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The short answer
It depends on the personal law that applied to the person who died. For Hindus, the Hindu Succession Act, 1956 sets out the heirs, and since 2005 daughters have the same rights in ancestral property as sons. Division can be agreed in a registered family settlement or partition deed, or decided by a court in a partition suit.
Which law applies
- Hindus, including Buddhists, Jains and Sikhs: the Hindu Succession Act, 1956.
- Muslims: Muslim personal law, applied under the Muslim Personal Law (Shariat) Application Act, 1937.
- Christians, Parsis and others: the Indian Succession Act, 1925, which has separate rules for Parsis.
Special rules can apply in some situations, for example where a marriage was solemnised under the Special Marriage Act, 1954. The rest of this guide describes the Hindu Succession Act.
When a Hindu man dies without a will
His property goes first to his Class I heirs (Section 8), who include his widow, sons, daughters and mother, and the children of a son or daughter who died before him. They take together, to the exclusion of other relatives. Under Section 10, the widow (or all widows together) takes one share, each surviving son and daughter and the mother take one share each, and the heirs of a predeceased son or daughter share the portion that parent would have taken.
For example, if a man leaves his widow, two sons, a daughter and his mother, each of the five takes one-fifth. Only if there are no Class I heirs does the property go to Class II heirs, and then to more distant relatives.
When a Hindu woman dies without a will
Under Section 15, her property goes first to her sons and daughters (including the children of a predeceased child) and her husband, then to her husband's heirs, then to her parents. Special rules apply to property she inherited from her parents or from her husband or father-in-law, if she leaves no children.
Ancestral property and daughters' rights since 2005
The Hindu Succession (Amendment) Act, 2005, in force from 9 September 2005, made a daughter a coparcener by birth in a joint Hindu family governed by Mitakshara law, with the same rights and liabilities as a son. In Vineeta Sharma v. Rakesh Sharma (2020), the Supreme Court held that this right does not depend on the father being alive on that date. Partitions completed before 20 December 2004 by a registered deed or a court decree are not reopened.
How the property is actually divided
By agreement
The heirs can divide the property by a family settlement or partition deed signed by all the sharers. A document that itself divides immovable property generally needs to be stamped and registered; how an earlier oral family arrangement can be recorded is a question to check on the facts.
By a partition suit
If the sharers cannot agree, any of them can file a partition suit in the civil court. The court first passes a preliminary decree declaring the shares, and then a final decree dividing the property, usually after a commissioner proposes the division. Where division is not practicable, the court can order a sale under the Partition Act, 1893.
After division
Each sharer should apply for mutation so that the Record of Rights shows the new holdings.
Related steps are covered separately: the legal heir certificate, daughters' property rights, family settlement deeds and partition by deed or suit. For Muslim and Christian families, see Muslim and Christian inheritance in Odisha.
Papers that are usually needed
- Death certificate and a family tree showing all the heirs
- Title deeds and Records of Rights for each property
- Details of bank accounts, deposits and investments. A nominee generally receives these on behalf of the legal heirs; a succession certificate under Section 372 of the Indian Succession Act, 1925 may be needed for debts and securities.
Frequently asked questions
Does a married daughter have a share in her father's property?
Yes. Under the Hindu Succession Act, a daughter is a Class I heir whether or not she is married, and since 2005 she is a coparcener in ancestral (coparcenary) property in the same way as a son.
Can one heir sell the whole property?
No. Before partition, an heir can deal only with their own undivided share. A buyer of an undivided share may have to seek partition to obtain a specific portion.
Does a family settlement need to be registered?
A document that itself divides immovable property generally needs to be stamped and registered. A memorandum recording an arrangement already made is treated differently, so the wording and the facts matter.
Is the nominee of a bank account its owner?
Generally not. Courts have held that a nominee usually receives the money on behalf of the legal heirs, who are entitled to it under the applicable succession law.
Official sources
- Hindu Succession Act, 1956 (India Code)
- Indian Succession Act, 1925 (India Code)
- Supreme Court of India: judgments
- Bhulekh, Government of Odisha (land records)
General information, not legal advice. Every matter turns on its own facts and documents, and the law and official procedures change. Check the current position with the concerned office, or take advice on your own facts, before acting.