Inheritance of property in India is governed by a number of personal and customary laws. It took a herculean effort to codify the laws regarding this as they sometimes vary from each other fundamentally. It took such effort because the laws should keep up secularism while also bringing some kind of uniformity among these much diversed laws. The Indian Succession Act is a milestone in bringing about a common code for inheritance. When a person establishes his desire, while alive, on how to distribute his property after his death, it is much easier. It can be done through a Will or a testament during his lifetime and is called as Testamentary Succession. However, when he dies without a will and there is his property to be distributed, that’s when law has to intervene and declare how it should be done. When a person dies without a Will he is called an Intestate. Let us magnify and study the laws of Intestate Succession in India.
The Hindu Succession Act, 1956:
This Act has been enacted specifically for the governance of succession of property in a Hindu family. It applies only to Hindus and the others as specified in section Section 2 of this Act. It is important to not that a male Hindu who was governed by the Marumakattayam, Namboodiri, Aliyasantana laws would also have to follow this Act in case of intestate succession. This Act also applies to Sikhs, Jains and Buddhists for this case.
Properties that can be passed on through intestate succession are the ones that have not already been disposed off through a Will. Given are what can be considered as property under this Act for the purpose of disposal after death,
- A property acquired by the individual whether as salary or profit or any other kind of individual income or prize won.
- Property bestowed on the deceased through a gift or Will..
- Property inherited by him from any relative.
- Undivided share of a Mitakshara and Dayabhaga coparcener.
- Property acquired through partition in the case of absence or sons or daughters.
Section 8 of the Act states that when a male Hindu dies intestate, his property is passed on to his heirs specified in Class I of the schedule. Upon the absence all the class I heirs, it is passed on to the heirs in Class II. When the class II heirs are also unavailable for the inheritance, it is passed on to the heirs in Class III in whose absence it will go to Class IV heirs.
Let us analyse the classes of heirs given in the Act and how in each case, the property is distributed among them.
- Predeceased son’s son, daughter, widow,
- Predeceased daughter’s son, daughter,
- predeceased son of a predeceased son’s daughter, son,
- predeceased daughter of a predeceased daughter’s son, daughter,
- daughter of a predeceased son of a daughter, and
- daughter of a predeceased daughter of a son.
The widow of the intestate takes one share in the property. When there is more than one widow, all of them together take one share. The son of the intestate is entitled to one share and so is the daughter and mother of the intestate. The grandchildren and great-grandchildren of the predeceased son/s and daughter/s of the intestate shall take one share for all of them collectively. This one share must be distributed among the widows and grandchildren and great-grandchildren equally.
(1) Son’s daughter’s son,
(2)Son’s daughter’s daughter (now also placed in class–I category),
(1) Daughter’s son’s son,
(2) Daughter’s son’s daughter (now also placed in class–I category),
(3) Daughter’s daughter’s son (now also placed in class–I category),
(4)Daughter’s daughter’s daughter (now also placed in class–I category).
V.Father’s father; Father’s mother,
VI.Father’s widow; Brother’s widow,
VII.Father’s brother; Father’s sister,
VIII.Mother’s father; Mother’s mother,
IX.Mother’s brother; Mother’s sister.
As we can see, there are IX entries in this class, each entry having a set of heirs. In the absence of the heirs in entry I, the property will be shared by the heirs in entry II and so on. The preference keeps flowing down from the top. When any one or more in any of the given entries is present, the property will be inherited by the heirs in that entry. It will be shared equally among them.
This class consists of the Agnates of the deceased. Agnates mean the intestate’s relative through a male relative. The great grandson of the intestate through only male line, that is, the intestae’s son’s son’s son is an agnate. Similarly, the intestate’s brother’s son’s son is an aganate. There is no limitation on the degree of the agnate. If an agnate can establish a blood relation with the intestate through an all male chain, then they are entitled to the inheritance. Agnates can be ascendants like father’s father or descendants like son’s son’s son or collaterals like brother’s son’s son.
