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Things to keep in mind when inheriting a property written by Amit Sethi, published in Housing.com. November 5, 2019

There are several laws governing inheritance of property in India. We look at the applicability of these laws and the factors that property owners and their heirs need to be aware of

 

Passing on the assets of a person after his/her death, involves several critical issues, especially if it involves the inheritance of property. Therefore, it is important to understand the various inheritance laws, to avoid disputes.

 

What is inheritance of property?

 

"Inheritance of property, is the transfer or devolution of the various assets of an individual/ person that occurs on the death of such individual/ person. Such assets would devolve in favour of the legal heirs of the deceased or such other persons as may be entitled, based on the applicable laws. Inheritance of property by the legal heirs is also known as &lsquosuccession&rsquo and there are various laws that have been enacted that outline and determine the basis on which inheritance is decided," says Ameet Hariani, managing partner, Hariani & Co.

 

Inheritance laws in India

 

The inheritance laws to be considered, will be determined based on the facts and circumstances of a particular case. As a rule of thumb, the following laws pertaining to succession are to be considered:

 

  1. Indian Succession Act, 1925
  2. Hindu Succession Act, 1956
  3. Shariat Law

 

"As per the Hindu Succession Act of 1956, both, sons and daughters, have equal inheritance rights. The term Hindus here is inclusive of Sikhs, Buddhists and Jains. However, a Hindu married to a non-Hindu is exempted, based on the Special Marriages Act. The Act was amended in 2005, to award women with rights as coparceners on the ancestral property, after their marriage," explains Nabil Patel, director, DB Realty.

 

The Hindu Succession Act of 1956, not only identifies the legal heirs of the deceased who are entitled to the assets of the deceased but also specifies the quantum and how the assets of the deceased are distributed among the legal heirs.

 

The Muslim Personal Law (Shariat) Application Act, 1937 specifically enforced the applicability of Shariat law in case of succession amongst Muslims, largely being Shias or Sunnis.

 

Experts point out that in the case of Muslims, every family member has a fixed share in the property. The amount of share, depends on how many survivors are left and the relationship they had with the deceased. These rules vary for Sunni and Shia Muslims.

 

Transfer of property through inheritance or a will

 

While it is open to any of the legal heirs or any other person/s claiming to be entitled, to dispute a will or challenge the distribution of the assets of the deceased, one should bear in mind that litigation is a tedious, time-consuming and costly affair. Ideally, if a settlement can be reached between the family members/heirs, etc., the same should be effected by executing and, if required under law, registering the appropriate documents, to ensure no further dispute.

 

"The procedure for proving a will / enforcing a will / challenging a will, is prescribed under various laws including the Indian Succession Act, 1925, the Code of Civil Procedure, 1908 and various court rules. The same should be followed, to prevent unnecessary delay in administering the estate," suggests Hariani.

 

The most important aspect of any inheritance, is to get clarity on property ownership and its title. In the case of inheritance, the legal heir should get the property mutated and transferred in his/her name and get the new ownership registered through the relevant authorities. "If the ownership is executed through a will, the same needs to be submitted to the registrar and the mutation should be done, based on the will. Only a registered will is accepted. Hence, it is important for the owner of the property who prepares the will, to get the will registered," points out Samantak Das, chief economist and head of research and REIS, JLL India.

 

In order to gain ownership of a property, mere eligibility does not suffice. One must complete all the legal formalities and transfer the title, based on the nature of the property, the number of eligible heirs, their legal rights, etc. In other words, to get the ownership transferred, one must be able to submit proper proof of inheritance and claim over the property.