SUCCESSION AND INHERITANCE

INTRODUCTION 

From the earliest time since mankind existed, we as human beings all across the world,have always needed a way to pass on our wealth and property after our deaths. Typically in ancient time where men were considered the head of families and society meanwhile women were only considered as property of men their heritage or the rights to property and wealth were passed down the family from one male to another male person specifically the eldest son whereas women whether wife or daughter were given no succession rights. The heritage was passed down within the family to make sure the state in the family is preserved.

Diving into the history of succession and inheritance, we see a significant role of Roman laws in the introduction of the concept of testamentary succession i.e. the concept of will and intestate succession and in both ways of succession under Roman laws male members were usually given priority.  As the mediaeval time came Religion played a role in succession,    with the introduction of Islamic law, the Quran provided a specific set of rules of inheritance for both males and female although it also prioritised men over women. Due to the colonisation British common law has a significant impact on the idea of inheritance. According to British law inheritance through writing will become a common practice and many countries including India followed the same practice during colonisation.

In modern times, most countries have established a legal framework for succession and inheritance providing both men and women equal inheritance.  The legal system also adopts laws to protect different family structures and their members like spouses, adopted children, and others.

In India succession and inheritance are deeply rooted under the personal law of the diverse religious community present in it.  It’s a subject that influences the right of men and women to transfer their rights of and property to individuals acquiring the same after or upon the person’s death. 

LEGAL FRAMEWORK GOVERNING SUCCESSION AND INHERITANCE IN INDIA. 

Laws in India governing succession and inheritance depend on various religions and personal laws applicable on the deceased person i.e. death person.

The act governing the Hindus which includes Sikhs, Jains, and Buddhist for succession is the “Hindu Succession Act 1956”. Whereas the acts governing the succession for Christian and Parsi are the “Indian Succession Act, 1925”.  The succession law for Muslims in India is governed by the Muhammad in law which is based on Islamic principles and varies between the schools of Islamic law that is Shia and Sunni. 

TYPES OF SUCCESSION

Succession means succeeding or following in general day-to-day life but here it means succeeding or passing of rights of property from one person to another.  There are two types of property: 

• Ancestral property
• Separate property.

Ancestral property from the name itself can be understood as has been passed on or being in the family from generation to generation whereas separate property is also known as self-earned property. The Ancestral property is a part of joint family property which is governed under or given through Coparcenary and Separate property is distributed by the rules of inheritance and succession. In India there are two primary types of succession: 

• Testamentary Succession  
• Intestate Succession.

Testamentary succession refers to the case or scenario where a person expresses his wishes to give his right to property to someone else after his death. In a situation the person leaves behind a legally binding valid Will, declaring the intention of the person with respect to his property and desire of his property distribution after his death. The person whose wishes or intentions are declared in the will is known as the testator. The testamentary succession in  India is governed under the Indian Succession Act 1985 which does not apply to anyone who is Hindu including Sikh, Jains, Buddhist, and Muhammadan.

Intestate Succession, refers to the case or scenario where a person dies without making a will. Here the property will be distributed among the legal heirs of the deceased person according to the laws applicable to the deceased religion. For example, if the deceased is Hindu, the person’s property will be distributed according to the Hindu Succession Act 1956 meanwhile if a person is Muslim then his property will be distributed according to Islamic law that is according to the school he belongs Shia or Sunni.

WILL UNDER HINDU LAW 

Wills in Hindu law are governed by the Indian Succession Act of 1925, which applies to Hindus, Sikhs, Buddhists, and Jains. A will, also known as a “vasiyat” or “wasiyat” in Hindi, is a legal document in which a person (the testator) states their desires for the disposal of their possessions after death. Individuals have extensive discretion under Hindu law to dispose of their property as they see fit, subject to a few broad legal norms. 

1. Types of Property Protected by a Will 

A Hindu can make a will for property that they earned or acquired themselves. However, some forms of property cannot be included in a will:

• Ancestral Property: In Hindu law, ancestral property is passed down through generations, with each member of the coparcenary (joint family) entitled to it. The testator cannot draft a will that completely disposes of ancestral property because all coparceners (usually sons and daughters after the 2005 amendment) are entitled to it.
• Joint Family Property: Similarly, property owned jointly by the family under Hindu joint family laws (coparcenary) cannot be willed away by an individual because it belongs to the entire family.

1.  Legal Requirements for Valid Wills

For a will to be valid under Hindu law, the following conditions must be satisfied:

• The testator must be of sound mind and at least eighteen years old.
• The will must be made freely, without force, deception, or undue influence.
• The will must clearly indicate the testator’s intentions for the distribution of property after death.
• The testator must sign the will in front of at least two witnesses, who must also sign it in order for it to be legal.

1.  Revocation of Will

A will made under Hindu law can be repealed or changed at any moment before the testator dies. This can be accomplished by creating a new will that automatically cancels the former one, or by performing a specific act of revocation, such as ripping or burning the original will. A new will can also be used to change the prior one.

HINDU SUCCESSION ACT, 1956 FRAMEWORK 

The Hindu Succession Act, provides a clear picture of the procedure of property distribution if a person dies without a will, that is it lays down the rules and processes for interested succession.  The law applies to only Hindus which also includes Sikh , Jains and Buddhist. The act has separate procedures for males and females deceased .