Class IV –
Cognates are the blood relatives of the intestate through a male an female mixed line. For example, the son of paternal aunt of the deceased is a cognate. The number of male and females in the relative chain is not relevant as it is a cognate even when one person is a female.
Among the agnates and cognates, the general rule of inheritance is that the property goes to the one who has fewer degrees of ascent. For example, when there is a son’s son’s son and a father’s father is present, of these two, the son’s son’s son is preferred. This is because he has no degree of ascent.
Muslim inheritance laws are governed mainly by their customary laws. The source of these personal laws are,
- The holy Quran,
The Muslim Personal Law(Shariah) Application Act, 1937 govern intestate succession. Property as seen in Muslim law does not denotes According to Shariah, there are certain duties to be performed with to a deceased person such as
1. Payment of funeral/burial expenses,
2. Paying off debts of the deceased,
3. Executing the Will of the deceased,
4. The property remaining after meeting the expenses of performing these duties are the inheritable property which has to be distributed among the heirs and others as given in Shariah.
It should be kept in mind that,
- according to personal laws, a Muslim cannot dispose off more than 1/3rd of his property through a Will.
- There are no particular distinction between movable, immovable, corporeal and incorporeal property in Muslim inheritance law. Any property that simply comes under the ownership of the deceased s for inheritance.
- A heir to the property of the deceased is any heir who is living even after the death of the deceased. The heirs do not have a right to the property during the lifetime of the owner. Only on the occasion of the death of the deceased do his heirs get the right to claim inheritance on the property left.
- Absence of Doctrine of representation.
Who shares the inheritable property:
There are usually 12 sharers
4. Daughter/Son of a son
6. Paternal grandfather
8. Paternal grandmother
9. Full sister
10. Consanguine sister
11. Uterine sister
12. Uterine brother
Of all these sharers, the Quran recognises the spouses, sons and daughters and parents of the deceased as the primary heirs. The others are considered as residuaries. This might change according to the case. The property that is remaining after distribution to the heirs will got to the residuaries.
Distribution of property:
Per-capita: This type of distribution is followed by the sunni sect of Muslims. In this method, the property is simply equally distributed among the heirs. The main thing to consider here is the question of who is heir. Once a person is recognised as a heir he will be counted in. Hence, the individual’s share in the distributable property is determined by the number of heirs to it.
Per-strip: The Shia sect of Muslims follow this type of distribution. Here, the property is not distributed equally. Instead, it depends on the ascending line of a person. For example, the son’s sons of the deceased will get and equal share in his father’s share instead of the property’s. Consider this situation, A dies leaving behind a property which is to be distributed in 1/4 among his four children. The children of these four children, eventhough they are heirs too, will get have to divide only the 1/4th inherited by their parent among themselves.
Christian Intestate Succession:
Christian inheritance is governed mainly by the Indian Succession Act, 1925 as well as christian customary laws. Indian christians as per the mentioned Act refers to christians who have a pure asiatic bloodline, that is, ones who belong to Asia.
Under the Act, a christian intestate’s widow and children both son and daughter, and their grandchildren inherit the property equally. He, however, has the right off dispose his property (even fully) through a Will. In case of disposal of a part of the property through Will, the remaining will be inherited by the heirs. When the widow of the intestate is alive, she can inherit 1/3rd of the property and the 2/3rd will go to their children. When there is no lineal descendant, nor a parent or sibling present to inherit the intestate property, it will go to his relatives of the nearest degree.
The Indian Succession Act, 1925:
This Act also sets out the rules on Intestate succession to whomever it applies. When a person dies leaving his widow and lineal descendants (sons, daughters and their lineal grandchildren) one-third of it shall go to the widow and rest is to be shared among the others equally. In the absence of any lineal descendants, one half of the property goes to the widow and the rest will be equally shared among his kindred. In absence of lineal descendants as well as kindred, the whole property will go to the widow.
In India, under The Indian Succession Act, 1925, a certificate of succession is issued. This certificate ensures that the heirs of the deceased inherit their assets and debts and securities. It is adviced to everyone that they get this certificate issued as it helps as an evidence to legitimate succession in the future.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje