KINDS OF SUCCESSION UNDER FAMILY LAW
Succession deals with
the transfer of property after the demise of an individual. The regulation that
deals with the inheritance of a property is known as law of succession.
In simple terms it
relates to the mechanism through which the property of an individual is passed
on to others, giving them the rights of ownership henceforth.
Succession Law of India:
In a country as
diversified as ours, in social set-up and culture, succession is a complex and
sensitive issue. And hence, there are different set of succession laws
prevailing in the country pertaining to various communities.
Succession and
inheritance may follow after the death of a person in two ways:
· Intestate succession
i.e. without a Will
· Testamentary
succession i.e. by a Will
Understanding Intestate
Succession
When an individual
dies without making a valid Will, then it means he died intestate. It can be
due to different factors, such as:
· If a person has left
no Will, then he dies intestate and his entire property shall be distributed
according to the laws ruling intestate succession.
· If a person has made
a Will and appointed an executor, who for any reason is incapable of executing
it, then he will be said to have died intestate as regards to all his property.
· If a Will has been
made but is incapable of being functional, then too he has died intestate.
· If he has transferred
his entire property for illegal purpose, then again, he shall be said to have
died intestate.
Thus, inheritance in
absence of a valid Will shall take place according to laws applicable based on
his religion.
Hindu Law: The Hindu Succession
Act, 1956
The Hindu Succession
Act, 1956, that was amended in 2005, enumerates the laws relating to intestate
succession. This Act is applicable on all those who are legally defined as
‘Hindu’ and includes Jains, Buddhists and Sikhs.
Succession of the
property belonging to a Hindu Male:
In a situation where
a Hindu male dies intestate, then his assets shall be distributed and property
shall be transferred to his legal heirs as per the Hindu Succession Act, 1956.
The legal heirs are
divided into these categories:
· Class I heirs: Consists of
immediate family members of the male and the property shall be equally divided
amongst them.
· In case of deceased son: Wife and
children shall inherit his right and each will share equal rights. Thus, the
wife shall have half of it and in the other half the children shall get equal
share depending on their number.
· In case of deceased daughter: Her share shall
pass on to all her children in equal proportion. It is imperative to note that
the husband of such deceased daughter has no right in such property.
· Class II heirs: In the absence
of any Class I heir, the property of the dead person shall pass on to Class II
heirs. There are many relations which fall in this category and have been sub
categorized into 9 categories below.
Category I:
· Father
Category II:
·
Son’s daughter’s son
·
Son’s daughter’s daughter
·
Brother
·
Sister
Category III:
Daughter’s son’s son
Daughter’s son’s
daughter
Daughter’s daughter’s
son
Daughter’s daughter’s
daughter
Category IV:
Brother’s son
Brother’s daughter
Sister’s son
Sister’s daughter
Category V:
Father’s father
Father’s mother
Category VI:
Father’s widow (Step
mother)
Brother’s widow
Category VII:
Father’s brother
Father’s sister
Category VIII:
Mother’s father
Mother’s mother
Category IX:
Mother’s brother
Mother’s sister
The law provides that
an heir in the earlier category shall lead to exclusion of the heirs of later
categories. Additionally, all heirs falling into one category will get per
capita share.
·
Agnates:
The term ‘agnates’
refers to the relationship between the deceased and the heir wholly through
male descendants. For example, a person shall be an agnate of his father’s
brother’s son.
· Cognates:
A person shall be
called a cognate of another if they share a relationship through blood or
adoption, but not wholly through males.
If there are no Class
I or II heirs of a deceased Hindu male, then, an agnate shall get preference
over a cognate. Only in case there are no agnate, can a cognate be considered
an heir to such a person.
· Government:
In case, there are no
Class I or II heirs nor agnates or cognates of the deceased male, then his
entire property shall go to the government along with all the obligations and
liabilities.
Amendments
The Hindu Succession
(Amendment) Act, 2005, has amended Section 6 of the Act to provide daughters of
a deceased Hindu, at par with the sons. Both, the sons and daughters are
henceforth entitled to the same rights as well as liabilities.
Indian Succession Act, 1925
This Act is
applicable on all except Hindus and Muslims, which are ruled by their own
personal laws. Thus, smaller communities like Christians, Jews, Parsis, etc.
are covered by this Act which is applicable on intestate as well as
testamentary succession.
Under the provisions
of this Act there is no differentiation between:
·
a deceased person’s relatives of father’s side as well as
mother’s side;
·
relatives who are have full blood relation or are related
to him through half-blood;
·
those who were already born during the lifetime of the
deceased person or those who were only conceived in the womb, but later born
alive.
