Examining A Muslim Woman’s Right To Property

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muslim-women

Article 14 of the Indian Constitution mandates equality among all its citizens. With the interesting interplay of socio-legal forces, Hindus, Muslims and Christians in India are governed by their respective personal laws – which includes property rights as well. As Muslims in the country do not have codified property rights, broadly speaking, there are governed by either of the two schools under the Muslim law – the Hanafi and the Shia. In India, a large number of Muslims are Hanafis or Sunnis. While the Hanafi school recognises only those relatives as heirs whose relation to the deceased is through a male. This includes son’s daughter, son’s son and father’s mother. The Shia school, on the other hand, favours no such discrimination. This means that heirs, who are related to the deceased through a female are also accepted.

A few general rules of inheritance for women are:

The daughter

Under the Muslim law, the laws of inheritance are rather strict. In keeping with its ideology that a woman is half the worth of a man, a son takes double the share of a daughter. But the daughter is the absolute owner of whatever property she inherits. If there is no brother, she gets half a share. It is legally hers to manage, control, and to dispose off according to her wishes.

She is eligible to receive gifts from even from those she would inherit from. This is contradictory because she can inherit only one-third of the man’s share but can get gifts without any hassle.

Till a daughter is not married, she enjoys the right to stay in her parents’ house and seek maintenance. In case of a divorce, charge for maintenance reverts to her parental family after the iddat period (approximately three months) is over. But, if her children are in a position to support her, the responsibility falls on them.

The wife

In the famous Shah Bano case, the Supreme Court had held that in case of a divorce, it is the responsibility of the husband to make reasonable and fair provision to maintain his former wife even after separation under Section 3 (1Ha) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. This period extends beyond iddat as the woman retains control over her goods and properties.

In the event of the death of her husband, a widow gets the one-eighth share (when there are children) but will get one-fourth share (if there are no children). If there is more than one wife, the share may diminish to one-sixteenth.

The mother

A Muslim mother is entitled to inheritance from her children, if they are independent. She is eligible to inherit one-sixth of her dead child’s property if her son is a father as well. In the absence of grandchildren, she would get the one-third share.

What more?

There are other provisions, too, in the law which ensure financial security of a Muslim woman.

 The maher (entitlement)

This is the total money or property that a wife is entitled to get from her husband at the time of marriage. There are two types of maher: prompt and deferred. In the former case, the amount is given to the wife immediately after marriage; in the later, the amount is given to the wife when her marriage has ended, either upon the death of her husband or by divorce.

The wasiyat (will)

A Muslim cannot give away more than one third of his/her total property through a will. In circumstances where there are no heirs in the estate as prescribed by law, the wife may inherit a greater amount by will.

The hiba (gift)

Under the Muslim law, any type of property may be given as a gift. For a gift to be valid, a declaration of the wish to make the gift must be made which should be accepted by the receiver.

Property Registration transactions in Indian Law

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Property Registration transactions in Indian Law

The law of registration of documents is contained in the Indian Registration Act. This legislation provides for the registration of various documents, to ensure conservation of evidence, prevention of fraud and assurance of title.

Documents of property requiring mandatory registration

As per Section 17 of the Registration Act, 1908, all transactions that involve the sale of an immovable property for a value exceeding Rs 100, should be registered. This effectively means that all the transactions of sale of immovable property have to be registered, as no immovable property can be purchased for merely Rs 100. Additionally, all transactions of gift of an immovable property, as well as lease for a period exceeding 12 months, are also mandatorily required to be registered.

In special cases, when a party to the transaction cannot come to the sub-registrar’s office, the sub-registrar may depute any of its officers to accept the documents for registration, at the residence of such person. The term ‘immovable property’ includes land, buildings and any rights attached to these properties.

See also: Stamp Duty and Registration Charges Income Tax Exemption

Procedure and documents required

The property documents that need to be registered, should be submitted to the office of the Sub-Registrar of Assurances within whose jurisdiction the property, which is the subject matter of transfer, is situated. The authorised signatories for the seller and the purchaser, have to be present along with two witnesses, for registration of the documents.

The signatories should carry their proof of identity. The documents that are accepted for this purpose, include Aadhaar Card, PAN Card, or any other proof of identity issued by a government authority. The signatories also have to furnish the power of authority, if they are representing someone else.  In case a company is party to the agreement, the person representing the company has to carry adequate documents, like power of attorney/letter of authority, along with a copy of the resolution of the company’s board, authorising him to carry out the registration.

You need to present the property card to the sub-registrar, along with the original documents and proof of payment of stamp duty. Before registering the documents, the sub-registrar will verify whether adequate stamp duty has been paid for the property, as per the stamp duty ready reckoner. In case there is any deficit in the stamp duty, the registrar will refuse to register the documents.

Time limit and fee payable

Documents that have to be mandatorily registered, should be presented within four months from the date of their execution, along with the requisite fee. In case the time limit has expired, you can make an application to the sub-registrar for condonation of the delay, within the next four months and the registrar may agree to register such documents, on payment of a fine that may be up to ten times the original registration fee. The registration fee for property documents is 1% of the value of the property, subject to a maximum of Rs 30,000.

