Legal Guide

Transfer of Property After Death without Will in India

by Nikky Jha · 3 min read

transfer of property after death without will in India

The Hindu Succession Act of 1956 codifies succession laws. Following a person’s death, the legal process of Succession and inheritance takes place. It also provides for the transfer of property after death without a will in India. In the context of inheritance and the general division of succession rules, the two situations are as follows:

  • Succession by Testament – In this category, Succession is controlled by a testament or will. According to Hindu law, a person has the right to devise their property for their benefit. The relevant property then passes according to the decedent’s will.
  • Intestate Succession – It is the transfer of property after death without a will in India. In contrast, in intestate Succession, the property in issue will be divided among the heirs in accordance with the laws of inheritance when there is no will left behind after a person’s passing.

The two sorts of properties that are governed by the succession rules are self-acquired properties and ancestral properties. Corporate entities with independent legal entities have the property of perpetual Succession and are thus subject to different rules governing closure, reorganization, and dissolution. 

The Hindu Succession Act is applicable to anybody who identifies as a Hindu, but because of its patriarchal orientation, it has long been criticized for failing to address the needs of the nation’s women. Section 6 of the legislation, which allowed for the devolution of the coparcenary property under intestate Succession, was the clause that caused the greatest disputes. Transfer of property after death without a will in India is an important aspect of this act. 

Why women weren’t granted equal rights to their fathers’ property was a point of discussion. The legislation was changed in 2005 to grant girls the same rights as sons in the assets owned by their fathers.

Testamentary Succession

The Preamble to the Act claims that it refers to intestate Succession, although it also includes a section on testamentary Succession. A Hindu who has an undivided stake in the joint family has been given authority as a result. That was against ancient Hindu law. Drafting a will is necessary for testamentary Succession.

It combined a person’s interest upon death with the interests of the other joint family members covered under the rule of survivorship. When a Hindu man passes away intestate, Sections 6 and 8 will apply; nevertheless, when a Hindu woman passes away intestate, Sections 15 and 16 will be invoked. This is as opposed to the transfer of property after death without a will in India. For testamentary Succession, it is necessary to register a will.

Intestate Succession – Transfer of Property After Death Without Will in India

Intestate Succession is the legal name for the Succession of a person who passes away without leaving a legally binding will, i.e, transfer of property after death without a will in India. It is the transfer of property after death without a will in India. The principles of asset distribution, in this case, are determined by the personal laws that applied to the dead.

The remaining property will pass according to the rules of transfer of property after death without a will in India in cases where a person creates a will for all of the property but leaves out some of it or in cases where the will is invalid for whatever reason, in the case of transfer of property after death without a will in India.

Hindu Succession Act 1956 codifies the transfer of property after death without a will in India for Hindus. In this instance, the deceased’s property was distributed in accordance with the following principles:

  1. Male Members – 1. There are four categories of legal heirs for male members in cases of transfer of property after death without a will in India. If someone from Class 1 is accessible, the property will only pass to the legal heirs named in this class.
    1. Class, I – Wife, son or daughter, mother, son or daughter of a predeceased son or daughter, widow of the predeceased son, and a few more close relatives are included in Class I. 

The widow, mother, and each kid would receive an equal piece of the property. If any of the children have already died away, the spouse and remaining children will each get a portion of the estate.

As an illustration, suppose A passed away and left behind B, his wife; C, his mother. D, his eldest son. F, his youngest son, and G, his daughter. A few years ago, E, his middle son, passed away, leaving behind his wife, E-1, and two children, E-2 and E-3. 

Each legitimate successor would receive one of the six pieces that would be split up between them. The dead E’s wife and children would each receive one half.

  1. Class II – Only if there is no living relative in Class I will the legal heirs listed in Class II get the dead person’s estate. The relatives in Class II have been arranged in order, and it is expected that the first mentioned relative on the list will get all of the available funds before the next.

If the first designated relative is not present, the second person will inherit the property, and so on. In this order, the father is mentioned first, followed by the siblings, and so on. 

As a result, the father will receive the entirety of the inheritance if there is no family in class I and he is alive. The dead person’s siblings and sisters will receive the entirety of the inheritance if the father is not present.

  1. Class III and IV – These are Cognates and Agnates (relationships based solely on males) (relations not wholly through males). If neither class II nor any other heirs exist, then the Succession will go to the deceased person’s agnates or, if they fail, cognates. 

The estate will pass to the government if there are no Agnates and Cognates as well. The one with the closest link is favored among the Agnates and, therefore, in cognates.

