Understanding the Inheritance Laws in India

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. It is governed by The Indian Succession Act, 1925. 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: The Indian Succession Act, 1925 are explained for clear understanding.

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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:

1. Laws of Intestate Succession

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.

2. Will or Testaments Under the Indian Succession Act of 1925

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".

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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.
• Gifted Property: Property inherited by gift or will from a paternal ancestor or any other party, accretion of wealth or property or shares allotted on partition.

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.

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Know more about Property Insurance by Digit.

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 –

• To any person who is a Hindu by religion in any of its form or developments, including Virashaiva, a Lingayat, or a follower of the Brahmo, Prarthana or Arya Samaj
• To any person who is a Buddhist, Jain or Sikh by religion, and
• Any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu Law or by any other custom

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.

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Property Inheritance Under Hindu Law

Property inheritance under the Hindu law is divided into the following:

• Testamentary Succession: In this process, the property is distributed when an individual dies by making a will.
• Intestate Succession: This process involves the distribution of property by the Operation of Law when an individual dies without making a will.

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Property Distribution

There are certain provisions related to the distribution of property, and they are listed below:

• Property Division When Father Dies Intestate: The first division occurs among class I legal heirs. Amidst the absence of class I legal heirs, then the division happens between class II legal heirs. If both these legal heir classes are absent, then division happens among agnates of the deceased, and if they are not present then among the cognates. 
• Property Division When Mother Dies Intestate: Under this circumstance, the property division happens among sons, daughters and husbands. The second property division happens among heirs of husbands. In the third property division,  the father and mother of the deceased are involved. The fourth division of property happens among the heirs of the father. Finally,  the fifth property division occurs among heirs of the mother.

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Here are the following ways in which Hindu Personal Laws deal with inheritance:

• Upon demise of a Hindu male, the inheritance of property is made, which is 
  • Equal shares among Class I heirs
  • In absence of any Class I heirs, the property will be equally divided among the Class II heirs.
  • In absence of both Class I & II heirs, the property will be equally divided into the agnates and cognates. 
  • When there is no legal heir to a property, the same will be taken over by the Government of India. This process is known as Escheat.
• Upon demise of a Hindu female, the inheritance of property is made, which is
  • First preference will go to her children and husband.
  • In the absence of her children and husband, it will be divided into the husband's successor.
  • When there is no successor to the husband, this property will be inherited by her father and mother.

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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.

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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: 

• Per Capita Distribution (Sunni Law): Under this method, the distribution of a deceased’s property will happen equally among his heirs. 
• Per Strip Distribution (Shia Law): Under this method, the distribution of a deceased's property takes place on strips or portions to which his heirs belong. This means that the quantum of a property inheritance solely depends upon the number of heirs there in a branch. For Muslim women, the respective inheritance laws of India state that one-fourth of the share of a property will get transferred to the widow if she has no child. On the other hand, she is eligible for a one-eighth share if she has children. Similarly, a widower gets half of a deceased's property if there are no children and one-fourth of this property if they have children. Under the Muslim inheritance laws, a deceased's son receives double the share than his daughters, and one of the daughters receives half of it.

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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: 

• Widows and widowers can inherit an entire property of a deceased if there are no children, relatives or other legal heirs. 
• Children of a deceased get two-thirds of the property in the spouse's presence. 
• The distribution of a whole deceased’s property will occur among his/her children in absence of the spouse.

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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:

• The widow, son and daughter of a deceased are eligible for equal shares. On other hand, a deceased's parents receive half of every child’s entitlement.
• In case of a predeceased son, the widow and children get the inheritance.
• In case of a predeceased daughter, the division of inheritance will take place among her children.

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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.

1. Rights of Children

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.

2. Rights of Widow

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.

3. Rights of Daughters

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.

4. Right of Child Born in Live-in relationship

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.

5. Rights of Grandchildren

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.

6. Role of a Will in Succession Laws

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 people, the 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.

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Mentioned below are the following documents required for a legal heir certificate:

• Signed application form
• Identity / address proof of the applicant
• Name and death certificate of the deceased person
• The name and relationship of the applicant with the deceased person
• A self undertaking affidavit
• Address proof of the deceased

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.