An Insight into Inheritance of Property Rights under Indian Succession Laws Part I

                   An Insight into Inheritance of Property Rights under Indian Succession  Laws 

                                                                            Part I

By SangsLegal

2nd December 2023

Hindu succession laws govern the distribution of property among individuals belonging to the Hindu community. These laws have evolved over time to ensure equitable rights and share of property among family members .The Hindu Succession Act, 1956, serves as the primary legislation governing the succession of property among Hindus, Buddhists, Jains, and Sikhs. The Act provides a comprehensive framework for inheritance, covering various aspects such as intestate succession, testamentary succession, and coparcenary rights.

  I.    Coparcenary Rights

The Mitakshara School acknowledges two methods of property transfer: through survivorship and succession. Under the principle of survivorship, coparcenary property is passed on, whereas succession applies to an individual's separate or self-acquired property.

Before the enactment of the Hindu Succession (Amendment) Act, 2005, only male members within a Hindu joint family could claim coparcenary rights. Coparcenary, a concept unique to Hindu law, granted equal right over ancestral property to all male descendants of the same clan, with the eldest male member acting as the head. However, the 2005 Amendment made revolutionary changes by conferring equal coparcenary rights to both daughters and sons.

       II.  Types of Properties and Inheritance Rules

       A.  Ancestral Property:

Ancestral property refers to property that is inherited through successive generations and is passed down from one's male ancestors. The right to ancestral property is acquired by birth, meaning that children have an absolute share in it.

Joint Hindu Family: An ancestral property is held by the members of the joint Hindu family. It is the collective property in which all members possess an undivided interest.

Equal Coparcenary Rights: Both male and female descendants of up to four generations have an equal right to inherit this property.

Mitakshara and Dayabhaga: The Mitakshara school of law governs the rules of ancestral property in most parts of India, while the Dayabhaga school is followed in Bengal and applies different principles.

Right of Survivorship: In ancestral property, upon the death of a coparcener, the surviving coparceners automatically inherit the deceased's share. Any coparcener can demand partition of the property to claim and possess their respective share.

Mitigation of Disabilities: The Act also removed the gender-based distinction between "son" and "daughter," eliminating the earlier concept of limited ownership for women.

 B. Self-Acquired Property

Any property acquired by a coparcener through his/her own efforts is treated as self-acquired and can be alienated or bequeathed freely. It refers to assets or wealth acquired by an individual through personal efforts, such as inheritance, purchase, gift, or profession. Here the owner has an exclusive ownership and absolute right to use, alienate, or bequeath it according to their discretion.

Exceptions: There are certain legal restrictions on alienation in cases like gifts with conditional clauses, religious endowments, or property with encumbrances

III.     Types of Succession

Under Hindu succession laws, there are two types of succession: Testamentary and Intestate.

         A. Testamentary Succession

Testamentary succession comes into play when an individual creates a will, thereby disposing of their property according to their wishes after death. The will should be executed with proper legal formalities and should clearly state the disposition of the property. In cases where a valid will exists, the property is distributed as per the testator's intentions, ensuring that the provisions of the will are duly fulfilled. The testator can bequeath their property to any person, including family members, relatives, friends, charitable organizations, or even non-Hindus.

If the testator does not specifically name beneficiaries, the property will be distributed according to the general provisions of the Hindu Succession Act.

        B.  Intestate Succession

Intestate succession occurs when a person dies without leaving a valid will. In such cases, the distribution of property is governed by the laws of intestate succession. The Hindu Succession Act, 1956, provides clear guidelines to ensure that eligible family members receive their rightful share.

Legal Heir: If a person dies without a will, their self-acquired property is distributed among legal heirs according to the provisions mentioned under the Hindu Succession Act.

Succession among Class I Heirs: If the deceased has neither left behind a will, nor any Class II heirs, the property is divided among Class I heirs. The Act provides an exhaustive list of Class I heirs, including sons, daughters, widows, mothers, etc.

Succession among Class II Heirs: In the absence of Class I heirs, the property passes on to Class II heirs, as per the order of succession mentioned in the Act.

Agnates and Cognates: In the absence of all Class I and Class II heirs, the property may devolve to distant relatives called agnates and cognates.

Escheat: If no legal heirs are found, the self-acquired property may escheat to the State.

        C.   Succession Intestate and Succession under a Will

Testamentary succession under a will takes precedence over intestate succession, where the property is distributed according to the statutory provisions of the Hindu Succession Act.

Revocation and Alteration:

The testator reserves the right to revoke or alter a will during their lifetime. This can be done by executing a subsequent will or through a codicil, which is an amendment to the original will. Revocation can also occur by destroying the will with the intention of cancelling its effect.

Probate and Succession Certificate:

Probate is the formal legal procedure for validating a will and ensuring its authenticity. The court grants probate after verifying the execution of the will and the validity of its contents.

In cases where the will is not probated, the legal heirs may obtain a succession certificate from the court to establish their right to inherit the deceased's property.

To which properties does this Act not apply?

Any property that falls under the governance of the Indian Succession Act, 1925 due to the provision stated in Section 21 of the Special Marriage Act, 1954. According to Section 21 of the Special Marriage Act, the Special Marriage Act determines the succession of any individual's property whose marriage is solemnized under this Act, as well as the property of their offspring.

Right of an unborn child

The Act acknowledges the entitlement of a child in the mother's womb to inherit property as well According to this provision, an unborn child within a woman's womb would possess the right to inherit property, provided they are born before the individual dies without a valid will.

 D.  Disqualification

The Act abolished any exclusion due to physical deformities, mental capabilities, or morals, and established a fresh set of disqualifications. Consequently, following the amendment, the classification of disqualification for heirs has been modified to,

1. Disqualification because of homicide : A murderer is not eligible to inherit the victim's property, according to Section 25 of the Act. A person who helps or abets in such a crime is likewise considered a murderer under this section.

2.Disqualification as a result of conversion :A person who converts from the Hindu religion to any other religion is ineligible under Section 26 of the Act, as are his offspring born after the conversion. His descendants can only inherit if they are Hindus at the time of succession.

Indian succession laws have undergone significant changes in recent years, aimed at providing a more rationalized and uniform approach to the distribution of assets after an individual's death.For example,the provisions of Hindu succession laws, in conjunction with the 2005 Amendment, have sought to bridge the gender gap by granting equal coparcenary rights to both daughters and sons. The evolving nature of these laws, supported by landmark judgments like Prakash v. Phulavati and Danamma v. Amar, have paved the way for a more inclusive and equitable approach to succession within the Hindu community.

                                         (The exploration of recent developments in succession laws will be continued in part II of this blog....... )