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.
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.
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.
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.
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
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.
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