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 transferring ownership and interest in a deceased person’s property to their rightful heir. There are many provisions pertaining to it, which one must acknowledge in order to make appropriate decisions regarding the property. The laws of inheritance in India deal with property, assets, titles, shares, funds, and other obligations that belonged to the deceased person and were transferred to another individual. Oftentimes, partition occurs because inheritance laws are not applied strictly.

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.

PROPERTY

Property is a collection of rights, and it can never exist without an owner. One of the most important purchases a person makes in his lifetime is property, which is needed for a variety of reasons such as investments or emergency housing. Property can be divided into two categories: inherited property and self-acquired property. Property rights are important because they guarantee that an individual’s belongings are passed on to their legitimate heirs, prevent trespassers from occupying the land, and allow the successors to enjoy what their predecessors left behind.

 

Ancestral Property

A son and a daughter are entitled to ancestral property by birth under the Hindu Succession Act, which is the law governing property inheritance. Such property cannot be disposed of by a father by excluding his legitimate heirs. A father is not permitted to give, sell, or transfer such property to any third party at his discretion. Stated differently, he is not allowed to take away a son or daughter’s portion of the family estate. From the moment of their birth, children are entitled to inherit such property. 

Self-Acquired Property

A father or mother’s self-acquired property does not confer any birthright upon their son or daughter. A parent, unlike the owner of ancestral property, is free to give the property or Will it to whoever he pleases; neither the son nor the daughter may object. Hindu law states that children cannot inherit property on their own; they can only inherit a portion of their father’s ancestral holdings. However, since the transfer was performed at the father’s discretion with regard to his self-acquired property, others cannot contest it, if the transfer was made by way of a will to only one particular child out of many.

 

HINDUS

Intestate Succession

The Hindu Succession Act was enacted to improve and consolidate the law governing Hindu intestate succession. It includes and applies to everyone who practices the religion or is legally designated as a Hindu (Buddhists, Jains, and Sikhs). Hinduism has separate succession rules for men and women; in reality, the legal heirs are chosen based on the deceased’s gender. According to the terms of this Act, if a Hindu man dies intestate, the following individuals may lodge a claim:

1. I. Class I heirs: the first in line for property distribution and favoured legal heirs; they are the first to receive property. Included are the mother and her children, as well as the children of deceased children.
2. II. Class II heirs include the father and other family members; they only inherit property if the Class I heirs are not present.
3. III. Agnates: If no Class I or Class II heirs exist, the property is inherited by distant blood relatives on the father’s side of the family.
4. IV. Cognates: When none of the preceding categories apply, the cognates take over. Cognates are distant blood relatives on the female ancestors’ mother’s side.

If a Hindu female dies intestate, the following people can bring a claim under the provisions of this Act: 

• The husband and children
• If the initial claimants are not present, the husband’s heirs may submit a claim.
• The deceased woman’s parents, in the absence of the first and second claimants; 
• Her father’s heirs, if the aforementioned claimants are not present; 
• Her mother’s heirs, if the father’s heirs are not present.

 

The Hindu Succession Act’s provisions regarding escheat, transfer ownership of property to the government apply when a Hindu passes away and leaves no surviving relatives or heirs. Another gender prejudice that has to be broken is the Hindu Succession Act’s preference for the husband’s heirs over the female’s parents when it comes to property distribution. Nevertheless, under section 8, men—that is, the fathers of the deceased men—are categorised as class 2 heirs as opposed to class 1 heirs, which is the mother.

MUSLIMS

Under Muslim law, there is no distinction between men’s and women’s rights. Nothing can prevent the boy and girl from properly inheriting the farm after their ancestor dies. However, in general, a female heir’s share is half that of a male successor. This is because, according to Islamic law, men are only entitled to inherit their ancestors’ property, whereas women are entitled to Mehr and maintenance from their husbands after marriage. Men have an obligation to support their families and children.

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 

 

INHERITANCE AS PER MUSLIM LAWS

As per their personal law, succession takes place in 3 stages.

STAGE I

This stage deals with duties that a Muslim is obliged to perform on the demise of an Indian Muslim.

There are essentially 4 tasks that must be completed :-

• Payment of Funeral Expenses
• Wage Payment
• Loans
• Will – Will execution up to the allotted portion

Prior to the inheritance being divided among the heirs and successors, these must be subtracted.

STAGE II

This stage deals with the actual distribution of property among the HEIRS AND SUCCESSORS- In this case, the rules governing the division of a Muslim’s property among heirs or successors diverge since there are two distinct Muslim sects: the Sunnis and the Shias.

The tables below show the fixed shares of Muslims in general; because these shares are fixed, the total may exceed unity (1). There are distinct approaches taken by Sunnis and Shias to deal with excess.