Earlier, the documents that were presented for registration, would be returned to you after a period of six months. However, with computerisation of the offices of the sub-registrar, the documents (bearing the registration number and proof that the documents have been registered by the registrar) are scanned and returned to you on the same day.

Impact of non-registration

Failure to register the purchase agreement of a property, could put you at a huge risk. Any document that is mandatorily required to be registered but is not registered, cannot be admitted as evidence in any court of law.

Completion of Construction and its Importance Under Income Tax Laws

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Completion of Construction and its Importance Under Income Tax Laws
Completion of Construction and its Importance Under Income Tax Laws

There are a number of income tax provisions, which link the benefits with the time taken to complete the construction of one’s property.

Deductions pertaining to repayment of the principal component of a housing loan

Section 80C provides tax benefits on the repayment of a home loan’s principal component, up to Rs 1.50 lakhs. In case of an under-construction property or for self-construction of a property, your EMIs do not start till the entire loan amount is disbursed and this generally coincides with the completion of construction. In case of any inordinate delay in construction, your EMI may start even before completion of the construction. In such a situation, you will not be able to claim tax benefits on principal repayments, as the same is allowable only in respect of a property, income from which is taxable under the head ‘income from house property’. Unless the property is completed and its possession taken, the same cannot become taxable. Therefore, in case of such delays, you lose the benefit available on repayment of the principal amount of the loan, before taking the possession.

Deductions pertaining to interest paid on loan taken for construction of a house property

Section 24 of the Income Tax Act provides deductions, with respect to the interest paid on money borrowed for the purchase, construction, repairs, renovation or reconstruction of a house. Unlike Section 80C, Section 24 allows you to claim tax benefits on the interest paid during the period before you took possession (referred to as pre-EMI interest), in five equal instalments beginning from the year of completion of construction. Consequently, if there are delays in completion of construction, your right to claim the interest paid on the loan will also be delayed.

Moreover, the period taken for completion of the construction, will also determine the amount which you can claim for interest, in case the house is self-occupied. If construction is completed within five years from the end of the financial year in which the money was borrowed, you can claim interest up to Rs 2 lakhs. However, in case the delay exceeds five years, your entitlement gets curtailed to Rs 30,000 in a year.

This amount of interest entitlement is for the current year’s interest, as well as for amortised portion of the pre-EMI interest, taken together. It may be noted that for a let-out property, you can claim full interest benefit, even if construction is delayed.

See also: 

Importance, for claiming exemption on capital gains

Section 54 and 54F provide for exemption from long-term capital gains tax, if the gains are invested in a new house that is constructed within three years. However, in the case of Kishore H Galaiya Vs ITO, decided in 2012, the Mumbai tribunal held that even if a substantial amount is invested/spent for construction of the house and even though construction is not completed in three years, the exemption under Section 54 and 54F would be available. However, in case of delay in completion of construction, the income tax officer may take a different view and you may have to file an appeal with a higher authority, to claim the exemption. Hence, it is always advisable to ensure that the construction is completed within three years, to avoid any litigation.

GST Notification Doesn’t End Govt’s Power To Levy Excise

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gst

After a hectic day of parleys and opinion from the attorney general, the government feels it retains power to levy excise duty on goods other than petroleum even after the provision of the Constitution amendment law was notified on September 16.

A top government source told ET that transitional amendment in the Constitution (122nd Amendment) (GST) Act, 2014, to roll out the goods and services tax (GST) would tax (GST) would provide cover to the government till the time this reform is implemented.

“We have had discussion with AG and he opined that there is no problem with the notification,” the official said citing Section 19 of the amendment.

This provision says: “Notwithstanding anything in this Act, any provision of any law relating to tax on goods or services or on both in force in any state immediately before the commencement of this Act, which is inconsistent with the provisions of the Constitution as amended by this Act, shall continue to be in force until amended or repealed by a competent legislature or other competent authority or until expiration of one year from such commencement, whichever is earlier.”

The official said there are some constituents that need to be seen in the notification.

Firstly, the Section 19 says tax on goods and services to be tax ed in any `state’, which refers to geographic entity of state and not by states. Secondly, withdrawal of power to levy tax lies with the competent authority and not the state legislature.

This protects the power to impose central levy during the transitional period of one year.

Revenue secretary Hasmukh Adhia tweeted: “The department of Revenue examined the validity and implications of notfns dated 10th and 16th Sept wrt existing taxes imposed by the Union and states. “There is no legal infirmity in these notifications. Law dept has confirmed that there appears to be no legal requirement to issue any further clarification or notification in this regard.”

ET had reported on Monday that massive confusion had arisen after the Centre notified certain provisions in the constitution amendment law for GST with effect from September 16.

The notification said the government will not levy excise on goods other than petroleum products from this date, implying loss of power to tax other goods.The notification also binds states to accept GST within a year or they will lose power to tax.

The Constitution (122nd Amendment) (GST) Act, 2014, passed by Parliament last month to roll out GST, has made changes in Entry 84 of List 1 or the Union List of the 7th Schedule of the Constitution.

Essentially, the amended list provides that excise duty can be levied only on petroleum and its products and tobacco and tobacco products, thereby limiting Central Excise Act’s scope to these specified products.

Experts felt through this notification the government had surrendered power to levy excise except in goods mentioned.

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