Woman, Widow & Will - A Real Life Story

 

A young widow with no children was forced to leave her in-law’s house after death of her husband. She stayed with her parents, got professional qualification, a good job and finally was able to purchase a flat in her own name and some investments where she stayed with her parents. A story, which can happen in any family. After her sudden death while she was around 50, her parents claimed the property and investment as legal heirs. Here comes the twist that the in-laws also claimed the same and the court citing the Hindu succession Act 1956 ruled in favour of in-laws and even SC upheld this decision and her parents who had struggled, brought up their daughter were left with no flat and no investment just because the daughter had failed to make a will making her parent’s as beneficiary. This real story shhok the core of my heart but I was helpless as the daughter never made a will out of ignorance and besides some personal help I could do nothing.

During my various interactive sessions and presentation on will and related issues I am often told that it not necessary for the wife to make a will and the arguments given are too many. She does not own anything, her property of share will always come to husband or the husband has paid money for her flat or share, etc, etc. But these arguments only show the ignorance and lack of knowledge of succession and inheritance act, rules and procedure. In some cases it also involves the transfer of property act and the Income Tax Act.

Writing a will is a very personal decision but those who do write a will normally only write for themselves and avoid or do not make a will for wife. A will ensures that the assets are transferred to the desired beneficiary easily, efficiently and at the least cost. A will is governed by the Hindu succession act 1925 in case there is a will and in case of no will by the Hindu succession act 1956. In case of marriage under Special Marriage Act 1954 it is governed by the Indian Succession Act 1925 which also applies to Christians. Muslims are governed by Shariat Act. Word Hindu includes Sikh, Jain and Buddhist.

In case of death of a woman/widow without a will, then her inherited as well as her self acquired property will be divided between sons, daughters and husband in equal proportion. In her case the act (section 14) does not distinguish between inherited and self acquired property. Further two sections (section 15 and 16) lay down the successor and the order of succession. In case of no issue of the widow or woman (whether biological or adopted) then the property (Immovable and movable) will go to the parent’s of husband in case of widow or to the legal heirs of husband. In no case her property whether inherited or self acquired property will go to her parent’s or their legal heirs unless there is a will and beneficiaries specified. If the property is inherited from her husband or in laws then it devolves in the absence of a will to her husband’s heirs.

A daughter stands to inherit an equal share in her father’s or mother’s inherited or self acquired property in case of no will by them like other siblings. In this case she can will this property as per her wish or execute a relinquishment deed to relinquish her claim on this property. But in the absence of any of these then the property in her death will revert back to her parent’s or their legal heir’s and not to her husband or his legal heirs in case there are no sons or daughters.

So it appears that making a will for the wife is equally as important if not less than her husband’s will and such wills are called mirror wills

Woman's Property Rights

 

A daughter stand to inherit an equal share as other siblings in her father or mother's property. In this case sheor her children are conidered as a copercaner in the ancestral property. A daughter has a right or can ask for maintenance or shelter in her parent's residence if she is widowed or divorced or dersrted. This is applcable only if the property has not been divided and she has not received her share.

She has absolute right over her property whether self acquired or inhertied and she can sell/ gift/dispers her porperty as she wishes through her will only. But in case of no will the Hindu sucession act 1925 will apply for inhertiance and succession and in case of Muslim the shariat act and for Christian the Indian succession act 1925. In cae of marriage under Special marriage act 1954 the Indian succession act will apply.

A daughter in law has no right over the property owned by her husband's parents whether ancestral or self acquired. She can acquire righs over such assets only through her husband's inhertitance/ share.

I case of death of husband of a muslim woman and if she is the only wife she will inhertied one fourth if there are no children and one eighth if there are children. If there are more tnah one wife then each wife inhertitance reduces to one eighth.

However in case of HUF there is a variation and she is eligible to shelter, support and maintenance from her husband and his family. In case of division of property between her husband and her children, she also gets equal share as her husband and her children. In case of husband's death she is ehtitled to an equal share of husband's assets divided between her, her children and his mother

Gifting Immovable Property to Children

 

Recently in Chandigarh and earlier in Delhi & NCR there have been a number of cases were the parents gifted their hard earned only property to their children only to face haassment, mental torture, deprivation and in some cases getting thrown out of their own house. Sad and pathetic but true in some cases.

