Rights to ancestral property: What every Indian woman must know

Can women claim an equal right in their ancestral property? Even if they have received jewellery and dowry? What does the law say? We asked advocates V S Jothi Lakshmi and N Lalithaa.

10 years ago, Meenakshi Kumaran, a resident of Madurai, got married in a grand ceremony. Her parents not only bore the cost of the wedding but also gifted her 100 sovereigns ( 1 sovereign = 8 grams) of jewellery. That was only about 1/10th of the property of her father, though.

Today, Meenakshi is penniless. Her extravagant and alcoholic husband who recently died had long sold off her jewels. After her father passed away a few years ago, her brother took over his property and refuses to give Meenakshi her legitimate share. And on her part, having grown up in a patriarchal society, it never occurred to Meenakshi to ask for her rightful share.

In fact, Meenakshi had no clue, until recently, that she had a share in it by law. According to existing laws, a daughter has the same right as a son over the property of a father. She is now fighting a legal battle to win her rights to that property.

Meenakshi is not an exception. It has been 15 years since the amendment of The Hindu Succession Act (2005), but a lot of women, even educated ones, are in the dark about their rights over ancestral property. It is a common notion among most that a fancy marriage and sovereigns of gold are what the daughter can expect at best. The suffering of women such as Meenakshi opens our eyes to the need for making more women aware of their rights in ancestral property. 

How can women claim these rights? How tough is the legal battle? Indian women, irrespective of class and education, have many doubts that need to be cleared. At Citizen Matters, we spoke to noted advocates V S Jothi Lakshmi and N Lalithaa to learn more about how to fight for their share of the property. Here are the excerpts: 

What does Indian law say about the property rights of women? 

India doesn’t have a Uniform Civil Code, which means the law in matters pertaining to inheritance and sharing of property differs for people from different faiths. The two important laws in regard to property share are the Hindu Succession Act, 2005 and the Indian Succession Act, 1925.

Before getting into the nuances of these acts, we must understand two legal terms: testamentary and intestate. A registered will plays a significant role in testamentary succession; it supersedes all laws. For example, if a father legally bequeaths the whole of his property to his son through a will, that is final.  Just like in the 2019 mystery film Knives Out, the owner of the property can leave it to a complete stranger, who is not his kin and kith.  

An intestate person is one who dies without writing a will. In that case, the property is divided equally between all his children irrespective of gender, according to the above-mentioned laws.

The Hindu Succession act, 2005: Applies to cases without a will i.e intestate Hindus, Sikhs, Buddhists and Jains.  

The Indian Succession Act, 1925: Transfer of property of Hindus and Muslims by a will (testamentary succession), Christians, Parsis and Jews are governed by The Indian Succession Act. 

Muslim Personal Law (Shariat) Application Act, 1937: Applies if there is no registered will. Muslims rely on laws of the sect they belong to. 

Do Christians and Muslim women also have an equal share in the property of the father? 

Yes. A daughter is entitled to inherit an equal share as a son in the Christian law. But there is a need to re-examine the Muslim woman’s right to property. A daughter receives only half of the share of a son. Even if the father wants to give her an equal share through a will, existing laws do not permit it. There is strong opposition to it, and Muslim women are filing PILs asking for an amendment in the law.

Are there any limitations of these laws in terms of granting women their rightful share in property ? 

According to Section 6 of the Hindu Succession Act, equal status was granted only to daughters whose fathers were alive when the amendment came into force on September 9 2005.

However, in the Vineeta Sharma vs Rakesh Sharma judgement (August 11 2020), the apex court held that daughters whose fathers died intestate before the amendment date also have equal rights over the property. The apex court had held that the daughter has an equal share of the father’s property in her own right by birth.

The judgement is welcomed by women across all quarters, as one of the biggest obstacles (the amendment date) to the gender equality movement is considered to have been thus cleared.

If my father excludes me in his will, can I still fight for my rights as a daughter? 

Yes, you have a concrete case in the court of law.  You must prove coercion, diminished mental capacity of the deceased at the time of bequest, or outright fraud to have a will’s terms dismissed. Talk to your attorney to get a clear picture of your chances of winning the case. 

What documents do I need to fight the legal battle?

Anyone fighting a property dispute case requires a legal heir certificate. You can get it from the Tahsildar. The court should issue a succession certificate.  Considering the hearings, verifications and other court procedures, the case may go on for at least two years.  

What rights do women have over their husbands’ property? 

Hindu, Buddhist, Jain and Sikh women: The property of the husband is equally divided between the wife and the children. Widowed women also have equal rights to their predeceased husbands’ property, as their children. If alimony and maintenance are settled, divorced women will have no claim over the property of the former husband, even though their children do. 

Muslim women are entitled to 1/8th of the share of the predeceased husband if they have children and 1/4th if they have no children. 

Christian, Paris and Jew women receive 1/3rd share of the predeceased husband if they have children and half of the share if they have no children. 

There is a popular sentiment in society that since women anyway receive valuable gifts from their parents during festivals, besides her share of dowry, she should not claim property from the paternal home. How does one address this?  

That is just a patriarchal strategy. Parents or brothers shower her with gifts at her marriage and exclude her from the big picture. But a woman is entitled to the properties of both her husband and her father. It is ironic how men expect their wives to bring property from paternal homes but are not willing to give the legitimate share to their sisters!   

In a just, egalitarian society, women should refrain from having grand weddings and the concept of dowry should be abolished. These should be replaced with an equal share in property when the time comes.

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