This article will be divided into:
a. Hindu Succession Act, 1956; Hindi Succession (Amendment) Act, 2005
b. Inheritance under Muslim Law
Hindu Succession (Amendment) Act, 2005
As per Hindu Succession Act, 1956, Hindu female had no rights on the property once she is married. This means that she can enjoy her father’s property till she is unmarried. Only the male members of the family were given succession. This is because, once she gets married, she is treated as the member of her husband’s family.
Under Hindu law, a Hindu Undivided family (HUF) consisted of all those members/ lineal descendants of a common ancestor. Only the members of the HUF get the right of property. So, when a woman gets married, she ceases to be the part of the family. But this was curtailing her rights on her parental property. On 9th September 2005, this was thus amended, and the daughters were given the same rights as sons had. Woman, married or unmarried, was considered as the member of HUF, after the Hindu Succession (Amendment) Act, 2005.
In spite of the amendment, there was a condition that the daughter can avail the benefit of the 2005 amendment, if her father and daughter were alive on 9th September, 2005. But, the Supreme Court 2nd February, 2018, made a general rule that the daughters dead or alive after the amendment can avail the benefit of the amendment. If she was dead at the time of the amendment, her children can claim her share of the property.
If the property is ancestral:
Ancestral property is essentially four generations of an inherited undivided property with male heredity. Descendants, regardless of a daughter or son, has the birth-right to an equal share in the property. This means that the daughter cannot be deprived the right of getting her share from the ancestral property.
If the property is self-acquired by the father:
If the property is bought by the earnings of the father, it is said to self-acquired by him. Nobody can demand their right on these self-acquired properties. It is at his wish and will to give the right to any person he wishes to. If the father wishes, he can even write it for a beggar, if he wishes to.
Death of father intestate:
If the father dies without writing his will for his property, every Class I heir i.e. mother, son and daughter; everyone has an equal right on that property.
For married daughters:
After the 2005 amendment, the daughter has been recognised as a coparcener and her marital status makes no difference to her right over the fathers property. However, before this amendment, after her marriage, she seized to be the coparcener.
Muslim Law of inheritance
The Muslim lawof inheritance derives its principles from four principal sources of Islamic law which are: the holy Koran, the Sunna i.e. the practice of the Prophet, the Ijma i.e. the consensus of the learned men of a community on a particular point of law and the Qiya i.e. the analogical deductions of what holds just and right and in line with the principles of God. The Muslim Personal Law (Shariat) Application Act, 1937 is applicable to non-testamentary succession, i.e. succession in the absence of a will. For testamentary succession, which is when the deceased has made a will, then the Muslim Shariat Law is applied to succession, as practiced by the Sunni and Shia Muslims.
There is also no difference between a self-acquired property or ancestral property in Muslim law. When a Muslim person dies, all the property that the person may have acquired in his lifetime and also any property that the person may have inherited from his ancestors can be inherited by his heirs.
Types of heirs:
There are two types of heirs in under Muslim law: Sharers and Reliquaries. Sharers are entitled to specific fractions of the property of the deceased whereas Reliquaries, as the name suggests, are distributed any residual share in the property.
No right by birth:
Under the Hindu law, a coparcenary gains an interest or right in the property of the deceased the moment such a coparcenary is born. But because there is no concept of a joint family under Muslim law, there is no concept of right to property by birth either. Muslim Lawfollows the principle of ‘nemo est haeres viventis’ i.e. nobody can become an heir to a living person.
Inheritance rights of Females:
Unlike Hindu Law, there is no difference between the right to inheritance between men and women under Muslim law. Under Shia law, women usually receive half of the share amount that the males get. This is reasoned so because Muslim women receive maintenance and also mehr at the time of marriage whereas Muslim men are entitled only to ancestral property. However, whether or not this actually qualifies as equality between men and women is debatable.
Distribution of property under Muslim Law:
a. Per capita distribution: Per capita distribution of property is mainly followed by the Sunni Muslims. In per capita distribution, the property is divided equally among all the heirs. This means that the number of heirs of the deceased determines the amount of share for each heir in the property of the deceased. The branch of the family to which the heir belongs to does not influence the inheritance that he or she is subjected to receive.
b. Per Stripe’s distribution: Per stripes distribution of property is followed by the Shia branch of Islam. Under per stripes distribution, a property is distributed among the heirs of a branch (strip) of the family. Accordingly, the family branch and the number of people that exist in that particular branch of the family will determine the amount of share in the property of the family members.
Right of the widow:
Widows are also entitled to property in a succession as per Muslim law.
If the widow does not have any children, then she will be entitled to one- fourth of the property that her deceased would receive. The amount that she will actually receive would be calculated after paying off the debts and legal and funeral expenses of her husband.
If the widow does have children or grandchildren, then she will be entitled to one- eighth of the share of her husband’s property.
But a widow has no right to inheritance if she had married her husband while the husband was ill and died at a later point of time.
“The views of the authors are personal“