  1. Female Members – Female members in cases of transfer of property after death without a will in India are as follows – 
    1. Class I – Husband, sons, and daughters, as well as offspring of a predeceased son or daughter, are comparable relations to those stated for male members. If no one is found, the estate will go to the husband’s heirs. 

If the husband has no living heirs, it will pass to the dead person’s mother and father if they are still alive. Regarding property that a female Hindu inherits from her father or mother, there is one specific rule. In the event that she does not leave behind a son or daughter, such property would fall back to her father’s legal heirs.

The legislation also states that if two persons pass away simultaneously, such as in a vehicle or aircraft accident, and it is impossible to determine exactly when each person passed away, it will be assumed that the elderly person passed away first unless the opposite can be demonstrated. This is a scenario where the transfer of property after death without a will in India is concerned. 

Additionally, a murderer of another person cannot inherit their victim’s property, another case that concerns the transfer of property after death without a will in India. It will be assumed that a murderer of this nature passed away just before the murder victim did, although his heirs are not excluded. These clauses are crucial because they have an impact on the property partition ratio and the line of Succession. This is in the scenario of the transfer of property after death without a will in India. 

Relevant Judgement 

Vineeta Sharma v. Rakesh Sharma, (2020) AIR 3717 (SC)

  • Facts 
    • The daughters did not have an equal claim to the father’s coparcenary property prior to the 2005 modification. However, this privilege was granted to the daughters by the November 9, 2005, amendment. 
    • However, there were concerns raised about whether it was necessary for the father to still be alive on the day of the modification or not. The following instances dealt with this issue.
    • The bench in the Prakash v. Phuvati case was made up of Justice Anil Dave and Justice A.K. Goyal. In this instance, it was stated that the property would only pass to an alive coparcener’s daughter. Therefore, in the event that the property is transferred to the daughter, the father must still be alive.
    • Justice A.K. Sikri and Justice Ashok Bhushan served on the bench in the case of Danamma vs. Amar. In this instance, it was declared that the property would still transfer to the daughter according to the 2005 amendment, even if the father died in 2001.
    • Given the contradicting nature of the aforementioned, it was impossible to decide which judgment should be applied. With the help of the Vineeta Sharma v. Rakesh Sharma case, this misunderstanding was made clear.
    • The judgment, in this case, was made by a bench of three judges. Justice Arun Mishra presided over the bench, which also included Justices Abdul Nazeer and M.R. Shah.
  • Issues 
    • Does the father still have to be alive as of November 9, 2005?
    • Can a daughter who was born prior to the date assert equal rights and obligations in the coparcenary property?
  • Judgment 
    • The shared HUF property is an unhindered heritage, according to the Supreme Court, which took into account past rulings. An individual’s full right to divide this property is conferred upon them simply by virtue of their birth.
    • Additionally, it is argued that, in contrast to inherited property, self-acquired property is not an unhindered inheritance and that the death of the separate property’s owner hinders the right to ownership and division. 
    • Based on the aforementioned findings, the girl is born with the right to a portion of the family’s property.
    • Therefore, it makes no difference if the father is alive or deceased as of the day when the amendment is regarded to be in force. As a result, the Phulvati v. Prakash case was overturned.
    • The judgment further stated that the implications of section 6 are retroactive rather than prospective or retrospective. 
    • In essence, this meant that the girls would be granted an equal title to the land, regardless of what had happened in the past. Therefore, whether the daughter was born before or after November 9, 2005, is irrelevant.

Conclusion

It is unethical in today’s society to deny a woman her rights due to antiquated customs. There is no denying the contributions that women make to society and the planet. It would be unfair to deny her ownership of the coparcenary land in the case where the transfer of property after death without a will in India is concerned and vice versa.

Her right would be infringed upon. The SC’s courageous and admirable ruling asserts primacy over centuries-old customs. It’s important to remember that constitutional morality takes precedence over all other national customs. 

It’s past time for decisions like these to be considered natural rather than extraordinary since it is only normal for a woman to be given the legal title to the property from which her right derives by virtue of her birth, in the case where the transfer of property after death without a will in India is concerned and vice versa.

To know more about the procedure of intestate Succession, get online legal advice

The Hindu Succession Act of 1956 codifies succession laws. Following a person's death, the legal process of Succession and inheritance takes place. It also provides for the transfer of property after death without a will in India. In the context of inheritance and the general division of succession rules, to know more about the procedure of Succession, get online legal advice.

Nikky Jha

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