Login

Register

Login

Register

  +0120-4226133

  contact@schooloflegaleducation.com

Cart

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 compl

ex and sensitive issue. And hence, there are different set of succession laws prevailing in the country pertaining to various communities.

The chart below shall provide clarity on it:

Death of a Person
Without making a Will
Hindu, Jain, Sikh, Buddhist Hindu Succession Act, 1956
Christian, Parsi, Jew Indian Succession Act, 1925
Muslim Muslim Personal Law Application Act, 1937
Interfaith marriages Special marriage Act, 1954

 

Death of a Person
After Making a Will
Hindu, Jain, Sikh, Buddhist Hindu Succession Act, 1925
Christian, Parsi, Jew Indian Succession Act, 1925
Muslim Muslim Personal Law Application Act, 1937
Interfaith marriages Special marriage Act, 1954

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.
A Hindu Male
Married Unmarried
Wife, Son, daughter, Mother Mother

 

  • 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.