An Inheritance Guide: Understanding Fathers' Property Rights and Their Legal Implications

There are legal implications of creating a will, and it must also cater to the requirements as per the Indian Succession Act to be formally recognized as a will. When an individual passes away without making a will, the Law of intestate succession becomes applicable. This process differs from religion to religion and is governed by laws specific to the religion. Multiple such details are to be kept in mind regarding succession and inheritance. This blog is written to help you understand inheritance and frequently asked queries associated with one’s fathers' property rights!

What is Ancestral Property as per Law?

First things first, it is imperative to understand how our law defines ancestral property. The law defines ancestral property as one passed down through four generations of male lineage.

Is there any defined period by Law within which ancestral Property can be claimed?

As per Article 65 to Schedule I of the Limitation Act, the Law of Adverse Possession 1963's timeline for claiming ancestral Property is 12 years. Within 12 years, an individual may file a lawsuit for possession of immovable Property or any interest therein based on the title.

Can property be claimed after 12 years?

The time limit to claim immovable properties is 12 years, and they cannot be claimed after this timeline has crossed.

The Laws of Inheritance or Succession Laws

So, a fathers’ property rights are passed on to whom? To answer this question, we must cast a keen eye on the laws of inheritance (or succession laws) in India. 

A Testament or Will

The Indian Succession Act of 1925 defines will. It is a legal declaration by the rightful owner of a property to transfer the ownership of their immovable property. This is a unilateral document and comes into effect only after the death of the individual who made it. For a will to be valid, it must meet certain legal requirements, that are, it must be in writing and written by a person of sound mind. Also, it must be signed by the testator and two witnesses.

Laws of Intestate Succession

In an event where the deceased had not made any will, the laws based on their religious beliefs become applicable. In this case, the Law deserves the right to decide to whom the Property will be transferred.

Some acts that become valid as per religious groups in unwilled or testamentary succession include the Hindu Succession Act of 1956 (amended in 2005) and the Muslim Personal Law (Shariyat) Act of 1937.

Hindu Succession Act of 1956 | 2005

The Act is related to the inheritance and succession of Property. Any Hindu person by religion or any of its developments of formats of practice is also governed by this Act. This Act is also applicable to any individual who is Buddhist, Jain, or Sikh. It also caters to unwilled or testamentary succession. This Act defines the order of succession based on kinship and accordingly lists them as Class I heirs, Class II heirs, agnates and cognates.

In 2005, the Act was amended to remove gender-based discriminatory provisions. Where the female was a limited owner earlier, she has become the absolute owner. It made clear that by birth, both the daughter and son of a coparcener will become a coparcener in their own right.

The Muslim Personal Law, Shariyat Act of 1937

The Muslim Personal Law is unique and drawn from the holy Quran. This Law states that in the event of an unwilled death of a Muslim father, this Act becomes applicable. This Act extends to all Indian states except Jammu and Kashmir. In cases where both the parties involved are Muslims, then the Muslim Law is used. It follows a categoric classification of heirs that includes sharers (those entitled to certain shares in the deceased's Property), residuary and distant kindred.

Property Claim for Natural and Adopted Children

Under the Hindu Succession Act, both daughter and son have equal rights over their father's property, which will be shared with their mother and grandmother. A posthumously born child, if born alive, also has the right to their father's property. For legally adopted children, the same rights as a natural child are applicable.

Property Claim for Children who are NRIs  

A Non-Resident Indian (NRI) or Overseas Citizen of India (OCI) can inherit any immovable property in India. This Law lets them inherit properties that they may otherwise not purchase! NRIs or OCIs can inherit immovable properties by way of will or by intestate succession. Also, in very few cases, certain immovable properties may be presented as gifts to an NRI. If, at all, the NRI who is inheriting the Property cannot travel to India for legal procedures, they have the right to give their Power of Attorney to their siblings to carry out the legal formalities on their behalf.

What taxes are applicable on NRI-owned immovable properties in India?  

When a property is inherited by an NRI or OCI, no taxes are payable. If an NRI chooses to keep their inherited immovable Property as is, no tax shall be payable. If the Property is rented out, then taxes are applicable on the same. The Income Tax Act comes into play here.

Conclusion

Ultimately, who gets their fathers’ property rights is determined through the Indian Succession Act of 1925. For males, it is therefore advisable to seek legal advice and help to create a valid will. In the event of an unwilled death, the Hindu Succession Act and Shariyat Act become applicable. Being aware of the same can help one navigate through succession-related procedures calmly.