SHIA

Shia law does not recognise the idea of distant kindred; instead, it recognises just two classes: sharers and residuary. In Islamic law, there are twelve sharers—the same number for Sunnis and Shias: Four men and eight women. The parents, daughter, and spouses of the deceased are the main people who inherit regardless. Sons inherit as residuary rather than as sharers. The daughter inherits as a sharer in the absence of a son, but under the 2:1 inheritance ratio when both parents coexist, both inherit as residuary. There are one female and two males.

All relatives who are close relatives or who, for whatever reason, are not included in the sharers are considered residuary. Just as a daughter becomes a residuary because a son exists. If a daughter or a son’s son exists, then the same laws apply to her as well; she too becomes a residuary. The golden rule for the residuary inheritance is that males take twice as many females as females, resulting in a 2:1 ratio at all times.

In most circumstances, the excess share is subtracted from the daughters’ part when the total exceeds unity or 1, and the sisters’ share is subtracted when there are no daughters (complete consanguine or uterine) in order to attain unity or a balanced fraction.

SUNNI

Sunnis have sharers, residuary and the distant kindred. Sharers and residuary have similar rules as the Shias. The shares are given in the table below.

Distant kindred: they are relatives that are related to the deceased by blood however they are further in relation than the sharers or the residuary, the property devolves upon the distant kindred only in the absence of the sharers and residuary.

The kindred inherit property after the application of the rule of exclusion, the relative of nearer degree excludes the relative of a farther degree.

STAGE III

This stage occurs when the deceased has left behind no legal heirs to succeed to the estate, and hence the government inherits the property applying the doctrine of escheat. This practice is common to all religions.

CHRISTIANS

Section 2(d) of the Indian Succession Act defines “Indian Christian” as follows: An “Indian Christian” is a person native to India who practices any kind of Christianity and is of pure Asian descent. The case of Abraham v. Abraham, further discussed the word “Indian Christian” and defined in terms of its actual usage. This ruling established that any ongoing obligatory power that Hindu law may have had over a Hindu who converts to Christianity is annulled and that the Hindu, whether customary or not, is no longer subject to Hindu law. 

The following Act recognizes the 3 types of heirs for Christians:- 

The widow or the Widower ,the Lineal Descendants and the Kindred

Sections 31 to 49 of the Indian Succession Act of 1925 govern Christian succession. As per Section 32, a Christian’s legal heirs are:

1. The Widow or the Widower
2. The Son or Daughter
3. The Parents
4. The Siblings or the children of pre deceased siblings
5. The Ascendants

A “lineal descendant” is defined as “a descendant born from a lawful marriage.” As a result, an illegitimate son of a daughter, illegitimate daughter of a son, or any other illegitimate offspring cannot be considered as a “Lineal Descendant.” As a result, such a child is not entitled to the parents’ possessions. Nonetheless, in Jane Anthony v. Siyath 2008 (4) KLT 1002, the Indian Succession Act recognised the illegitimate child’s entitlement to their parent’s property.

Christian law accepts lawful marriages alone as the basis of legal status for children born outside of marriage. Polygamous unions are also prohibited unlike in Muslims. Even if the legislation does not expressly state it, it has been ruled that adoption is acceptable and that an adopted child has all of the rights of a natural-born child.

Blood ties formed by lawful marriage are referred to as “kindred” relationships. Illegitimate birth relationships are therefore not recognised by the Act as Kindred. Kindred relationships do not include affinities like your mother-in-law or stepmother, or stepfather. Consequently, the property of one’s stepchildren is not legally enforceable against a stepfather or stepmother. A father-in-law finds himself in a similar circumstance.

Succession can now be carried out either “per stirpes” (division by branch in cases where relationship degrees are distinct) or “per capita” (one portion to each heir in cases where relationship degrees are the same).

RULES OF DISTRIBUTION

Under the Succession Act, only ties resulting from a lawful marriage are considered safeguarded. If an intestate dies without leaving both of these parties, the widow will be entitled to one-third of the estate, and the children and their progeny will inherit the remaining two-thirds.   In the event that the deceased had a widow and no biological children, she will get half of his estate. His family will split the remaining half.

The spouse of a divorced woman is not eligible to inherit her possessions or property. The Indian Divorce Act of 1869 stated that in the event of a judicial separation, the wife’s property would pass to her legal heirs as if her husband had died. If the intestate leaves no lineal descendants, the widow’s estate is allocated in accordance with Section 33(b). The estate of the intestate is divided in half.

As according to Section 33 (b) if the property is below Rs. 5000 of amount, the widow gets the entire property for maintaining herself and securing her future. However, if the property is valued above Rs. 5000, then primarily Rs.5000 are given to the widow as means of maintenance and the further remaining amount is to be divided in half between the widow and the kindred.

