under the Indian Succession Act. The defined Class II heirs are:

Class II:

I

  • father

II

  • son’s daughter’s daughter,
  • son’s daughter’s son,
  • sister,
  • brother

III

  • daughter’s daughter’s daughter
  • daughter’s daughter’s son,
  • daughter’s son’s son,
  • daughter’s son’s daughter,

IV

  • sister’s son,
  • sister’s daughter
  • brother’s daughter,
  • brother’s son,

V

  • father’s mother
  • father’s father
  • father’s widow
  • brother’s widow.

VII

  • father’s sister
  • father’s brother

VIII

  • mother’s mother
  • mother’s father

IX

  • mother’s sister
  • mother’s brother

Who can be a legal heir of a female Hindu?

The property of a female Hindu dying intestate will get transferred to:

  • the sons and daughters (which includes the children of any son or daughter who are not alive) and the husband,
  • the heirs of her husband,
  • to her mother and father,
  • to the heirs of her father; and
  • to the heirs of her mother.
  • Under the Act, if any estate succeeded by a female from her father or mother will get transferred, in the absence of any daughter or son of the dead (including the children of any pre- deceased daughter or son) to the heirs of her father.
  • Under the Act, if any estate succeeded by a female from her husband or from her father-in-law will get transferred, in the absence of any daughter or son of the dead (including the children of any pre- deceased daughter or son) to the heirs of her husband.

Who is a legal heir under Muslim law?

Under the Muslim Personal Law (Shariat) Application Act, 1937, the following can be a legal heir:

  • Husband: The marriage must be legal. Undocumented or secret marriages are not entitled.
  • Wives: Multiple wives are entitled. A divorced wife is also entitled but only if iddah period is not yet complete.
  • Sons: Step sons, adopted sons and illegitimate sons are not entitled.
  • Daughters: Step daughters, adopted daughters or illegitimate daughters are not entitled.
  • Grandsons: Daughter’s sons are not entitled but son’s sons are entitled
  • Granddaughters: Daughter’s daughter’s are not entitled but son’s daughters are entitled.
  • Father: Step- father or illegitimate father not entitled.
  • Mother: Step- mother or illegitimate mother not entitled.
  • Grandfather: Mother’s father is not entitled but father’s father is entitled.
  • Paternal Grandmother: Father’s mother is entitled.
  • Maternal Grandmother: Mother’s mother is entitled.
  • Full Brothers: All those brothers are entitled who share the same father and mother with the deceased person.
  • Full Sisters: All those sisters who share the same father and mother with the deceased person.
  • Paternal Brothers: All those brothers who share the same father, but a different mother.
  • Paternal Sisters: All those sisters who share the same father, but a different mother.
  • Maternal Brothers: All those brothers who share the same mother, but a different father.
  • Maternal Sisters: All those sisters who share the same mother, but a different father.
  • Full Nephews: Brother’s son is entitled but sister’s son is not.
  • Paternal Nephews: Paternal brother’s son is entitled but paternal brother’s daughter is not.
  • Full brother’s son’s son
  • Paternal brother’s son’s son
  • Father’s full brother
  • Father’s paternal brother.
  • Father’s full brother’s son
  • Father’s paternal brother’s son.
  • Father’s full brother’s son’s son.
  • Father’s paternal brother’s son’s son.
  • Father’s full brother’s son’s son’s son.
  • Father’s paternal brother’s son’s son’s son

Who is a legal heir under Christian law?

Under Section- 32 of the Indian Succession Act, 1925,  a Christian legal heir is a wife, a husband or the kin of the deceased, for instance,

  • Widow
  • Daughter
  • Son
  • Mother
  • Father
  • Sister
  • Brother
  • Direct blood line, as between a son and his father, grandfather and great-  grandfather, and so on in the direct increasing blood line; or between a son and his son, grandson, great- grandson and so on in the decreasing blood line.
  • If a person has died intestate and is only left with a great- grandfather, an uncle, and a nephew, but no person with direct kinship will take equal shares as under the 3rd degree of kinship.

Who is a legal heir under Parsi law?

Under Section- 54 of the Indian Succession Act, 1925, a legal heir under the Parsi personal laws are as follows:

  • Both mother and father
  • Both sisters and brothers (excluding half sisters and brothers) as well as lineal descendants of them
  • Both paternal as well as maternal grandparents
  • Children of both maternal and paternal grandparents and their lineal descendants
  • Maternal and paternal grandparents’ parents
  • Maternal and paternal grandparents’ parents’ children and their lineal descendants

In case, a Parsi Indian dies intestate with no lineal descendants nor a widow or a widower the following are entitled to the property:

  • Both mother and father
  • Both sisters and brothers (other than half sisters and brothers) and their lineal descendants
  • Both maternal and paternal grandparents
  • Children of both maternal and paternal grandparents and their lineal descendants
  • Both maternal and paternal grandparents’ parents
  • Both maternal and paternal (grandparents’ parents’ children) and their lineal descendants.
  • Half sisters and brothers and their lineal descendants
  • Widowers of sisters and/ or half sisters and widows of brothers and/ or half brothers
  • Maternal and paternal grandparents’ children’s widows or widowers.
  • Widows or widowers of the deceased lineal descendants who did not remarry

Can a child born in a live- in relationship be a legal heir in India?

