Transfer of property after mother’s death in India? (For NRIs)

Introduction

On the demise of a person, his/her assets are distributed between the persons as stated in the will. Though, in case a person dies deprived of a will (he dies intestate), in such cases, the assets would be distributed conferring to the law based on his/her religion. In an unfortunate event like this, we’ll try to simplify the legalities behind the transfer of property after mother’s death.

Transfer of property after mother's death
Introduction – Transfer of property after mother’s death

The succession of Hindu, Jain, Buddhist, and Sikh is ruled by the Hindu Succession Act. Muslim succession is administered by the Muslim Law and Christians are headed by the Indian Succession Act.

The word inheritance is exclusively used in the context of succession. Upon the demise of an individual, the property, title, debts, and obligations might devolve upon the heir. However, diverse societies treat inheritance differently like tangible and immovable property are usually treated as an inheritance.

In this article, we will determine the manner of distribution of assets in case of demise of Hindu/Jain/Sikh/Buddhist females i.e., those women who are administered by the Hindu Succession Act and have died intestate or without a will. Also, a light will be given briefly for Islamic women dying intestate which is governed by the Muslim Law.

Transfer of Property after Mother’s Death

Section 15 and 16 of the Hindu Succession Act only operates the transfer and distribution of property for Hindu females whose demise after the Act came into establishment. Although after the Act was amended in 2005, the inheritance rights of females as that of males came into existence. Having said that, there are various aspects under the distribution of property that are present in a differing manner for Hindu males and females. 

Transfer of property after mother’s death

It should be noted that a female is an absolute owner of her property when she herself has acquired it or even in a situation when she has inherited it. Before, during, or after her marriage, the inherited property (movable or immovable) will be deemed as ‘Stridhan’. 

The distribution of the property of a deceased married female Intestate (dying without a will), will first go to husband, children, and grandchildren (only when children are not alive). If an unmarried female dies Intestate, then the right of her property will fall on her parents.  

If the above-mentioned people are not present, then the family members who are preferred first had the female been alive will bear the rights of the property, unlike the male inheritance rules in which there was a demarcation on the basis of the class.

Furthermore, there is a different manner in which the assets are acquired based on how the female inherited the property in the first place. The following chart will clearly show different ways in which the property is acquired and which members will get it in the order of preference. 

ORDER OF PREFERENCESELF- ACQUIRED PROPERTY FOR MARRIED FEMALESELF-ACQUIRED PROPERTY FORUNMARRIEDFEMALEINHERITED FROM PARENTSINHERITED FROM FATHER-IN LAW/ HUSBAND
Preference 1Children and Grandchildren (only if children are dead)HusbandParents(Equal Division)Children and Grandchildren (only if children are dead)Heirs of Husband and Grandchildren (only if children are dead)
Preference 2Heir of HusbandHeirs of FatherHeirs of Father
Preference 3ParentsHeir of Mother
Preference 4Heirs of Father
Preference 5Heirs of Mother
Different types of inheritance difference

1. Self-Acquired Property for a Married Female:

From the above chart, it is clear that the first right to bear the property lies with the husband and the children and if the children are predeceased then their sons and daughters i.e., grandchildren. The next in line who have the right over the property only if the above mentioned are dead are the parents and the heirs of father and then heirs of mother.

2. Self-Acquired Property for Unmarried Female:

Under this, the rightful owner will directly be the parents of the deceased female. If the parents are not alive then, firstly the right is given to the heirs of the father and then if they are not available, to the heirs of the mother.

3. Property Inherited from Parents:

Here, if the children (children of predeceased children) and husband are not alive then the property will be distributed among the heirs of the father and not the heirs of the husband because the deceased female inherited it from her parents.

4. Property Inherited from Father-in Law/Husband:

In this, the property shall be distributed only to the heirs of the husband and if the husband and children are not available, then it will not be acquired by the parents of the female even if they belong to the hierarchy.