Intestates succession for Hindu males: According to section 8 of the act which is the General rules of succession in case of men where the property of the deceased may be divided according to the given provision among the heirs. The property may distribute in categories of heirs

• Class I heirs – includes immediate family members. Schedule given in the Act mention the list of heirs.According to which Class I Heirs include Son; Daughter; Widow; Mother; Son /daughter of a pre- deceased  son/daughter ; Widow of a pre- deceased son. 
• Class II heirs-  According to section 8 if no one from Class I heirs are present then property will be distributed among Class II hires, the same schedule mentions the list of Class II heirs. Which includes 
  • Father
  •  Son’s daughter’s son; son’s daughter’s daughter; brother ; sister ; others

 The schedule refers to only full blood and half blood relatives.

• Agnates- If no one from the above to classes is present then the property may distribute among the agnates of the deceased. Agnate is defined under Section 3(1)(a), which says two people can be each other agnates if they are related to each other wholly through a male whether by blood or adoption.
• Cognates- If none of the agnates of the deceased are there, then the property is distributed among cognates of the deceased. Cognate is defined under section 3(1)(c), which says two people can be each other’s cognates if they are related  to each other not wholly through males whether by blood or adoption.

After the amendment of Hindu Succession Act in 2005, daughters were granted equal inheritance rights as previously daughters did not have rights in both types of property. In the latest case of  “Vineeta Sharma vs Rakesh Sharma, the Supreme Court held that women/daughter shall be considered as joint legal as a son and can inherit his interest property equally as male irrespective of whether the father was not alive before the Hindu Succession Act (Amendment) 2005 came into effect”

Intestates succession for Hindu Females: According to section 15 of the act which is the General rules of succession in case of females where the property of the deceased female , may be divided according to the given set of rules in the  provision among the heirs. The property may distribute in heirs as;

“(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; 

(b) secondly, upon the heirs of the husband; 

(c) thirdly, upon the mother and father; 

(d) fourthly, upon the heirs of the father; and 

(e) lastly, upon the heirs of the mother”

MUSLIM LAW OF INHERITANCE

The law of inheritance for Muslims in India is based on Quranic principles and differs greatly from the rules governing Hindus, Christians, and Parsis. 

According to Muslim law, heirs are divided into Sharers and Residuaries. 

• Sharers receive a fixed proportion of the property, 
• Residuaries inherit the residual portion after sharers have received theirs.

Muslim law does not recognize the notion of coparcenary or ancestral property; so, individuals, whether male or female, acquire their rightful portion when their ancestor dies. Furthermore, Muslims can only will one-third of their property, with the remaining two-thirds subject to inheritance laws.

WILL UNDER MUSLIM LAW 

In Muslim law, the concept of a will is known as a “wasiyat”. While Muslims have the freedom to make a will, it is subject to specific constraints under Islamic law. 

1. One-third Rule

One of the most basic principles in Muslim law concerning wills is that a person can only leave one-third of their total fortune. The remaining two-thirds of the assets must be distributed to the rightful heirs as stipulated by Islamic inheritance laws (Sharia). This one-third portion may be distributed to anybody, including non-heirs, charitable organisations, or distant relatives. The one-third rule is meant to preserve the interests of legal heirs, such as children and spouses. It forbids a person from completely ignoring Islamic inheritance regulations through a will.

1.  Heirs cannot be included in the will.

According to Muslim law, legal heirs cannot receive anything via a will. The reason for this is that under Islamic law, heirs are already entitled to a piece of the assets via intestate succession. Non-heirs, such as distant relatives or others outside the family, can nevertheless be included in a person’s will.

1. Condition for a valid will.

To be recognized valid under Muslim law, a will must meet the following conditions:

• The testator must have a sound mind and be an adult.
• The will must be made voluntarily, without any force or improper influence.
• The beneficiary must be able to inherit, which means they must be alive at the time of the testator’s death and not a legal heir, unless the other heirs agree.

1.  Revocation.

According to Muslim law, a will can be cancelled by the testator at any point before death. Any additions or alterations to the will should be unambiguous, and the testator should be fully capable of making them.

1. Types of Wills

Islamic law recognizes both oral and written wills. However, written wills are often favoured since they provide more direct evidence of the testator’s wishes. Oral wills are permitted, but may be more difficult to prove in court if there is a disagreement among the heirs.

1. Sunni-Shia Differences

There are some variations between Sunni and Shia interpretations of will-related laws:

• Sunni Law: The one-third rule and the exclusion of heirs are often rigidly enforced.
• Shia Law: The laws in Shia jurisprudence are basically identical, albeit there may be more freedom in some circumstances. Under certain conditions, Shia law may allow heirs to receive one-third of the estate.

CONCLUSION 

In India, succession and inheritance rules are complicated, combining religious personal traditions with universal legal frameworks such as the Indian Succession Act of 1925. While the Hindu Succession Act of 1956 has been progressively amended to guarantee gender equality, Muslim, Christian, and Parsi inheritance laws continue to operate on the principles of their own religious codes.

The necessity for succession and inheritance law reform is still being debated, particularly in terms of uniformly applying inheritance rights across communities, ensuring equality and justice for all heirs regardless of gender or religion.