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Unmarried daughter is entitled to inherit her share of father’s property

If your sister is unmarried, she would be entitled, subject to the provisions of the Hindu Adoption and Maintenance Act, 1956

My grandfather had purchased a plot in my father’s name and built it for residential purposes. My father died in 2013, leaving behind the house and an unregistered Will. We are two brothers and one sister and my father has not given any share to my sister in his Will. I have two questions. First, do daughters have rights in such properties, especially ones that yield substantial rent? Second, can an unregistered Will be challenged? We live in Delhi.

—S.P. Sharma

I have assumed that your father was Hindu and accordingly the Hindu Succession Act, 1956 would apply to him. As per Section 30 of the Hindu Succession Act, 1956, a Hindu may dispose of by Will or other testamentary disposition, any property which is capable of being disposed of by him/her, in accordance with the provisions of the Indian Succession Act, 1925 or any other law for the time being in force applicable to Hindus.

I have also assumed that the house/property does not form part of any Hindu Undivided Family (HUF) property, and was in your father’s own name. In view of the provisions of the Hindu Succession Act, 1956 read with the provisions of the Indian Succession Act, 1925, he would be entitled to bequeath his right, title and interest in the house/property to you and your brother.

Accordingly, if your father made a valid Will, which has been duly executed in the presence of two witnesses, then the Will would be valid and you and your brother would be entitled to the property even though your sister has not been given a share.

While it is possible to contest a Will, the challenge is usually limited to grounds of execution/production of a subsequent Will and/or allegations of fraud, forgery, undue influence, coercion, lack of testamentary capacity and due execution.

Lastly, please note that if your sister is unmarried, (she would be considered to be a dependent of your father) and if she did not inherit any property/asset from your father’s estate, she would be entitled, subject to the provisions of the Hindu Adoption and Maintenance Act, 1956 to be maintained by the heirs of your father (that is, you and your brother, assuming that you are the only heirs).

Each of such legatees will have to bear the maintenance in proportion to the share inherited from your father’s estate.

My wife had inherited a house from her parents. We never lived in it and it was put to rent. She passed away last year without writing a Will. I have two children. I want that property to go to one of my children. Do I have the right to Will away that house? If not, how can I ensure that there is no family discord on account of it later on?

—Shankar Balchandani

I have assumed that your wife was Hindu and accordingly the Hindu Succession Act, 1956 would apply to her.

According to Section 15 read with Section 16 of the Hindu Succession Act (which deals with succession as well as the order of succession/manner of distribution amongst heirs), succession to a female Hindu dying intestate (that is, without making a Will)—including property inherited from her parents where she leaves surviving children (including the children of any pre-deceased son or daughter)—shall be as under:

(a) first, upon the sons and the daughters (including the children of any predeceased son or daughter) and the husband;

(b) second, upon the heirs of the husband;

(c) third, upon the mother and father;

(d) fourth, upon the heirs of the father; and; (e) last, upon the heirs of the mother.

Accordingly, on your wife’s demise, you and your two sons would each be entitled to a one-third share in her estate including the house (assuming that the three of you are the only heirs). Therefore, since the house would have already vested in you and your two children on the demise of your wife, it would not be possible for you to bequeath the house under your Will to one child exclusively.

However, it would be possible for you to bequeath your one-third share in the house (which you inherited from your wife) exclusively to one child.

Please ensure that your Will is executed in the manner set out in the Indian Succession Act, 1925. The Indian Succession Act, 1925 requires that the testator executes his Will in the presence of two witnesses competent to contract and such attesting witnesses must attest (that is, sign) the Will as attesting witnesses, in the testator’s presence and in the presence of each other, after they have seen the testator executing the Will.

Further, although not mandatory, you may consider registering your Will in the office of the Sub-Registrar of Assurances under the provisions of the Registration Act, 1908.

Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries

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