INTRODUCTION:
Inheritance
Inheritance can very loosely be defined as the property given to a descendant upon the death of a relative. Right of Inheritance is devolution of the property, titles, debts, rights, and obligations to another person on the death of an individual. Lack of knowledge about inheritance rights in India is the primary cause of family partition and it becomes important to understand what the right of inheritance of legal heirs in India is.
Types of Property that can be inherited
The various types of Property that can be inherited are
- Ancestral Property – This can be defined as the property which was inherited by the deceased through 3 generations or more.
- Self-Acquired Property- This shall include the property which the deceased had purchased or acquired in his/ her lifetime.
A person can succeed to or inherit one’s property in two ways:
By a will (Testamentary Succession)- The person who makes the will is known as the testator and the person in whose favour the will is made is called the legatee.
Through laws of Intestate Succession- In case a person dies without making a will then his property is devolved among his heirs through the laws of intestate succession.
Indian law about property rights of women
India doesn’t have a Uniform Civil Code, which means the law in matters pertaining to inheritance and sharing of property differs for people from different faiths. The two important laws in regard to property share are the Hindu Succession Act, 2005 and the Indian Succession Act, 1925.
Two legal terms: testamentary and intestate. A registered will plays a significant role in testamentary succession; it supersedes all laws. For example, if a father legally bequeaths the whole of his property to his son through a will, that is final. Just like in the 2019 mystery film Knives Out, the owner of the property can leave it to a complete stranger, who is not his kin and kith.
An intestate person is one who dies without writing a will. In that case, the property is divided equally between all his children irrespective of gender, according to the above-mentioned laws.
- The Hindu Succession act, 2005: Applies to cases without a will i.e., intestate Hindus, Sikhs, Buddhists and Jains.
- The Indian Succession Act, 1925: Transfer of property of Hindus and Muslims by a will (testamentary succession), Christians, Parsis and Jews are governed by The Indian Succession Act.
- Muslim Personal Law (Shariat) Application Act, 1937: Applies if there is no registered will. Muslims rely on laws of the sect they belong to.
Inheritance under Hindu Personal Laws
The Hindu Succession Act is applicable to Hindus, Jains, Buddhists, and Sikhs. It takes into consideration that the deceased shall have a different class of heirs and such different classes shall have different stakes over the property. These classes are,
Class I Heirs:
- Widow
- Son
- Daughter
- Mother of the intestate
- The heirs of pre-deceased children of the intestate (which shall include the widow, sons, daughters of the predeceased children as well)
Class II Heirs:
- Father
- Grand Parents
- Grand Children
- Brother
- Sister
- Other relatives
Agnates: These are the blood relations to the deceased through males. For example, bother’s son, brother’s daughter, son’s son, etc.
Cognates: These are the blood relations to the deceased through females. For example, sister’s son, sister’s daughter, daughter’s son, etc.
In the case where a Hindu male passes away the following shall take place
- The Class I heirs get equal shares
- In case of no Class I heirs, it shall be equally divided amongst Class II heirs
- In case of no Class I or Class II Heirs the property shall be divided amongst the Agnates and then the Cognates.
- If none of the above-mentioned heirs exist, then the property shall pass on to the Government and this is known as Escheat.
In case a Hindu Female passes away the property shall be divided amongst
- First her children and husband
- Then among her husband’s heirs
- Then among her father and mother
- Then among her father’s heirs
- Then among her mother’s heirs
Division to the Heirs
Class I Heirs
| Type | Share |
|---|---|
| Son, Daughter, and Mother | One share each |
| Widower | One share |
| Heirs of the predeceased son or predeceased daughter | Same share that their parent would’ve received |
Class II Heirs
It is important to know that Class II Heirs do not get equal representation and that the heir in an earlier category shall exclude the heirs in the subsequent category. All the persons in one category shall have equal representation.
| Category | Heir |
|---|---|
| I | Father |
| II | Son’s Daughter’s SonSon’s Daughter’s DaughterSisterBrother |
| III | Daughter’s Son’s Son Daughter’s Son’s Daughter Daughter’s Daughter’s Son Daughter’s Daughter’s Daughter |
| IV | Brother’s Son. Brother’s Daughter Sister’s Son Sister’s Daughter |
| V | Father’s Father Father’s Mother |
| VI | Father’s Widow [Stepmother] Brother’s Widow |
| VII | Father’s Brother Father’s Sister |
| VIII | Mother’s Father Mother’s Mother |
| IX | Mother’s Brother Mother’s Sister |
Division of Property in case of death of a coparcener of a Hindu Undivided Family
According to Section 6 of the Hindu Succession Act, 1956, upon the death of a coparcener, there is no automatic partition but the same can be brought in terms of a deemed partition for the purpose of succession. Such a division can be called in by any Coparcener.
It is pertinent to note that in terms of Section 6 of the Hindu Succession Act, there shall be the distribution of property to the heirs via succession and not to the Coparceners of a Hindu Undivided Family if there exists a surviving male or female relative who is a Class I heir.
| Property type | Wife | Daughter | Son | Right |
|---|---|---|---|---|
| Ancestral/joint family property | No right | yes | yes | Both son and daughter have equal rights |
| Father’s separate/self-acquired property while he is living | No | No | Father can bequeath the property by will or gift | |
| Father’s separate/self-acquired property | yes | Yes | Yes | They have equal rights if the father has not written a will |
How is inheritance dealt with under Muslim Personal Laws?
