Who are entitled to inherit property?

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inherit property

Property is a very common reason for disputes in a family. Many a times, people die without making the will and family members and relatives try to get the interest in the property of the deceased. In order to solve and avoid the disputes amongst family members, The Hindu Succession Act, 1956 has laid down various provisions which guide devolution of property and inheritance rights of the Hindus. The inheritance rights of both men and women are specified in Hindu Succession Act.

So who all are entitled to inherit the property of the deceased? What is the order in which preference is given to them for inheriting the property?

Applicability of Hindu succession Act, 1956

According to Section 2 of Hindu Succession Act, the provisions of this Act are applicable to the following:

  • to any person who is applicable to the Hindus in any of its forms or developments.
  • to any person who is Buddhist, Jaina, Sikh by religion
  • to any other person who is not a Muslim, Christian, Parsi or Jew by religion.

Devolution of property of Hindu male dying intestate

Devolution of property means transmission of interest in the property. When a male Hindu dies without making the will then the interest in his property is divided in accordance with Section 8 of the Hindu Succession Act, 1956. The devolution of property is done firstly to Class I heirs, then to Class II and if there is no heir in both these classes then to the agnates and cognates of the deceased. Therefore, it is necessary to understand the different terms such as Class I heirs, Class II heirs, agnates and cognates.

Class I heirs

Firstly, the interest in property of the male deceased is divided amongst the Class I heirs. The Categories of Class I heirs are mentioned in Schedule of Hindu Succession Act. Class I heirs include the following relations of the deceased:

Mother, widow, daughter, son, widow of a predeceased son, son of a predeceased son, daughter of a predeceased son, widow of a predeceased son of a predeceased son, daughter of a predeceased son of a predeceased son, son of a predeceased son of a predeceased son, daughter of a predeceased daughter, son of a predeceased daughter, son of a predeceased daughter of a predeceased daughter, daughter of a predeceased daughter of a predeceased daughter, daughter of a predeceased son of a predeceased daughter, daughter of a predeceased daughter of a predeceased son.

The property in Class I heirs is divided according to the rules under Section 10.

Class II heirs

After Class I heirs, interest in property is devolved amongst the Class II heirs. Class II heirs as per schedule of the Act are as follows:

  • Entry 1: Father
  • Entry 2: Son’s Daughter’s son, Son’s Daughter’s daughter, Brother, Sister
  • Entry 3: Daughter’s Son’s son, Daughter’s son’s daughter, Daughter’s daughter’s son, Daughter’s Daughter’s daughter
  • Entry 4: Brother’s son, Brother’s daughter, Sister’s son, Sister’s daughter
  • Entry 5: Father’s father, Father’s mother
  • Entry 6: Father’s widow, Brother’s widow
  • Entry 7: Father’s brother, Father’s sister
  • Entry 8: Mother’s father, Mother’s mother
  • Entry 9: Mother’s brother, Mother’s sister

According to Section 11, property will be divided equally amongst the heirs in each entry.

Agnates

According to Section 3(a) of Hindu succession Act, 1956, one person is said to be an ‘agnate’ of another if the two are related by blood or adoption wholly through males. If there is no heir in Class I and Class II then devolution of interest in property is amongst the agnates.

Cognates

If there is no agnate then the property is transferred to the cognates of the deceased. According to Section 3(c) of the Act, one person is said to be ‘cognate’ of another if the two are related by blood or adoption but not wholly through males.

Rules for distribution of the property among agnates and cognates are as specifically mentioned under Section 12 and 13 of the Act.

If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the Government; and the Government shall take the property subject to all the obligations and liabilities to which an heir would have been subject.[i]

Devolution of property of Hindu female dying intestate

Section 14 of the Hindu succession Act, says that the females who are possession of any property, will be the absolute owner of the property.

The order in which the property of females who die intestate is distributed is as follows:

  • Primarily, the property will be divided amongst the sons, daughters and husband of the deceased. Here, sons and daughters include the children of any pre-deceased son or daughter;
  • If no heir is left from the first entry then the property will be devolved amongst the heirs of the husband of deceased in accordance with Section 8 of the Act;
  • Thirdly, the property will be transferred to mother and father of the deceased;
  • Fourthly, property will be transferred to the heirs of the father of deceased according to Section 8.
  • If no heir is left in the above entries then property will be transferred to the heirs of the mother of deceased.

Also, in absence of son and daughter of the deceased, any property which is from the father’s side will be given to the heirs of the father and if the property was inherited from the husband’s side then preference will be given to the heirs of the husband.

There are certain rules mentioned under Section 15 of the Hindu Succession Act, 1956, which guide the devolution of property of females. The rules are as follows:

1. Rule 1 says that the heirs in the entry which comes first will be preferred and in each entry, all the heirs will have the interest in property simultaneously.

2. The next rules says that son or daughter of the pre-deceased son or daughter of the female who has died, will take the same share as that of their deceased father or mother would have been given, had they been alive.

3. Devolution of property to the heirs of the husband and father of the deceased would be as per Section 8 of the Act and to the heirs of mother would be according to Section 15.

General Rules applicable to the Laws of succession

There are some general provisions which have been specified under different sections of Hindu Succession Act. Following are the some important general provisions:

  • In any case of inheritance of property, the heirs who are related to the deceased by full blood are preferred to the heirs related to deceased by half blood. The definitions of “full blood” and “half blood” are given under Section 2(e)(i) of the Act. Section 2(e)(i) states that “two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife, and by half blood when they are descended from a common ancestor but by different wives”.
  • A child who is in the womb at the time of death of intestate (if born alive) will have same rights in the property to that of a living child.
  • Section 25 of the Act says that the murderer of intestate will not be given the right in property of intestate.
  • According to Section 21, if two persons die simultaneously and it is difficult to find out that who died first then it is presumed that the younger survived the elder.

