FAMILY LAW- SUCCESSION AND INHERITANCE

ABSTRACT

Inheritance is a symbol of lineage in our Indian Society. Inheritance and Succession are complex and multi-faceted. This article delves into the intricate realms of succession and inheritance, exploring the legal, social, and economic implications of transferring wealth, property, and power across generations. This article basically examines the tensions between testamentary freedom and state-imposed inheritance laws as well as the impact of family dynamics on the distribution of assets. This article investigates how gender, race and class disparities influence inheritance patterns, and how intestacy and will contests can affect family relationships. Furthermore, the role of trusts, wills, and estate planning in shaping succession outcomes is critically analyzed. Through this examination, the article reveals the complexities and challenges inherent in succession and inheritance, arguing for a more nuanced understanding of the intersections between law, family, and power, and highlighting the need for reform and adaptation in response to changing social norms and demographic shifts.

Key points: Succession and inheritance are complex and multifaceted, with a tension existing between individual freedom to dispose of assets and state-imposed inheritance laws. Family dynamics and relationships significantly impact the distribution of assets, while social factors like gender, race, and class also influence inheritance patterns. Additionally, intestacy and will contests can have far-reaching effects on family relationships. The use of estate planning tools like trusts and wills shapes succession outcomes, highlighting the need for a nuanced understanding of the intersections between law, family, and power. Ultimately, reform and adaptation are necessary to address the changing social norms and demographic shifts that impact succession and inheritance.

INTRODUCTION: INHERITANCE AND SUCCESSION

Inheritance and Succession refers to a process through which property rights are legally transferred from one person to another upon the demise of the property holder.[1] It revolves around certain rules and procedures encompassing distribution of assets, debts and other legal belongings of the deceased person among their legal heirs or other beneficiaries. The concept of Inheritance and Succession plays a pivotal role in determining various legal concepts such as family law, property law, and the testamentary will along with intestacy law.

Inheritance Succession refers to the process in which an individual’s heirs receive their property upon their demise, if the decedent fails to leave a will entailing about how their property needs to be distributed and among whom. Inheritance succession does not generally pose a serious issue in cases involving a will. Those who creates wills generally leave their property to the people you tend to inherit, such as spouses, children, and other close relatives.

Whereas, wills can be legally contested if specific members of the family are deprived of it, also the spouses may file petitions to inherit a share of the deceased person’s estate for the same. This is especially considered to be true that no person can legally exclude their spouses from inheritance. However, wills are usually written generally so that it can be considered and observed being in existence. Due to this, inheritance succession is more likely to become a legal issue in case of no will and a probation lawyer decides who must inherit. In legal terminology, death of a person without leaving a valid will is referred to as intestacy. Each state has its own laws regarding intestacy with a relevance on valid differences between total and partial intestacy. Total intestacy refers to dying with no valid will at all, while partial intestacy involves a will that do not gets deployed to the legal heirs of the deceased person. According to general intestacy laws, the deceased person’s spouse will most likely to have the first priority and the legal right to inherit the property. After that, follows the descendant lineage of the deceased along with their children. In case of no living family members, the deceased person’s property will be transferred to the state. This says that the property will generally go to the state after their death in that state. This rule of Inheritance and Succession is applicable in both Hindu Laws and Muslim Laws.[2]

HISTORICAL BACKGROUND OF INHERITANCE AND SUCCESSION AS PER HINDU SUCCESSION ACT 1956

The ancient Hindu law was based on Smritis which enunciated law of Dharma. The traditional Hindu law of inheritance was patriarchal in nature and inclined towards male species, unlike the Hindu Succession Act, 1956. Two schools of Hindu law, the Dayabhaga School of Law (prevalent in Bengal and Assam) and the Mitakshara School of Law (prevalent all over India except Bengal and Assam), emerged out of various commentaries and digests. These schools were different from each other on the basis of principles following which right to inheritance is determined. These schools were operational and recognised in different parts of India during British regime.[3]

In Dayabhaga, the property goes to the successor (coparcener) on the death of the father or the holder of property whereas in Mitakshara school, the property is inherited by the successors (coparceners) on the mere basis that they got birth in that family. Also, the Mitakshara school gave women less rights to inherit property and was biased against them unlike Dayabhaga which was considered to be more liberal towards the women community.

