Tapuriah Jain & Associates

PROPERTY RIGHTS UNDER HINDU LAW

“Property” means property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property.

Definition of Property

Eminent jurist Salmond while defining the term property, observed that the term might be understood in one of the three senses mentioned below:

(i) The term property includes all the legal rights of a person. That is to say that it includes complete ownership of a man on material as well as incorporeal things.

(ii) The term includes not a man’s personal rights, but only his proprietary rights.

(iii) The term includes the rights of ownership in material things such as building etc. According to another jurist, Bentham, the term property includes ownership of material objects alone. He has, in a way, interpreted the term in a narrow sense. According to Austin, Property denotes the greatest right of enjoyment known to the law, including servitudes. The Property includes both proprietaries as well as the personal rights of a man.

Kinds of property :

Property is essentially of two kinds Corporeal Property and Incorporeal Property. Corporeal Property can be further divided into Movable and Immovable Property and real and personal property. Incorporeal property is of two kinds-in re propria and rights in re aliena or encumbrances.

1) Corporeal And Incorporeal Property -

(I) Corporeal Property - Corporeal property is the right of ownership in material things.Corporeal property is always visible and tangible. Corporeal property can be perceived by senses. It can be seen or touched. Examples -A House, Land, Car, Bike etc.

(II) Incorporeal Property - Incorporeal property also called as intellectual or conventional property. it includes all those valuable interests which are protected by law.Incorporeal property is intangible. It cannot be Perceived by Senses. Examples - Patents, Copyrights, Trademarks etc.

2) Movable Property and Immovable Property - All Corporeal Property is either movable or immovable. In English law, these are termed as chattels and land respectively.

(I) Movable Property - Movable property is one, which can be transferred from one place to another place with the human efforts.

(II) Immovable Property - According to the General Clauses Act, 1897 "Immovable property includes land, benefits arising out of land and things attached to the earth or permanently fastened or anything attached to the earth."

According to the Indian Regulation Act, "immovable property includes land, building, hereditary allowance, rights of way, lights, Ferries, Fisheries or any other benefit to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth but not standing Timber, growing crops or grass.

Section 3 Para 2 of the Transfer of Property Act 1882 defines immovable property as "immovable property does not include standing Timber, growing crops or grass. Movable property includes corporeal property which is not immovable.

According to Salmond immovable property (i.e., land) has the following elements-

A) a determinate portion of the surface of the earth.

B) The ground beneath the surface down to the centre of the earth.

C) The column of space above the surface ad infinitum.

D) All objects which are on or under the surface in its natural state for example-minerals natural vegetation, or stones lying loose upon the surface.

E) An object placed by human agency on or under the surface of the land with the intention of permanent an annexation, for example, House walls, Doors, Fences, etc.

3) Real and Personal Property - In English law, the property has been divided into the real and personal property. This division is identical to a great extent with that of immovable or movable. The division into real and personal is not based on any logical principle but is a result of the course of legal development in England.

a) Real property - The real property includes all rights over land with such additions and exceptions, as the law has deemed fit.

b) Personal property - The law of personal property includes all other proprietary rights whether they are in rem or in personam.

4) Public property and private property - Having regard ownership property is either public or private:

(a) Public property- Public property is that owned by the public as such in some governmental capacity. Public property is used as a designation of which are Public Juris and therefore, are considered as being owned by the public. the entire state or the community and not restricted to the domain of private person or that which belongs to a state or political constituents like provinces etc.

(b) Private property - The private property is that which is owned by an individual or some other private person.

If property is ancestral

Under the Hindu law, property is divided into two types: ancestral and self-acquired. Ancestral property is defined as one that is inherited up to four generations of male lineage and should have remained undivided throughout this period. For descendants, be it a daughter or son, an equal share in such a property 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. By birth, a daughter has a share in the ancestral property.

If property has been self-acquired by father

In the case of a self-acquired property, that is, where a father has bought a piece of land or house with his own money, a daughter is on weaker ground. The father, in this case, 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.

Who Cannot Inherit Property Under Hindu Succession Law

When a Hindu male dies intestate, that is without leaving a will, the devolution of his property upon his heirs is done by the rules specified under the Hindu Succession Act 1956. An amendment was made to this Act in 2005, prior to which women did not have right as coparceners on their ancestral property post their marriage. In 2017, the Supreme Court reiterated that all assets in a Hindu Undivided Family (HUF) would be presumed to be joint property belonging to all members equally. Yet, the law mentions conditions wherein a person is disqualified from inheriting the property, or he or she may not be the first preference, as the case may be.

In case of simultaneous deaths

Inheritance is based on a presumption in cases when two persons have died in circumstances which makes it uncertain as to which of them survived the other. Then for all purposes affecting succession to property, it is presumed that the younger survived the elder until it is proved to be contrary.

Property rights of a daughter before amendment of the Hindu Succession Act 2005

The Hindu property act recognises the concept of HUF, which means a family of persons who are lineally descended from a common ancestor and related with each other by birth or marriage. The people who are so descended from commons ancestors, were divided in two parts. In the first category are coparceners. Only males were recognised as coparceners of the HUF and all the females were called members. All the coparceners are members but vice-versa is not true.