Important Amendments in Hindu Succession Act

Earlier, daughter were not given share in the property of their ancestors. But, amendments in the year 2005 has given the same rights and liabilities to the daughter. It was a step towards elimination of discrimination on the basis of gender. According to Section 6 of the Act:

  • Daughter of coparcener has the same rights in the property as that of a son
  • Daughter of coparcener has the same liabilities as that of a son;
  • Daughter of coparcener by birth becomes a coparcener in the same manner as the son.

In Pravat Chandra Pattnaik v. Sarat Chandra Pattanaik[ii], it was held that the amendment of 2005, gives equal right in property to every daughter whether born before or after 2005 and it is incorrect to say that it will give equal right to the daughters who are born after 2005 only.

Inheritance laws for Muslims

Inheritance of Muslims is guided by three Acts namely, Muslim Personal Law (Shariat) Application Act, 1937, in case the person has died without making any will; Muslim Sharia laws are applicable in case the deceased has died testate and when the case is of West Bengal, Chennai or Mumbai and the property in question is an immovable property then Indian Succession Act, 1925 applies.

There are two sects of Muslims, Shias and Sunnis and the inheritance laws are different for both.

Shias– Among Shias, the property is distributed applying the per stirpes rule. According to this distribution rule, the property is divided amongst the branches first and then to the legal heirs in each branch. For example, if Z has three children namely, A, B and C,  and C has further two children namely P and Q, then after the death of Z, property will be divided amongst A, B, and C and they will get one third share each.

Sunnis– Sunnis follow per capita rule of distribution of property where each surviving heir get equal share in the property of deceased. In the above example, after the death of Z, each surviving heir will get equal share which means that A, B, C, P and Q will get equal shares in the property of Z.

Muslim women get half the share in property than men and a widow gets one eighth share in her husband’s property when there are children and one-fourth, when she doesn’t have children.

Inheritance laws for Christians

Rules of the intestate succession are governed under Section 29 to 49 of Part V of the Indian Succession Act, 1925. Section 2d defines Indian Christians as, “a native of India who is, or in good faith claims to be, of unmixed Asiatic descent and who professes any form of the Christian religion”.

According to Section 33, if any person dies intestate and has left a widow,

  • and any lineal descendant then widow will get one-third of the property and lineal descendants will get two-thirds the property.
  • and has left no lineal descendant but there are persons who are kindred to him then the widow will get half the share in property and the other half will belong to those who are kindred to him. There are some rules mentioned under Section 33A which apply in this case.
  • and there is no lineal descendant and persons who are kindred to him then, whole of the property will belong to him.

There are some situations where the intestate has left no widow and the persons who are kindred to him, in these cases, as per Section 34 of the Act, the property shall go to the government. According to Section 35, the rules applicable are same when the wife dies intestate.

Rules of distribution of property as mentioned in Sections 37 to 40 are as follows:

In case intestate has left only children then the property shall be divided amongst the children equally.

In case intestate has left only his grandchildren, then only property will be divided amongst them equally.

If the intestate has left lineal descendants who do not all stand in the same degree of kindred to him, and the persons through whom the more remote are descended from him are dead, the property shall be divided into such a number of equal shares as may correspond with the number of the lineal descendants of the intestate who either stood in the nearest degree of kindred to him at his decease, or, having been of the like degree of kindred to him, died before him, leaving lineal descendants who survived him.[iii]

Inheritance laws for Parsis

Indian Succession Act, 1925 lays down inheritance laws of Parsis in Sections 50 to 54. Following are the general provisions as mentioned under Section 50 of the Act:

  • Child in womb has right in the property of intestate.
  • Any lineal descendant who died before the death of intestate and has not left any widow/widower or any lineal descendant, is not entitled to get any share in the property of intestate.
  • When widow/widower of any relative of intestate has remarried in the lifetime of intestate, he/she is not entitled to get any share in the property.

Following are rules for the division of intestate’s property:

  • Children and widow will get equal share in the property of deceased
  • If parents are alive at the time of death of intestate then each parent will get share equal to half the share  of the child of intestate.
  • If there is any predeceased child of intestate then he/she will get the share in property in the same manner as such child would have taken if living at the intestate’s death.
  • Division of property is in accordance with the rules mentioned under Section 54 of the Act when the intestate die leaving behind no lineal descendant but only widow/widower or widow/widower of any lineal descendant.

The Hindu Succession Act, 1956 has detailed almost every concept of inheritance for Hindus, while The Indian Succession Act, 1925 lays down provisions for Muslims, Christians and Parsis. Solving the conflicts according to the provisions help in the promotion of just and fair procedure. Various categories and entries for the devolution of property of males and females have been specified in the Act and by following these provisions, ambiguity can be decreased. Moreover, amendment of 2005 which provides equal right and impose equal liabilities on the females in The Hindu Succession Act, 1956, is a move towards the unbiased and fair system.

Edited by Pragash Boopal

Approved & Published – Sakshi Raje

Reference

[i] Hindu Succession Act, 1956, s. 29

[ii] 2008 Ori. 86

[iii] Indian Succession Act, 1925, s. 40(1)

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