In a landmark judgment in 2008, the Supreme Court of India in Vidyadhari v/s Sukhrana Bai permitted the inheritance right to the children born in a live-in relationship and thereby acknowledged them with the “legal heir” status.

What is the procedure to get a legal heir certificate?

The first step is to apply for a Legal Heir Certificate under the District Tehsildar Officer via the District Court having the jurisdiction over the area.

The second step is based on the report of the Village Administrative Officer as well as the Revenue Inspector of the District and after the mandatory inquiry, a certificate legal heirship is issued to the concerned person by the District Authority. The certificate provides the names of all the legal heirs of the deceased person.

The following documents/ details are required to get a legal heir certificate:

  • Name of the deceased person
  • Names and the relationship of family members with the deceased
  • Signatures of the Applicant
  • Residential Address of the Applicant

What is the right of inheritance?

The right of inheritance is primarily a transfer of the individual’s property, debts, titles, rights, and obligations to another individual upon the death of that person.

An Indian can succeed to or inherit one’s property  in 2 distinct ways:

  1. Through a will, which is the testamentary succession-The individual who creates the will is called the testator and the individual in whose favour the will is created is known as the legatee.
  2. Through the laws of succession when person dies intestate-In situations where the person dies intestate i.e. without creating a will, then that person’s property is transferred among his legal heirs by the applicable laws of intestate succession.

What are the different laws that govern inheritance in India?

The laws of inheritance in India are applicable based on types of succession and religious laws  which include:

  • 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 transfer of property of Hindus by a ‘Will’ i.e. a testamentary succession. This law allows any individual to transfer his own property to any individual he wants to, legally, by getting a ‘Will’ drafted.

A ‘Will” can be created by a property lawyer against self- acquired properties in India.

Types of properties that are recognised in India

In India, the following properties are recognised by the Indian property laws:

  • Self- acquired property - In case a person obtains a property on his own and that property is not owned by his father, then that property is categorised as a self- acquired property.
  • Joint Family property - In case a property is inherited by a Hindu person from his father, father’s father or father’s fathers’ father, then the property is categorised as a joint family property, provided the family has a common bloodline. The same is not a distinct entity and therefore, has a never- ending existence.
  • Separate property - In case a person obtains a property from any other relation (different ancestors), which is subjected to not be treated as joint family property, it is categorised as a separate property.

Inheritance rights of children in India

Under Indian succession laws, a son has a right in his father’s and grandfather’s property by birth. The son has equal rights as does his father in his grandfather’s ancestral property. Besides this, in a situation where the father has a self- acquired property or a separate property and he dies intestate, then the son who is a Class I heir will have succession rights equal to his living mother, sister, grandmother and brother.

However, an illegitimate son does not have a right in his father’s property. Besides this, a child who is still not born but in the mother’s womb has a right in his father’s property even if he has died intestate. But the sole condition to avail the right to succession is for the father to be  alive when the child was born.

Inheritance rights of daughters in India

The property rights for a son and a daughter were totally different before 2005. Earlier only an un-married daughter had a right to share in the ancestral property. However, after 2005, a daughter was granted similar rights as well as duties as that of a son. A daughter has equal share of right in the ancestral property.

Besides this, in a situation where the father has a self- acquired property or a separate property and he dies intestate, then the daughter who is a Class I heir will have succession rights equal to her living mother, sister, grandmother and brother.

Inheritance rights of grandchildren in India

Every grandchild, including both grandson and granddaughter, have the equal right to share in the ancestral property of their grandfather with their father.

In a situation where the property of grandfather is either self- acquired or separate, then the grandson will have inheritance right only when his father died before his grandfather.

In heritance rights of a spouse in India

A wife has no right to share in the ancestral property. As a result, a widow has absolutely no right over her husband’s ancestral property. However, since a wife is a Class I heir, the wife will have the right in the self- acquired property of her husband. Moreover, even a widowed mother also has a right in her son’s property.

Inheritance rights of an adopted child in India

In India, the rights of inheritance of an adopted child are quite similar to that of a natural born child.

However, once adopted, the child relinquishes his/ her property rights in the biological family. If the child obtains a property before the adoption, then the property shall continue to be in his/ her name.

Conclusion

Immediately after the demise of a person, before splitting the property and assets of the deceased, the potential successors must ensure that there is no debt attached to the property/ assets of the deceased.

Now, once the legal heirs to the property/ assets of the deceased are confirmed, the legal heir must register for the mutation (change of title ownership) of property in his/ her/ their own name. The procedure of mutation revises the government records by transferring the title of property. The legal heir after acquiring the property, can reside in, lend or sell the property according to his/ her/ their own desire.

FAQs on property inheritance in India

Who can inherit a property when there is no ‘Will’?

In situations where no Will has been made, the inheritance of property follows the intestate succession laws as mentioned in the Indian Succession Act of 1925. However, inheritance laws who inherit property of a person dying intestate differ for different religions.

Can parents completely disown their son in India?

Yes, in case the property of the parents is self acquired , then the son has no legal claim in it.

However , it is pertinent to note that if the parents die intestate, the son, no matter how miserable his relationship was with his parents, will acquire the property as per law.

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