Legal Terminology in Property Possession Matters

Property is a piece of real estate that is owned legally by the owner. Usually, property passes from a generation to next generation and so on. Usually, property is acquired within a family, when it passes from one generation to the other. All these transferring activities are regulated under The Indian Succession Act, 1925, Transfer of Property Act 1882, and the Registration Act, 1908 and The Hindu Succession Act, 1956.

The various modes through which the property acquisitions take place are as follow:

Will – it’s a legal instrument which is done by a person while he or she is alive, but comes into effect only after his or her death.

Succession

This is the natural way of acquiring some property and it operates as per the rules prescribed under the Succession Act. Intestate succession is a by default or automatic succession in the absence of a Will. In this act, a person inherits the property from his parents.

The Hindu Succession Act, 1956, is passed by the Parliament of India in 1956 through which amendment is done to the unwilled or intestate succession among Hindus. The Act lays down a uniform system of inheritance. This act announced that any property acquired by a Hindu female whether before or after the commencement of this Act, is to be treated as her legal property and she is given full authority to deal with it as she likes.

In this succession Act, ‘Property’ includes all those properties acquired by a female Hindu by devise or inheritance, or at a partition, or by gift from any person, or in lieu of arrears of maintenance, or by her own skill, or by purchase or exertion, or in any other manner whatsoever, before or after her marriage, or in any other manner whatsoever, and also any such property held by her as Stridhana.

A child who is subsequently born alive, and was in the womb at the moment of the death of intestate has the same right to inherit to the property.

The Act was amended in 2005 by the Hindu Succession (Amendment) Act, 2005. Under the amended Section 6, in a Joint Hindu family governed by Mitakshara law, the daughter becomes a coparcener by birth in her own right in the same manner as a son, with the same rights and liabilities in the coparcenary property. This is distinct from intestate succession: coparcenary status arises by birth and does not depend on any death, whereas intestate succession determines how a person’s property devolves when they die without leaving a Will.

A common doubt was whether a daughter could claim coparcenary rights if her father had died before the 2005 amendment came into force on 9 September 2005. The Supreme Court settled this in Vineeta Sharma v. Rakesh Sharma (2020), holding that a daughter’s coparcenary right flows from her own birth and is retroactive: she is a coparcener regardless of whether her father was alive on 9 September 2005. The daughter is subject to the same liabilities as a son.

Gifts-

Transfers of property done through the execution of a gift deed by the owner in favor of another family member is called gift. People often end up owning real estate when the original owner has given that property to them in legal way.

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