This article has been written by Ms. Gargi Lad, a 3rd year student of NMIMS School of Law, Bangalore.

INTRODUCTION

Inheritance is the process of giving a rightful heir the ownership and interest in a deceased person’s possessions. To make wise selections regarding the property, it is necessary to acknowledge several provisions. Property, assets, titles, shares, funds, and other liabilities that belonged to the deceased and were transferred to another person are governed by inheritance laws in India. Because inheritance laws are not carefully enforced, partition happens often. However, dying intestate in India can have major legal complications as well.

A deceased persons property devolves in two ways: 

• Testamentary succession happens when someone leaves a will after passing away. Their property will be divided according to their gift in the will, but their legal rights must still be upheld.
• When a person passes away without a will and leaves heirs, this is known as intestate succession. The applicable personal laws govern when the assets vest. However, given that certain assets are more profitable than others, severe complications occur when there are multiple heirs.

In the context of property and rights and interests in property, the term “succession” often refers to the “transfer of an interest from one person to another.”, Sambudamurthi Mudaliar v. State of Madras, (1970) 1 SCC 4.

THE LEGAL IMPLICATIONS

WHAT HAPPENS IF A HINDU DIES INTESTATE

The Hindu Male

If the Hindu male leaves behind no will, then the property devolves by way of intestate succession applying the rules of the Hindu succession act. As per the rules, the Class I heirs are the preferential legal heirs to the property of the deceased, further Class II heirs inherit in the absence of the Class I heirs. Usually, the cycle of devolution of property ends here as people are surviving among the class II heirs if not Class I, but if that’s not the case then the agnates succeed to the property and in the absence of the agnates the cognates are the rightful owners to the deceased person’s property. 

The Class I heirs of a Hindu male include his descendants like a child( son or daughter) or child of a pre-deceased child, their spouses if the child or the child of a pre-deceased child is a male, his widow, and his mother. In all cases the property doesn’t devolve upon the Class II heirs because of the existence of a Class I heir, hence the father gets no share in the property of his child. This acts like a huge disadvantage since the mother is recognized as a class I legal heir but not the father. The will or the testament would have done justice to both parents giving them rightful ownership in their child’s property.

Revansiddappa & Others Versus Mallikarjuna & Others:

The Supreme Court ruled that, as a result of the Hindu Marriage Act, illegitimate offspring are entitled to the self-acquired property as well as ancestral holdings of their parents.

The Hindu Female

Females as per the Act were not coparceners until the 2005 amendment, which recognized daughters as coparceners. Hence now the female will have 3 different kinds of properties:

1. Self-acquired property
2. Property inherited from parents
3. Property inherited from husband or father-in-law 

Devolution for all the above 3 properties happens in different manners according to the act.

SELF ACQUIRED PROPERTY:

The self-acquired property of a female Hindu dying intestate shall devolve 

1. On her children (including the children of any pre-deceased son or daughter) and the husband; 
2. Upon the heirs of the husband
3. Upon the mother and father
4.  Upon the heirs of the father
5. Upon the heirs of the mother.

When this is the case, the heirs of the husband are given preference over her parents. Heirs of the husband include the Class I heirs, the Class II heirs the agnates, and the cognates. Hence there is a 1% chance that the property would even reach stage (c ) that is upon the parents or mother and father of the deceased Hindu female.

Heirs of the husband would include his mother who is the deceased female’s mother-in-law; here is the discrimination between the mother and the mother-in-law for the Hindu female. It still is considered that the woman is part of the husband’s family and her parents are nobody to her. There arises a need for a will for the appropriate distribution of her property after her death, every female necessarily needs to make a will as the provisions of the Hindu succession act are biased towards the males and their families.

PROPERTY INHERITED FROM PARENTS

When a Hindu female inherits property or assets from her parents in any manner, it first devolves upon her children or children of pre-deceased children only, if they are absent instead of devolution upon the husband, the property seeks its source which is the father. Hence the property devolves upon the heirs of the father regardless of whether it was inherited from her father or the mother.

This again is a huge gender bias made between the males and the females: the property if inherited by the Hindu female from her mother, in case of the death of the Hindu female should devolve upon the legal heirs of the mother instead of the father.

PROPERTY INHERITED FROM HUSBAND OR FATHER-IN-LAW 

Even in this scenario, the property seeks its source; in the absence of children or children of pre-deceased children, the property devolves upon the husband’s heirs according to the provisions under the Hindu Succession Act.

In the case of Bhagat Ram Vs. Teja Singh, (2002) 1 SCC 210, the court analysed Sections 14to Section 16 of the Act, repeating the position held in the State of Punjab vs. Balwant Singh & Ors. case. They noted as follows: “The source from which she inherits the property is always important and that would govern the situation”. Otherwise, the right to inherit the property would be acquired by people who are not even closely connected to the original owner. Sub-Section 2 of Section 15, which specifies a unique pattern of succession, would be defeated in that way.