The gifting of immovale property which a person has made using his hard earned money to his/her children is an issue which depends on a host of factors, therfore, it is difficult to lay down a guideline but some general ways can be suggested to safeguard one's future. If the children need money due to any reason then by all means help them but within yor capability and without compromising your well being and do not expect any return or somre favor in return. A will can be changed any number of times but a gift is irrevocable and once made and accepted can not be changed, amended or revoked.

As a general rule do not gift your only hard earned property to your children but give it to them under a will which will be exceuted after your death. If you need money then one can always opt for reverse mortagae offered by banks to raise money for your comfort, well being and requirements. The bank wil give option to your children after your death whether they wish to get the property back after payment of mortagae loan or bank can sell it to recover dues.

If due to any reason whatsoever one has to gift his only property to his children then make sure that in the gift deed a clause is introdued that the deed will be null and void if the parents are ill treated, suffer harasment or deprivation at the hands of the peson to whom thy have gifted the property. This clause will help the tribunal headed by DM to revoke the gift deed and the property will revert back to parents and in some cases the children and their family have been ordered to leave thir parent's house. In other case if one is facing financial difficulty the recourse can be taken of Senior Citizen Protection act under which the DM can order the payment of montly allowance to the parents from their children or legal heirs and will make them responsile for their well being, medical needs, etc

Daughter's Claim on Ancestral property

 

The Hindu Succession act 1956 which is part of the coded Hindu act is perhaps one of the most comprehensive and progressive act. It is constantly being improved to meet new challenges and changing scenario.

In 2005 it was amended and daughters were given equal rights in the propety the same as for sons. Later Supeme Court in a judgement made this application backdated to be read from 1956 onwards. As compared to Hindu law the muslim law grants the dauhter only half of the share that a son will get and the wife gets only one sixth share.

But there is a small rider to this amendement in section 6 with a cut off date, which is normally missed by most and in a recent three judge bench the Supreme Court clarified it again by reiterating it. It simply means that if the ancestral property was sold, morgaged or donated on or before 20 Dec 2004 then the daughter or her children can not raise a complaint regarding their share. After 20 Dec 2004 the daughter or her children have a right to share in the ancestral property as much as son.

Ancestral property contains property brelonging to three generations of father, grandfater and great grandfather but it does not contain the property earned by the father and there he has a right to dispose it through a will as he wishes and in the absence of a will as per the Hindu succession Act 1956. Hindu definition includes Sikh, Jain and Buddhist also.

TDS on Joint Property

 

In a recent judgement by ITAT bench Jodhur, which applies to all joint properties and relates to the deuction of 1% of the sale consideration or market value which ever is higher as TDS and deposited with the IT department by the buyer ,if the sale consideration is 50 lacs or more. The bench held that in case of joint property if each individual gets less than 50 lacs then the TDS section does not apply and. TDS is not to be deducted by the buyer and deposited.

This is a very good observation and decision by the ITAT bench and will be of immense help to individuals where either buyer are more than one or sellers are more than one as is normally in case of joint or ancestral properties.

 

 

 

 

Precautions Hydrogen Sufide Leaks from Indutrial Drains

The incident in Ludhiana where at present 11 people ae dead and many more are hospitalized due to Hydrogen Sulphide (H2S) poisoning which came out of the indutrial sewer drain should be an eye openers for us, especially for our sector of 21 and 25 in Jal Vayu Vihar, Noida. The industrial drain runs right next to our boudary wall of both sectors, which is being covered now.

Hydrogen Sulphde is a colorless, heavier than air, smells of rotten eggs, extemely toxic and flamable gas. As per report all the persons in Ludhiana within 50 meters of gas leak just coolapsed and died meaning the ppm level (parts per million) in the air of that area upto at least 50 meters from leak point was aboove 1000 ppm. 1% of the gas will amount to 10,000 ppm. If the concentration is 1 ppm then one can detect with smell , at 10 eye irritation starts, at 27 strong unpleasenrt odor. at 100 coughing, eye irritation start and loss of smell within 2 to 15 minutes, at 500 loss of consciouness , above 700 death may occur within 3 to 5 minutes and above 1500 ppm immediate death.

This gas effects one's olfactory nerves, lungs, eyes and brain. The immediate response in the affected area should be to put on the escape mask as normal mask will be of little help. Hold your breath and move upwind if release is downwind or move crosswind if release is upwind. and try to get away from the area. As it is heavier than air then climbing to a higher height in a high rise building may help. Do not try to help other but instead get away from the affected area and call emergency response. Exposure of 100 ppm are to be considerd as immediately dangerous to life and death. 100 pppm if converted to percentage will amount to0.0001% by volume.

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