Estate Planning: Inheritance rights of women in own, husband’s ancestral property, coparcenary property – The Economic Times

Clipped from: https://economictimes.indiatimes.com/wealth/plan/inheritance-rights-of-women-in-own-husbands-ancestral-property-coparcenary-property/articleshow/81103453.cms

Synopsis–A widow’s share in the joint family property of the deceased husband is only up to the share that would have come to him out of that family property, in the event of a partition/division of the joint property.

We regularly hear terms such as joint family, Hindu Undivided Family (HUF) and generally assume them to be the same. However, these terms have a fine but significant distinction which is important because of its implications on inheritance. These terms are explained below in a simple manner:

Joint hindu family property
A Hindu Joint Family consists of a common ancestor and all his lineal male descendants up to any generation together with the wife or wives (or widows) and unmarried daughters of the common ancestor and of the lineal male descendants. The existence of the common ancestor is necessary for bringing a joint family into existence. This is a typical Hindu family with the head of the family, his brothers and their respective families.
The property of a Joint Hindu family can comprise of: –

(1) Ancestral property; and
(2) Separate property of members forming common stock and available for use by all members.

There is no legal definition of ‘ancestral property‘. It is understood that a property inherited up to four generations of a male lineage from the father, father’s father or father’s father’s father is termed as ancestral property and any property inherited from mother, grandmother, uncle and even brother is not an ancestral property. Another prerequisite of an ancestral property is that an ancestral property should not have been divided or partitioned by the family members, as once a division of the ancestral property takes place, the share or portion which each coparcener gets after division becomes his or her self-acquired property.

Hindu Undivided Family (HUF) comprising Coparcenary property
The word ‘coparcenary’ literally means joint ownership. There can be different forms of joint ownership.

A Hindu un-divided family comprising of coparcenary property is a much narrower body than the joint Hindu family mentioned above. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. It commences with a common ancestor holding the property and includes his sons, grandsons and great-grandsons upto a limit of three generations. An HUF comprises of the Karta, who is the eldest male member with his wife as a member and all children born in the family (boys and girls) are coparceners.

The Mitakshara concept of coparcenary is historically based on the notion of a son’s birth right in the joint family property. Now with the change in Section 6 of the Hindu Succession Act, all daughters born into the family (unmarried and married) also acquire the same rights.

A Hindu coparcenary has six essential characteristics:
1.Lineal male descendants up to the third generation acquire right i.e. become coparceners, by birth;
2.Members of the coparcenary property have the right to determine their share in such property by demanding partition i.e., division of the property;
3.Until partition, each member owns the entire property conjointly with all the other members;
4.As a result of co-ownership, the possession and the right to enjoy of the property is common;
5.A joint property cannot be alienated/sold without the concurrence of all the coparceners unless such alienation/sale is due to necessity;
6.Interest of a deceased member lapses on his death and merges into the coparcenary property. The rights of the children of the deceased, as coparceners, continue in the coparcenary property. The right of the widow is discussed below.

Coparcenary property means and includes: (1) ancestral property, (2) acquisitions/assets bought by the coparceners with the help of ancestral property for example assets bought using the sale proceeds and/or rental income from another ancestral property, (3) assets jointly bought by the coparceners even without such help, provided there is no proof that they did not want the assets to be treated as joint family property , and (4) separate property of the coparceners thrown into the common stock.

Rights of a widow in joint property
The above characteristics are important to understand the rights of the widow of a coparcener. It is interesting to note that while a woman married to a coparcener does not fulfill the first characteristic of being born in the family and therefore, she does not become a coparcener of her husband’s family. However, upon the demise of her husband, a widow has the right to ask for partition or division of the coparcenary property. If the widow does not seek partition, her interest or right to a share in the property merges in to the coparcenary property and lapses to the other coparceners.

Rights of widow in Joint Hindu family mentioned above
The wife of a karta is not a coparcener and she cannot become a Karta of her spouse’s HUF. On the demise of a male karta, it is now possible for a daughter to become a karta of the HUF under the circumstance where she is the eldest adult coparcener in the family. However, the courts have held, in cases where the surviving male coparceners were minors, that the widow can be a manager of the HUF while distinguishing the position of a manager from that of a karta. A widow’s share in the joint family property of the deceased husband is only up to the share that would have come to him out of that family property, in the event of a partition/division of the joint property.

Rights of daughters in joint family property after the 2005 Amendment to the Hindu Succession Act
Now daughters are also coparceners and enjoy equal rights (as sons) to the joint Hindu property. Daughters have the same right as sons over the ancestral property as well. In case of partition of joint property, all members are entitled to get an equal share of the property.

In a landmark judgement recently given by the Supreme Court of India in the matter of Vineeta Sharma Vs Rakesh Sharma & others, it has been reiterated that the 2005 amendment has retroactive effect and the daughters who were alive at the time of the amendment even if they were born prior to it have a right in the joint family property provided it has not already been partitioned prior to the amendment.

In case of a coparcenary property, the daughter of a coparcener shall:
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as a son would be and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener.

Today a girl born in a Hindu family has the following rights on family property:
1.Property inherited from her father or the mother.
2.Property inherited from her husband or father-in-law by the female.
3.Property obtained from any other sources like by way of, inheritance, gift or otherwise; and
4.Self-acquired property.

The property of a Hindu lady who passes away without a Will, devolves in the following manner:
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.

However, if the Hindu lady dies without leaving behind a son, daughter then a property inherited by her from her father or mother goes to the heirs of the father; and similarly, a property inherited from her husband or father-in-law goes to the heirs of her husband for example son, daughter, son of a pre-deceased son, so on and so forth. The order of succession shall be in the same order and according to the same rules as would have applied if the property had been the father’s or the mother’s or the husband’s as the case may be, and such person had died intestate in respect thereof immediately after the intestate’s death

It is also important to understand the order of succession which defines the manner of distribution among heirs of a Hindu lady in a specified category. In case of intestate death of a Hindu lady her class I legal heirs are her son, daughter and husband who shall be equal beneficiaries. In case any son or daughter of the intestate has pre-deceased such female, and has left behind a surviving child or children then such child/children shall be entitled to the right of inheritance of his father or mother i.e. the son or the daughter of the deceased female, as the case may be. The wife or the husband of the predeceased child does not have inheritance rights.

(The author is advocate and partner at SNG & Partners.)

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