In order to bring about a change the Hindu Succession Act was enacted and came into force on June 17, 1956 despite stringent resistance from various Hindu communities of the society. Women were ensured various rights, but coparcenary rights were still denied. In 2000, 15^th Law Commission suggested amendments in order to correct the discrimination against women. Finally, in 2005 women were given coparcenary rights which were at par with men.

APPLICATION OF HINDU SUCCESSION ACT, 1956

The applicability under Hindu Succession Act, 1956 lies on Section- 2 (1) of this Act. The Act is applicable to:

• The Act shall extend to the whole territory of Indian Sub-continent.
• Any person, being Hindu by religion in all its applicabilities and developments, including that of a Virashaiva, a Lingayat, or a disciple of the Brahmo, Prarthana or Arya Samaj.
• Any person who is by birth/ a religion transferer, a Buddhist, Jain or Sikh.
• Any other person who doesn’t count as a Muslim, Christian, Parsi, and Jew until it is proven that the person concerned is not governed by Hindu law or Custom.
• The Act is not applicable to any of the members of the Tribal community be it Scheduled Tribes within Article 366 of the Indian Constitution under the meaning of the clause(25) of that Article as per directed by the Central Government by a a notification in the Official Gazette.

TYPES OF SUCCESSION UNDER HINDU LAW:

• Testamentary succession

Testamentary Succession under Hindu Law is defined as the process of distribution of the deceased person’s property as per the terms mentioned in the will or the testament. Under the Hindu Succession Act, 1956 the term testamentary succession simply means to distribute the property of the person after his/her death among the family members, only if he/she dies with a will. This testament/ will can be made by either Hindu men/women for the property, keeping in mind the validity and legal enforceability. Once a will is made, the distribution of property should be according to that will and not through the laws of inheritance. But in case of its distribution, it will be made according to the law of inheritance, if it is found to be invalid and lacks legal enforceability.

• Intestate Succession

Intestate Succession as per Hindu Law means if a person dies without making a will/ a testament it would amount to the term intestate, which further implies that the deceased person’s property would be distributed according to the laws of intestate succeeding of property. This rule of Inheritance is only applicable if a person is legally recognised to be a Hindu or comes under the categorization of Hinduism religion.

 CONCEPT OF INHERITANCE UNDER HINDU LAWS

• The heirs who are related to an intestate by full blood are more preferred than those heirs who are related by half blood to the deceased.

• The relevant terms “Full blood” and “Half blood” have been explained under Section 3 of the Hindu Marriage Act, 1955. The specified term “Full blood” and “Half blood” are defined as two persons one is related to each other by full blood when they are descended from a common ancestor by the same wife whereas, in case of half blood when they are descended from a common ancestor but by different wives.
• Two or more heirs succeed together to the property of an intestate.They should take the property under certain criterias: (a) Per capita; (b) Tenants-in-common, not as joint tenants.

• In case of joint property holder, it must be held by the owners either as tenants-in-common or as joint tenants. In case of tenants-in-common, upon the death of one of them, his/her share would pass on to their heirs whereas in case of joint tenants, upon death of one of them, then on such situation the heirs would get nothing. The shares would remain with the remaining joint owner(s).
• The right of a child born alive and that of the child who is in the mother’s womb, have equal rights over the inheritance of the property of the intestate as if he/she has been born at the time of the death of the intestate.

All these sub-sections covers under Section 21 of the Hindu Succession Act, 1956, where it is presumed the younger survives the elder person in the family for the sake of Succession and Inheritance of property. In the landmark case relating to the Succession of Hindus, K Laxmanan v. Thekkayil Padmini & Ors, it was observed that the burden of proof is under the propounder. He was under an obligation to prove legality and genuineness of the will by proving that there is no suspicious content withheld within it including the testamentary components and that the signature of the testator is valid or not.