Inheritance of mother’s property – Explained

Inheritance of a Male on Deceased Wife’s Property

Throughout the wife’s lifetime, the husband has no right over her assets. If the wife dies, her share will be entrusted to her husband and children alike. If a male has bought the property in the name of his wife with his own funds, he can recollect the ownership even after her death.

Inheritance of Daughters as per Hindu Succession Act

The amendment of The Hindu Succession Act in 2005, it provided equal rights to the daughter in terms of assets. Before 2005, sons possessed rights over the deceased father’s property but daughters could do so only till she was unmarried.

It was implied that post-marriage, a woman attributes herself to the husband’s family and consequently has a right in that Hindu Undivided Family (HUF) where she is married. Today, married and unmarried daughters have the equal rights to their father’s property as their brothers. They are also eligible for equal duties, obligations as their brothers.

It was also ruled in 2005 that a daughter has the equivalent rights provided that both father and daughter were alive on September 9, 2005 (date of the amendment of the Hindu Succession Act).

Also, by 2018, the SC stated that a daughter can inherit her dead father’s property even if the father was alive on this date or not. After this judgment, women were also acknowledged as coparceners and can demand a portion in the father’s property.

Documents required to inherit mother's property after death
Documents required to inherit mother’s property after death

Special regulations for Females governed by Matrilineal System

A matriline or a mother line is a line of descent from a female ancestor to a descendant which can be of either sex, in which the persons in all intervening generations are mothers. In a matrilineal descent arrangement, an individual is measured to belong to the same descent group as their mother. Though, the Hindu Succession Act smears to all Hindus, Section 17 of the Act makes some exclusions for these practices.

Therefore, when a woman who adheres to the matrilineal customs and has died intestate, her assets would first transfer upon the children and the mother and not the children as well as the husband. If they are not alive, then it would fall upon father and husband in the same category. In this system, heirs of mother advance precedence over the heirs of husband which is generally inverted in the case of other Hindus.

Transfer of Property after Mother’s Death in Islam:

In Muslim Law, distribution of property can be done in 2 ways –

  1. The per capita distribution process is majorly used in the Sunni law. According this way, the property left over by the ancestors gets equally distributed between the heirs. Consequently, the share of each person rests on the number of heirs.
  2. The per strip distribution process is adopted in the Shia law. According to this process of property inheritance, the estate gets distributed among the heirs according to the strip they belong to. Therefore, the share of their inheritance also rely upon the branch and the number of persons that belong to the branch.

Rights of Muslim Females

Muslim does not make any distinction between the rights of men and women. On the demise of their ancestor, nothing can stop both girl and boy child to become the legal heirs of inheritable property.

Though, it is generally found that the share of a female heir is partial to that of the male heirs. The cause behind this is that under the Muslim law, a female shall upon marriage collect mehr and maintenance from her husband whereas males will have only the estate of the ancestors for inheritance. Correspondingly, males have the obligation of maintaining their wife and children.

FAQ’s on Transfer of Property after Mother’s Death

How to transfer property from mother to son after the death of the mother?

Apply for the death certificate, family survival certificate, and legal heir certificate. Get in touch with a lawyer to help you draft the required certificate.

Who has rights to mother’s property after her death?

If a mother dies without a will, according to Hindu Law, her children, children of predeceased children, and her husband have an equivalent right to the property. In their absence, the property is acquired by other heirs as per the order of preference.

Can a son entitle his mother’s property?

A son has no legal right in the self-acquired estate of his parents unless he has evidence of contribution towards the acquisition of the property. He may be allowed to utilize the property on permission from his parents, but they are not obligated to permit him to live there.

Can a mother give all his property to one child?

The mother is the sole owner of the property and can distribute the property as per her wish. After her death, the will can be challenged if she executes in favor of one child alone. But if there is no will then the Hindu Succession Laws will follow as mentioned in the above chart also.

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