If an intestate leaves just one grandchild, that grandchild will own the property; if more than one grandchild survives, the remaining grandchildren will split the property evenly. When an intestate leaves just grandchildren and no other distant relatives, this happens. Adoption by Christians is banned in India; hence an adopted child cannot claim the right to succession unless a tradition of adoption can be demonstrated. Only the Indian Succession Act of 1925 and other Christian succession laws apply to Hindus who convert to Christianity.

 

When an intestate leaves no parents, siblings, or lineal descendants, his property is divided equally among his closest relatives, according to Section 48. If no heirs are located by the government, the deceased’s inheritance is returned to the state under the Doctrine of Escheat.

Mrs. Mary Roy etc. 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.

PARSI

Sections 50 through 56 of the Indian Succession Act of 1925 regulate Parsi inheritance laws. As with Christian inheritance law, there is no distinction between the rights of widows and widowers. A Parsi person has the following rightful heirs, according to Section 54 of the Indian Succession Act, 1925:

1. The Parents 
2. Full Siblings: brother and sister
3. The Paternal grandparents
4. The Maternal grandparents
5. Mothers Siblings or cousins and their descendants
6. Fathers Siblings or cousins and their descendants
7. Parents of paternal grandparents
8. Parents of maternal grandparents
9. Children of paternal grandparents’ parents and their lineal descendants
10. Children of maternal grandparents’ parents and their lineal descendants

If an intestate remarries while still alive, their widow or widower receives nothing. The only exceptions to this law are the intestate’s mother and paternal grandmother; even if they remarried while the intestate was still alive, they would be entitled to a share.

Rights of Spouses and Grandchildren

• Grandchildren have the same rights as their parents regarding inherited or ancestral property under inheritance regulations. 
• In the self-acquired scenario, the grandson has rights over the father’s and grandfather’s property. The wife cannot possess the family’s ancestral property. Whether she is a widow or not, her rights are confined to the property they have earned on their own. She does not have any ancestral properties. 

 

WILLS

Testamentary Succession

Basically, testamentary succession is just the act of carrying out a will. Your property would subsequently be divided among your rightful heirs in accordance with your will. The following details are included in a will: 

“Who receives your estate and how is it divided up among your heirs?” 

Your legatees are the people listed in your will. Anybody can be the person you legate anything to. Being related to a legatee is not necessary. The laws governing Indian succession recognise wills. Will creation and enforcement are governed under the Indian Succession Act, 1925. In India, testamentary succession is governed by this law. Muslims are exempt from the Indian Succession Act of 1925. 

Muslims are governed by their own personal laws. You are free to allocate your property as you see fit if you have a will.  If you are a Muslim, however, you are not allowed to leave more than one-third of your fortune in your will without the approval of your legitimate heirs. No one else is subject to this kind of restriction.

If you are not a Muslim, you can execute your Will in line with the Indian Succession Act, 1925. As a Muslim, you must carry out your Will in accordance with Islamic personal law. Write down the will and affix your signature. You have the option to sign the Will with your thumb impression. You can execute a will with simple paper. It is not necessary to execute a will on stamp paper. Additionally, registration is not required. Muslims have a much simpler process for carrying out their Wills. It is not necessary to sign or write your will. Even oral delivery is possible. Witnesses who can attest are not required. Your Will must express your intentions clearly. Oral wills, however, are hard to prove. Therefore, it is best to put your intentions in writing. 

Someone ought to be appointed executor of the will after someone dies. Usually, this duty is placed on solicitors.  Executing a will is the process by which someone carries out the directions specified in a deceased person’s testament. An executor is the person who carries out the terms of the will. The executors ensure that the distribution of the estate follows the terms stated in the will. More than one executor is possible. As executors of your will, you may designate one or more individuals.  Don’t forget to obtain their permission. Selecting an executor ought to be a meticulous procedure. The appropriate court may designate certain of your legal heirs as the executor[s] if you do not name an executor or if the executors decline to serve as executors following your passing.

 

Sections 57 to 191 of Part VI of the Act deal with wills and codicils in general, including their creation and enforcement, capacity, and the formalities required in making a will. Section 59 allows any individual of sound mind who is not a juvenile to dispose of their property at their leisure. Married women and persons who are deaf, stupid, or blind but not incapacitated from creating a will have the right to dispose of their possessions in a will. A person must be in good mental health and devoid of any disorders or intoxicants that would affect their ability to grasp what they are doing, according to the method.

REFERENCES:

Abraham v Abraham [1863] 9 Moore Indian Appeals 199, 19 ER 716

Family Law Lectures, by Dr. Poonam Pradhan Saxena, ISBN-10 9391211666, 5th edition

Jane Anthony v. Siyath 2008 (4) KLT 1002

Law of Wills, T.P.Gopalakrishnan, ISBN- 9789391211677, 11th edition

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

Sambudamurthi Mudaliar v. State of Madras, (1970) 1 SCC 4.

Shariat Act or Uncodified Muslim Personal Law

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