CONCEPT OF INHERITANCE UNDER MUSLIM LAW

The Muslim Law of Succession constitute of four sources of laws of Islamic origin such as :

• The Holy Quran
• The Sunna
• The Ijma
• The Qiya

Muslim law consists of two types of legal heirs: (i) Sharers and (ii) Residuary, respectively. Sharers are the ones who are destined to share a certain amount of property of the deceased person, whereas Residuaries are being given with the left over portion of the property which remains. Certain regulations amounting to the distribution of the property of the deceased among the family members according to the Islamic Inheritance laws that is being deep rooted within the teachings of the Quran and that of the teachings of Prophet Muhammad. The Court are of the view that the Muslims as being stated, are against the concept of joint family and does not follow it with a reference to the case of Abdul Raheem v. Land Acquisition Officer (1989), where it is proven that after the death of a Muslim member, their whole estate, comprising of its rights and interests relating to it loses its existence and vests upon others.[4]

The calculated inheritance shares are summarized:

1. Not all the Muslims have the birth right to an inheritance. A person if wants to inherit have to survive for a longer period of time until the death of the deceased to get the power over his property.
2. The mother carrying its baby in the womb has the right to inherit the property after it is born safe and sound in this world alive excluding those who are yet to be born in this world.
3. There is an equivalent share of the property right between a men and a women, although there is a mere partiality in distributing equal number of shares between a men and a women where women tends to get less number of shares as compared to men.
4. In the contract of marriage it is being vowed that both men and women have equality of rights to inherit from one another.
5. A widow receives 1/8^th of her husband’s inheritance assets in case she has children and grandchildren. In case a marriage takes place while the husband being sick or any illness and passes away before the marriage is concluded, then the women is not entitled to his property anymore and loses her inheritance rights. However, in case of her spouse divorces her before his death she still has the right to inherit his property until her remarriage.

6. In the matter of inheritance, first preference/priority is given to the deceased person’s ancestors much more than that of his offspring.
7. Two different heirs are recognised in the Islamic Inheritance i.e. Sharers and Residuaries. Sharers are entitled to share a certain portion of share of the deceased person’s inheritance as per the Quranic rule of Inheritance. Whereas, the Residuaries receive the remaining amount of shares.
8. In the case of Shia and Sunni muslims, they both inherit these laws regarding properties to be distributed, resulting in differentiation in the laws of inheritance.

CONCLUSION

The laws of succession and inheritance in both the Hindu and Muslim traditions share both similarities and significant differences among them. Both traditions aims to protect the rights of family members and ensure the orderly and lawful transfer of property but differs in their approaches and specific regulations. Hindu laws are usually based on the caste system and the importance of the joint family, whereas Muslim are against the  concept of joint family and are guided by the principles of Sharia and the equality of the heirs. Understanding and addressing these crucial differences would further help in proclaiming the complexities of succession and inheritance in India and other multi-religious contexts. By recognising and respecting both the religions and their legal traditions, we can promote harmony and justice in resolving succession and inheritance disputes which arises in the forefront.[5]

REFERENCES:

[1] Chitransh Johari, ‘What is Inheritance and Succession?’ (2024) Geeks for Geeks https://www.geeksforgeeks.org/what-is-inheritance-and-succession/  accessed 8 September 2024

[2] Katie Hamblen, ‘Inheritance Succession laws’ (2022) LegalMatch Legal Writer <https://www.legalmatch.com/law-library/article/inheritance-succession-laws.html> accessed 8 September 2024

[3] Harshita Yadav, ‘General rules of succession amongst Hindus’ (2021) LawBhoomi https://lawbhoomi.com/general-rules-of-succession-amongst-hindus/  accessed on 8 September 2024

[4] Adv Chikirsha Mohanty, ‘Inheritance under Muslim Law’ (2024) LawRato https://lawrato.com/indian-kanoon/muslim-law-law/inheritance-under-muslim-law-599  accessed 8 September 2024

[5] Chitransh Johari, ‘What is Inheritance and Succession?’ (2024) Geeks for Geeks https://www.geeksforgeeks.org/what-is-inheritance-and-succession/  accessed 8 September 2024