M Krishna vs. M Ramachandra and Another (2023) :

“This Court has reiterated the view that if the adopted person aka the adoptee was the member of the joint family at the time of adoption, his rights in the joint family property have extinguished unless he possessed those properties by way of partition.” the HC said in its order dated July 14, 2023.

WHAT HAPPENS IF A MUSLIM DIES INTESTATE

The four sources of Islamic law that make up the Muslim rule of succession are as follows:

1. The Holy Quran
2. The Sunna 
3. The Ijma
4. The Qiya 

Muslims have a fixed share as to what every relation will inherit, this can be troublesome when calculation of the total share is in question. Since there are fixed shares, one cannot alter them to get unity. When such cases arise, the Muslims use the Doctrine of Aul, this is different for both sects and is a bit questionable

The son is not a sharer but inherits regardless, the very fact that he is not a sharer gives him an advantage over the daughters as a daughter is a sharer and gets a fixed share but the son isn’t so he becomes a residuary and as per the rules in Muslim law; in cases of residuary every male inherits double of what the female inherits. This is a major disadvantage to every female out there, inheriting property. The daughters even though are sharers are given the title of a residuary in the presence of a son, this is biases towards the daughter as she could have easily and happily inherited whatever was her fixed share but now has to inherit from the remains and will only get half of what the son gets. To avoid such conflicts within the children a Muslim shall make a will even if it is for 1/3rd  portion of his property.

THE DOCTRINE OF AUL

Shias deduct the excess amount or the amount which exceeds unity from the daughter’s share and not from the sons share. This again points towards gender biases and patriarchy.

The Sunnis however being from the same religion, deduct an equal share from all inheriting individuals to avoid the excess in the total share of the property. The same can be implemented by the Shia sect or community.

WHAT HAPPENS IF A CHRISTIAN/ PARSI DIES INTESTATE

The Christian if has an illegitimate child then the child will not be considered to be a legal heir as per the provisions of the Indian Succession Act 1925, however as per judicial pronouncements and precedents one can obtain a right over the father to the mother’s property even to though he or she is an illegitimate child.

The Christians faced biases due to the societal norms in the previous times when the Travancore Act was in place, however, it was overruled for the same reasons. 

In the case of Mrs. Mary Roy Vs. State of Kerala and others – 1986 SCR (1) 371

The petitioner contended that the Travancore Succession Act of 1916 discriminated against her by providing her only one-fourth of her son’s property rather than the complete amount. Finally, it infringed the petitioner’s fundamental rights, which are guaranteed by Indian Constitution Articles 14 and 15. The provisions resulte4d into gender biasness and the petitioner was not treated on equal footing. As a result, the provisions of the Travancore Succession Act of 1916 were ruled to be unconstitutional and inapplicable in this case.

LEGAL HASSLES AND CONCLUSION

The letters of administration or succession certificate must be submitted to the appropriate authorities to transfer an asset. For mutual funds, for example, the succession certificate must be presented to the applicable asset management firm (AMC) for the assets to be transferred. In order to obtain a succession certificate (for moveable assets) or letters of administration (for both moveable and immovable assets), the legal heirs must apply to court, as defined by applicable legislation. This operation will cost between 1% and 3% of the value of your assets, plus legal fees, and it will take one to two years if no disagreements arise. All that is required to completely avoid this expense is a strong will. Hence one should opt for making a will and the devolution of his property shall happen by the way he wants and wishes rather than by laws and rules.

REFERENCES

• Bhagat Ram (dead) by LRs. Vs. Teja Singh (dead) by LRs., (2002) 1 SCC 210
• Family Law Lectures, by Dr. Poonam Pradhan Saxena, ISBN-10 9391211666, 5th edition
• M Krishna vs. M Ramachandra and Another (2023)
• Mrs. Mary Roy Vs. State of Kerala and others – 1986 SCR (1) 371
• Revansiddappa & Others Versus Mallikarjuna & Others Civil appeal no. 2844/ 2011
• Sambudamurthi Mudaliar v. State of Madras, (1970) 1 SCC 4.
• Shariat Act or Uncodified Muslim Personal Law
• State of Punjab vs. Balwant Singh & Ors. 1992 AIR 2214
• The Hindu Succession Act, 2005
• The Indian Succession Act, 1925
• The Indian Succession Act, 1925,Sanjiva Row, ISBN-10 8187162325, 7th edition
• The Indian Succession Act, Paruck , S S Subramani & K Kannan,  ISBN-10 9386515865, 9th edition
• The Travancore Succession Act, 1916