Two-thirds of all the cases pending in Indian courts pertain to property or related frauds. There is no end to family scuffles when it comes to property. Recently, the Supreme Court (SC) ruled that owning a property is a human right. By an amendment to the Constitution Act, 1978, right to property ceased to be a fundamental right but in a welfare state property ownership rights is still a human right and nobody can dispossess the other without a strong basis. Let us examine the property rights of Indian individuals as per the Hindu Succession Act 1956.
What is the Hindu Succession Act?
The Hindus Succession Act (HSA) applies to all Hindus, Buddhist, Jain and Sikhs. It even applies to those who have converted to any of these religions or are born out of wedlock. The Hindu Succession Act does not apply to Indian Muslims and Christians since they have their personal law to determine how property would be inherited by their legal heirs. In this article, we examine the property rights of all those on whom the HSA applies. The HSA comes into question when a Hindu dies intestate (without leaving a will). Thereafter, succession depends upon the rules as carried in the HSA.
In case of a Hindu man dying intestate, his property goes to the following and in this order of preference. The following chart shows the rightful heirs as per HSA.
*Note: Agnates are relations through the males but not by blood or adoption. These can be relations through marriages. Cognates are relations through the females.
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Class-I heirs |
Class-II heirs |
Agnates |
Cognates |
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i. Son
ii. Daughter
iii. Widow
iv. Mother
v. Son of a predeceased son
vi. Daughter of predeceased son
vii. Widow of predeceased son
viii. Son of a predeceased daughter
ix. Daughter of predeceased daughter
x. Son of predeceased son of predeceased son
xi. Daughter of predeceased son of a predeceased son
xii. Widow of predeceased son of a predeceased son
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i. Father
ii. (1) Son’s daughter’s son, (2) son’s daughter’s daughter, (3) brother, (4) sister
iii. (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’ daughter’s son, (4) daughter’s daughter’s daughter.
iv. (1) Brother’s son, (2) sister’s son, (3) brother’s daughter, (4) sister’s daughter.
v. Father’s father; father’s mother.
vi. Father’s widow; brother’s widow.
vii. Father’s brother; father’s sister.
viii. Mother’s father; mother’s mother
ix. Mother’s brother; mother’s sister.
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Example: Father’s brother’s son or even father’s brother’s widow.
Rule 1: Of two heirs, the one who is in nearer line is preferred.
Rule 2: Where the number of degrees of ascent is the same or none, that heir is preferred who is closer to the common ancestor.
Rule 3: Where neither heir is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously.
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Example: Father’s sister’s son or brother’s daughter’s son
Rule 1: Of two heirs, the one who is in nearer line is preferred.
Rule 2: Where the number of degrees of ascent is the same or none, that heir is preferred who is closer to the common ancestor.
Rule 3: Where neither heir is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously
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Property rights of daughters
The HSA was amended in 2005, and it gave equal rights to the daughter in terms of property. Prior to 2005, sons enjoyed rights over the deceased father’s property whereas daughters could do so only till she was unmarried. It was understood that post-marriage, a woman attaches herself to the husband’s family and is, therefore, a rightful in another Hindu Undivided Family (HUF) altogether. Now, married and unmarried daughters have the same rights on their father’s property as their brothers. They are also entitled to equal duties, liabilities as their brothers.
In 2005, it was also ruled that a daughter has the same rights provided that both father and daughter were alive on September 9, 2005. In 2018, the SC stated that a daughter can inherit her deceased father’s property no matter whether the father was alive on this date or not. Hereon, women were also accepted as coparceners. They can demand a share in the father’s property.
Property rights of mother on son’s property
A mother is a legal heir to her deceased son’s property. Therefore, if a man leaves behind his mother, wife and children, all of them have an equal right on his property. Do note that if the mother passes away without creating a will, her share in her son’s property will devolve upon her legal heirs, including her other children.
Property rights of an adopted child
An adopted child is also a Class-I heir and enjoys all the rights that a biological child is entitled to. However, an adopted child cannot stake claim to his adoptive father’s property in case this father was disqualified from succeeding to any property because of a crime that he might have committed. If the father had converted to any other religion and the adopted child is practising the same religion as well, even in this case, the adopted child cannot inherit the ancestral property.
Property rights of an abandoned first wife
Suppose a Hindu man leaves his wife without a divorce and marries another. In this case, his first marriage has not been annulled by law and the first wife and their children are lawful heirs. If the two are divorced, the first wife cannot stake any claim in the property and all her belongings are solely hers.
Even in the case where the husband and wife may have contributed towards the purchase of a property, it is important to have documented proof of percentage of monetary contribution of each in case of a divorce. This is important especially in case you want to file a property eviction suit.