Under Muslim Personal Laws, Inheritance is dealt with in 2 manners; Per Capita Distribution (Shia), Per Strip Distribution (Sunni). There is no differentiation between Self Acquired and Ancestral Property under Muslim Inheritance. This can be better understood here
| Widow (if children are there) | 1/8th share |
| Childless Widow | 1/4th share |
| Son | Double the share of the daughters |
| Only one Daughter | ½ of the property |
| Widower (If there are no children) | 1/2 share |
| Widower (if there are children) | 1/4th share |
| Share of daughters if more than one daughter | 2/3rd of the property |
Mode of distribution
| Basis | Per Capita | Per Strip |
|---|---|---|
| Recognition | Shia Law | Sunni Law |
| Mode of distribution | Equal to all heirs | Share is calculated depending on the branch |
How is Christian and Parsi’s inheritance dealt with under the Indian Succession Act?
Under the Indian Succession Act, inheritance is dealt with for the Christians under section 31 to 49 and for Parsis from Section 50-56. It is pertinent to note that there is no distinction between the rights of the widow and the rights of the widower for intestate succession.
Christian Inheritance (Non-Testamentary)
| Section | Relation | Share |
|---|---|---|
| 33, 33A, 34, 35 | Widow or Widower with lineal descendants | 1/3rd share |
| 33, 33A, 34, 35 | Widow or Widower without Lineal Descendants but with other of kin | ½ share |
| 33, 33A, 34, 35 | Widow or Widower without Lineal Descendants and without other of kin | Full share |
| 36-40 | Linear Descendants while widow or widower is alive | 2/3rd share with equal distribution |
| 36-40 | Linear Descendant while widow or widower is not alive | Full share with equal distribution |
| 48 | Relatives if no lineal descendant or parents or siblings | Full share |
Rules for Division of property for Parsis
| 1 | Son | Widow | Daughter | Equal shares | (s.51) |
| No widow | Son | Daughter | Equal shares | ||
| Father/ Mother or both and widow | Son | Daughter | Widow, son, and daughter get equal, and each parent gets half the share of each child. | ||
| 2 | If an intestate die leaving a deceased son | Widow and children take shares as if he had died immediately after the intestate’s death | (s.53) | ||
| If an intestate die leaving a deceased daughter | The share of the daughter is divided equally among her children | ||||
| If any child of such deceased child has also died | Then his/her share shall also be divided in like manner in accordance with the rules applicable to the predeceased son or daughter | ||||
| Remoter lineal descendant has died | Provisions set out in the box immediately above shall apply mutatis mutandis to the division of any share to which he or she would be entitled to | ||||
| 3 | intestate dies without lineal descendants and leaving a widow or widower but no widow or widower of any lineal descendants | Widow or widower (1/2) And residue as below* | (s.54) | ||
| intestate dies leaving a widow or widower and also widow or widower of lineal descendants | Widow or widower (1/3) Widow or widower of lineal descendant (1/3) Residue as below* | ||||
| intestate dies without leaving a widow or widower but leaves one widow or widower of a lineal descendant | The widow or widower of the lineal descendant (1/3) Residue as below* | ||||
| intestate dies without leaving a widow or widower but leaves more than one widow or widower of lineal descendants | The widows or widowers of the lineal descendants together (2/3) in equal shares Residue as below * | ||||
| *Residue after division as above | Residue amongst relatives in Schedule II Part I | ||||
| If no relatives entitled to the residue | The whole shall be distributed in proportion to the shares specified among the persons entitled to receive shares under this section. | ||||
| 4 | Neither lineal descendants nor a widow or widower, nor a widow or widower of any lineal descendant | The next-of-kin, in the order set forth in Part II of Schedule II (where the next-of-kin standing first is given priority to those standing second), shall be entitled to succeed to the whole of the property of the intestate. | (s.55) | ||
| 5 | No relative entitled to succeed under the other provisions of Chapter 3 of Part V, of which a Parsi has died intestate | The property shall be equally divided among those of the intestate’s relatives who are in the nearest degree of kindred to him. | (s.56) | ||
Rights of the women in terms of inheritance and succession laws in India
One of the major concerns that have arisen out of these personal laws is that there are unequal rights given to women. This stems off from the understanding that most of these personal laws are archaic in nature and need to be amended to a certain extent.
The most notable amendment was to the Hindu Succession Act in 2005 which gave daughters equal rights as sons in terms of them being a coparcenary and in terms of succession. Until 2005, the property rights of son and daughter were different.
Only an unmarried daughter had a right in the ancestral property. But post-2005, a daughter has similar rights and duties that a son has. She has an equal right/share in the ancestral property. In the case of the father’s self-acquired or separate property, if the father dies without leaving behind a will, the daughter being a Class I heir will have equal rights with her mother, grandmother, and sister or brother.
There are still certain instances where women are not provided the same rights as men. Under Muslim Law, women do not have the same rights as men and tend to have a lesser share on the property than their husbands.
In terms of Christian inheritance, we, however, see that there is no such gender bias and women have the same rights as men do.
Conclusion
Upon the death of a person, before dividing the property, the successors must be sure that no debt is attached to the property. Once succession to the property is confirmed, the heir must apply for mutation of property in his own name. Mutation updates the government records and doesn’t act as a transfer of title. Once the property is acquired, then one can reside in, lend or sell the property.