Intestate succession
under this Act bestows upon the deceased man’s widow and children, both male
and female, equal rights of inheritance.
Muslim Personal Law (Shariat)
Application Act, 1937
The Muslim succession
law is an amalgamation of all four sources of Islam:
·
The Holy Koran;
·
The Sunnah: the practice of the Prophet;
·
The Ijma: learned men’s consensus on the decision of a
particular factor;
·
The Qiya: a decision taken in line with the laid down
principles of God.
The Muslim Law does
not differentiate between immovable and movable property, there are no ‘kinds’
of property, hence, at the time of the death of a person, all the property that
belonged to him shall be divided amongst his heirs.
Unlike the Hindu law,
the Muslim law does not differentiate between ancestral property or
self-acquired property. All of it considered as one and the same and therefore,
all of it shall be inherited by his heirs.
Another major factor
that differentiates between the Hindu and Muslim inheritance law is that the
Hindus get it through their birth right whereas Muslims are not entitled to it
by birth. The Muslim inheritance ebbs from the death of the ancestor, he gets to
inherit the property only if he survives after the death of the ancestor. If in
case the heir apparent dies before the ancestor then no such right of
inheritance shall exist.
Doctrine of
representation, that finds representation in well established laws of
inheritance such as English, Romans and even Hindus, does not find place in
Muslim law. If a son dies before his father, then his children shall not be
entitled to any share in the property. Therefore, it is claimed that the nearer
heir excludes the remote heir from inheritance rights.
Distribution of property:
In the Muslim law,
distribution of property can be done in two ways, a) per capita or, b) per
strip distribution. The per capita distribution methodology is majorly applied
in the Sunni law whereas, the per strip distribution is adopted by the Shia
law.
According to the per
capita distribution, the estate left over by the ancestors is
distributed equally amongst all his heirs. On the other hand, in the strip
share process an heir gets inheritance according to the strip they belong, the
branch and the number of persons in that branch.
In this manner it can
be said that the principle of representation is applied in the Shia law in a
limited manner.
Women’s Right to Inheritance:
Muslim law makes no
differentiation between men and women when it comes to succession rights. Girls
enjoy equal rights as the boys but usually in practicality the girls are given
half of what their male counterparts, the reason being they receive ‘mehr’
during marriage.
Rights of a Widow:
Under the Shia law, a
Muslim childless widow is entitled to one fourth of the movable properties of
her husband. As regards to immovable property, a widow is entitled to one
eighth of the said property.
Rights of Step Children:
The Muslim law does
not bestow any rights of inheritance on step children in their step parents
property; but they can inherit from step brother or sister.
Escheat:
In case where any
Muslim person dies without any heir, then his property shall go to the government.
Decoding Testamentary
Succession:
Testamentary
Succession is to devolve one’s property through Will. A Will is a legal
declaration made by an individual, a testator, of the way in which he intends
to distribute and pass of his property. Any individual who has attained the age
of 18 and is of sound mind can make a Will regarding his properties.
Who is competent to make a
Will?
·
Every person who has attained the age of majority and is
of sound mind;
·
A married woman who could alienate the given property
during her lifetime;
·
Deaf, dumb and blind people can also make a Will provided
they are aware of all the provisions in it;
·
Any person who is of unsound mind, or does not know what
he is doing, because of intoxication or illness, cannot make a Will.
There is no fixed
format as to how a Will shall be drafted, the only requirement is that the
language should clearly state the intent of the testator. If there is any
ambiguity in the Will, then it shall be counted as void. A Will needs to be
probated after the death of the testator and it shall come into effect only
after the probate is granted.
A Will made by a
person of any other religion other than Islam, shall be governed by the
provisions of Indian Succession Act, 1925.
Will under Muslim (Shariat)
Law:
Every adult Muslim of
sound mind is entitled to make a Will. The Shariat law prescribes that a person
can only leave one-third of his property through Will to anyone he
wishes. For The remaining two-thirds shall by law, go to his heirs,
equally shared between them.
A property cannot be
bequeathed to an unborn child as per the Muslim law, but if the mother is
expecting the child, and the same is born within six months of the death of the
person, then the child has all rights of inheritance.
A Muslim person may
bequeath a property through Will, but there shall not be any conditions or
requests attached to it, it should have to be unconditional.
A Muslim can revoke a
Will at any given time before his death, without the need to state any
justification. The last Will made by the testator shall be considered the final
legal document.
The testator shall
select the executors of his Will who shall have the right to dispose of the
properties as per the wishes of the testator, as detailed in the Will.Read More
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