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Inheritance laws in India hold major significance as it not only protects the birth rights to be a successor but also safeguards this conception of lineage in the Indian society. For this reason, understanding the succession laws and their various areas of complexity is pivotal. This would help legal successors of any properties to avoid litigations or legal harassment, family commotions and other fraudulent activities.
Inheritance laws are also legally termed as succession laws in India. Different communities have their own succession law that protects the right to acquire property by a legitimate heir either through will or death. In this context, various aspects of India’s Property Inheritance Law are explained for clear understanding:
This concept of inheritance can be understood as the transfer or passing on properties, titles, debts and rights to a legal successor after the demise of a legitimate owner. The law governing inheritance in India is the Indian Succession Act, 1925. According to this Act, property inheritance occurs in two different ways with separate governing laws:
In this context of Indian laws, an intestate is a legitimate owner of some properties and assets and has died without making a will. Personal Inheritance laws are applicable in this scenario and are separately governed by the Hindu Succession Act, 1956 and the Muslim Personal Laws Application Act.
Under this Act, a property owner prepares a will revealing all information about his successor and to whom all his properties will be transferred. In this will, an owner can add any person, irrespective of whether there is any blood relation, to pass on his property.
Section 2(h) of the Indian Succession Act, 1925 states the definition of will – "which means the legal declaration of the testator's intention concerning his property which he desires to be carried into effect after his death".
The governing property distribution law in India has divided property into two types:
Ancestral Property: A property of more than three generations that is inherited by deceased owners and then passed on to their heirs by birth.
Self-Acquired Property: The properties that are not passed on through generations but acquired or purchased in their lifetime.
It is essential to know all the intricacies of Hindu Inheritance Law and Muslim Inheritance Law to comprehend different aspects of how property inheritance actually works.
The Hindu Inheritance law is governed by the Hindu Succession Act, 1956. This Act does not apply to any property succession, which is regulated by the Indian Succession Act, 1925. Moreover, this Act applies to the whole of India, excluding Jammu and Kashmir.
As Section 2 (1) of the Hindu Succession Act of 1956 quotes, this Act applies to –
This Act specifies a different class of successors of a demised owner of his/her property and various portions of shares of this property to be obtained by these successors.
Property inheritance under the Hindu law is divided into the following:
There are certain provisions related to the distribution of property, and they are listed below:
Under the Hindu Succession (Amendment) Act, 2005, there are a different class of heirs:
The following Class I heirs are as follows:
Class |
Legal Heirs |
Class I |
Mother |
Son |
|
Daughter |
|
Wife (widow) |
|
Daughter of the deceased son |
|
Daughter of the deceased daughter |
|
Wife (widow) of the deceased son |
|
Daughter of a predeceased son of a predeceased son |
|
Wife (widow) of a predeceased son of a predeceased son |
|
Son of a deceased daughter |
|
Son of a deceased son |
|
Moreover, son of a predeceased son of a predeceased son is also included |
The following Class II heirs are as follows:
Class |
Legal Heirs |
Class II |
Father |
Grand Children |
|
Grand Parents |
|
Brother |
|
Sister |
|
Other relatives |
In addition to this, some of the important terms in relation to legal heirs in Hindu Succession laws are agnates and cognates.
Here are the following ways in which Hindu Personal Laws deal with inheritance:
The Hindu Succession Act, 1956 defines every male member of the Hindu Undivided family belonging to the same lineage as called coparcener. Under the Hindu Inheritance Laws in India, after the demise of coparceners of a Hindu Undivided Family who is not the Karta or head of the family, there will be no immediately calling for a settlement of successions unless other coparceners demand it.
Moreover, this Act states that in an ancestral or property of a joint family, the wife of a deceased will have no rights; however, there will be equal rights for both son and daughter of the deceased. On the other hand, in terms of a self-acquired property of a deceased, the wife, son and daughter will have rights to all assets if a deceased has not stated otherwise in his will.
However, the Hindu Succession Amendment Act, 2005, was passed to eliminate the provisions of gender discrimination in the Hindu Succession Act, 1956. Under this amended Act, a coparcener’s daughter will become a coparcener from birth in her own right, similarly to a son.
There are four sources of the Islamic law that constitutes the Muslim law of succession: the Holy Quran, the Sunnah, the Ijma and the Qiya. The division of a deceased’s property will occur among sharers and residuaries. The Islamic law for property distribution does not distinguish between ancestral property and self-acquired property when it comes to succession.
As per the Muslim Personal Law (Shariat) Application Act, 1937, a property will get transferred to an heir after an owner's death. This states that there is no birthright to acquire the property of heirs to their ancestors. The conduction of property distribution is taking place in two ways:
The governing Christian law of inheritance in India is from Sections 31 to 49 of the Indian Succession Act, 1925. Under this Act, both husband and wife of a deceased, respectively, are liable to half of the property if they have no children. If there are children, the entitlement will be one-third.
Some other notable points to consider in Christian property inheritance law in India are as follows:
From Section 50 to 56 of the Indian Succession Act, 1925, the property inheritance laws include Parsis, which is to a point similar to the Christian laws. The law does not separate the rights of son and daughter in terms of inheritance. However, a few key specifications that make Parsi inheritance law different are:
Under the Indian Succession Act, 1925, the son and daughter have equal rights over the property of their parents unless otherwise stated in the will.
A child born after his/her father's death is eligible to inherit property from his/her father. In a HUF, the son being a coparcener, holds the right by birth to acquire ancestral property.
A legally adopted child holds similar rights to a biologically born child as per the law.
Upon adoption, the biological parents lose the rights of that child. However, if there is any stating about the inheritance of property from biological parents, the child will be the rightful heir.
According to the succession laws in India, the son holds the right since his birth on his grandfather’s and father’s property. Like his father, a son has the right to their ancestral property. If an individual owns a self-acquired or ancestral property and dies without creating a will, then his mother, grandmother, sister, son and brother will share equivalent succession rights in his property.
A widow is a class I legal heir and has the right to the self-acquired property or properties of her husband. However, she does not hold the right to the ancestral property of her husband. A widowed mother also holds the right to the property of her son.
Before 2005, the share of the property was only provided to unmarried daughters. However, this rule was amended, and the duties and rights of a son were equally granted to daughters.
The Supreme Court of India passed a judgement in the Vidyadhari v/s Sukhrana Bai case in 2008, where it acknowledged the child born in live-in-relationship as legal heir. It further granted him or her the inheritance right.
Both granddaughter and grandson enjoy rights in their grandfather’s ancestral property, like their father. However, a grandson has the right to his grandfather’s separate or self-acquired property only when his father is deceased before his grandfather.
As per the Indian Succession Act, 1925, the will of testaments holds significant importance as it denotes the will of a person. In this testament, he/she mentions a name or number of names of the people who will acquire his property, assets, rights and obligations. The copy of a Will is called probate and acts as official evidence under a seal of the competent Court. In a probate proceeding after the testator's demise, the validity of the will is verified under the inheritance laws of India.
Mentioned below are the following documents required for a legal heir certificate:
According to this Act, the viability of this will is justified if a testator was a competent person with mental soundness and is not minor. Considering all factors mentioned in the will, the Court ensures there isn't a fraudulent purpose or partial clause.
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