The rights of coparceners and members in the property of the HUF, are different. Coparceners have the right to ask for partition of the property and to get the shares. Members of the HUF, like daughters and mothers, had the right of maintenance from HUF property, as well as to get a share in the property of the HUF as and when partition of the HUF took place. Upon marriage, the daughter would cease to be a member of the HUF of the father and would thus, no longer be entitled to the right of maintenance as well as to get a share in the property of the HUF, if the property were partitioned after her marriage. As only a coparcener was entitled to become the Karta of the HUF, the female members were not entitled to become a Karta of the HUF and manage its affairs.

Daughter’s right to property after the amendment to the Hindu Succession Act 2005

Section 6 of the Hindu Succession Act, 1956, which deals with coparcener’s right in the HUF property, was amended in 2005 w.e.f September 9, 2005. With this amendment, daughters have been put at par with sons, as far as coparcenary rights in HUF property are concerned. Consequently, the daughter gets all the rights attached with coparcenary, including the right to ask for partition of the property and to become a Karta of the HUF.

However, only the daughters who are born in the family, will get the coparcenary rights. Other female members, who come into the family by virtue of marriage, are still treated as members only. Thus, they are not entitled to ask for the partition but are entitled for maintenance and shares as and when partition takes place.

Married daughter’s right to property under Hindu Succession Amendment Act 2005

After marriage, a daughter will cease to be a member of her parental HUF, but will continue to be a coparcener. Thus, she is entitled to ask for partition of the HUF property, as well as to become the Karta of the HUF, in case she happens to be eldest coparcener of her father’s HUF.

Even in case of a married daughter who has died, her children shall be entitled to the shares that she would have received, if she was alive on the date of the partition. In case none of her children are alive on the day of partition, the grandchildren will be entitled to the shares that the daughter would have received on partition.

Interestingly the daughter cannot gift her share in the HUF property while she is alive but she is fully capable of giving away her share in the HUF property by way of a will. If a will is not prepared, on her death, her share in the joint property shall not devolve on other members of the HUF but will pass on to her legal heirs.

Son’s right in case of ancestral property

As has been discussed before, a son has coparcenary rights since birth. He can even claim his share in the ancestral property before his father dies, i.e. during the lifetime of the father (by way of partition). However, it is of prime importance for him to prove his succession and right to share in the property, whether the eldest son or youngest.

Son’s right in case of self acquired property

Self acquired property is the property that is acquired by a person by purchasing it using his own resources, or as a gift, or through a testamentary document (e.g. Will) or received as legal heir (i.e. received after partition, etc.)

No son (or daughter) has legal right over the self acquired property of his father or mother. The son could however claim a share if he can prove his contribution in the acquisition of property. Moreover, if the father plans to or has bequeathed his properties to some other individual by way of gift deed or will, the son will have no right or chance to receive any share. It is entirely the father’s property and it is upon his wish how he wants to transfer or not transfer it. Even the grandson has no rights over the self acquired property of his grandfather.

In the query above, if the property was ancestral property, the son would have a right in such property and could ask for partition and a share as he is a Class 1 heir.

However, since the property is self acquired, the son has no right or entitlement to a share in such property, unless he has proof of contribution towards the acquisition of that property. It only belongs to the father and it is upon the father’s decision of how he would like to bequeath the property. It does not matter whether you are the eldest son, or the youngest. You being a son cannot stop your father from selling or transferring the property. Even your son i.e. the grandson has no right to claim any share in the self acquired property of the grandfather. Only if the father dies intestate i.e. (without making a will), all children (sons or daughters) will be entitled to get shares as legal heirs.

Half-blood

If all aspects of the relation to the person from whom one is expecting to inherit property remain same, then the one who is of a biological descent shall be taken into preference. Half-blood is referred to those who share a common parent and either the father or the mother might have remarried. In such a case, the father's biological child (born of the previous wife) has the first right over the property as against. In short, full blood is preferred to half-blood relations.

Crime

Even if one is a legal heir and is to inherit property, if he/she is found guilty of a murder or in abetting a murder, such a person would be disqualified from inheriting a property.

Conversion

Converts cannot be disqualified from ancestral or father's acquired property. But, as per Section 26 of the law, a convert’s descendants and the children born to such descendants are disqualified from inheriting the property of any of their Hindu relatives. However, the rule does not apply if they are Hindus at the time when the succession opens.

Disqualified heir

If a person is disqualified from inheriting the property, as per the law, it is considered as if the person had expired before the intestate. The father or the disqualified heir may not inherit his share but his son or class I heirs are entitled to their share in the property. Thus, distribution of property will take place among class I heirs in a Hindu Undivided Family per the rules stated.Note: The law states that “No person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity or save as provided in this Act, on any other ground whatsoever.” In the absence of any legal heir, such property is transferred to the government.

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PG - 18122019