Succession refers to the transfer of property from one person to another after that particular person dies. The law of succession regulates the inheritance of a property.
Here Succession laws are explained through two terms:
Testamentary or Testate Inheritance, in which inheritance is as per the will of the deceased. It is governed by the Indian Succession laws Act 1925 which doesn’t include the Muslim community.
Non-Testamentary or Intestate succession, in which the deceased person dies without making the will.
There are different succession laws for different types of communities in India (E.g. Indian succession act, The Hindu Succession Act, Shariat law, etc.). The Indian Succession Act, 1925 comprises of the common set of rules for all religions except Muslims because for them Muslim Shariat Law is Applicable. However, in case if the will is related to immovable property is within the jurisdiction of Madras and Bombay High Courts and located within West Bengal, they are bound by the Indian Succession Act 1925 for the purpose of testamentary succession.
Indian Succession Act of 1925
On 30th September 1925, the enactment of The Indian Succession laws Act began which combined all the Indian Laws relating to succession. It is applicable to testamentary and intestate succession. It includes 11 parts, 391 sections, and 7 schedules. This law was administered at the time of British Rule. Majority of people at those times were of Hindu or Muslim community and each of these communities had their own different laws which were derived from their respective sacred texts.
Since there were also other communities such as Parsis and Christians, and they had no attachment towards these bigger communities, therefore, it was not proper to administer laws of the bigger communities for everyone.
The Intestate or Nontestamentary succession comes under Part V of the Indian Succession Act. When a person dies without leaving a will, the possessions have to be equally distributed among their spouse and heirs. However, a person can leave his or her property to anyone and can even disinherit his own children and widow. Part V does not apply to the property of any Hindu, Muslim, Jain, Buddhist or Sikh.
Consanguinity operates under Part IV of the Indian Succession Act. It means being from the same ancestor or having relations from the common ancestor. Section 25 in The Indian Succession Act, 1925 tells about Lineal consanguinity.
Lineal consanguinity is that which lasts between two persons, one of whom is descended in a direct line from the other, as between a man and his father, grandfather, and so upwards in the direct ascending line, or between a man and his son, grandson, great-grandson and so downwards in direct descending line.
Section 26 of the Indian Succession Act, 1925 deals with Collateral Consanguinity. Collateral consanguinity is that which subsists between two persons who are descended from the same stock or ancestor, but neither of whom is descended in a direct line from the other.
Hindu Succession Act, 1956
On 17 June 1956, the Parliament of India enacted the Hindu Succession Act in order to amend and codify the law relating to intestate succession among Hindus, Jains, Buddhists, and Sikhs. Further parts of this act were amended in 2005 by the Hindu Succession Act, 2005. The Hindu Succession Act, 1925 extends to the whole of India except State of Jammu and Kashmir. Muslim, Jew, Christian or Parsi people are not a part of this law.
This act is applicable to the following:
Any person who is Buddhist, Jain or Sikh by religion;
And to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that the concerned person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
The explanation as to who shall be considered as Hindus, Buddhists, Jains or Sikhs by religion has been provided in the section:
Any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion;
Any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;
Any person who converts or re-converts to the Hindu, Buddhist, Jain or Sikh religion.
A person shall be treated as a Hindu under the Act though he may not be a Hindu by religion but is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.
However, the Act shall not apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution of India unless the Central Government, by notification in the Official Gazette, otherwise directs.
This law doesn’t apply to any person who commits murder and is disqualified from receiving any form of inheritance from the victim. If a relative convert from Hinduism, he or she is still eligible for inheritance. The descendants of that converted relative, however, are disqualified from receiving the inheritance from their Hindu relatives, unless they have converted back to Hinduism before the death of the relative.
Applicability as per gender
When a male is dying without a will, his will would be given to his heirs within Class I. If there are no heirs under Class I, the property will be passed to the heirs within Class II. In the case when there are no heirs in Class II, the property will be given to the deceased’s relatives through male lineage. If there are no agnates, then the property is passed on to any relative through male or female lineage.
Here Class I heirs are sons, daughters, mothers, widows, sons of a pre-deceased son, widows of a pre-deceased son, son of pre-deceased sons of a predeceased son, and widows of a pre-deceased son of a predeceased son.
See more– Indian judiciary system
If there is more than one widow, multiple surviving sons or multiples of any of the other heirs listed above, each shall be granted one share of the deceased’s property. Also if the widow of a pre-deceased son, the widow of a pre-deceased son of a pre-deceased son or the widow of a brother has remarried, she is not entitled to receive the inheritance.
Class II heirs are categorized as follows and are given the property of the deceased in the following order:
- Son's / daughter's son
- Son's / daughter's daughter
- Daughter's / son's son
- Daughter's / son's daughter
- Daughter's / daughter's son
- Daughter's /daughter's daughter
- Brother's son
- Sister's son
- Brother's daughter
In the case of females, the ownership of all property is granted to them either before or after the signing of the Act. But in the 2005 amendment, the daughters were allowed an equal part of the property as with sons.
The property of a Hindu female dying without a will, shall transfer in the following order:
- upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband,
- Upon the heirs of the husband.
- upon the father and mother
- upon the heirs of the father, and
- Upon the heirs of the mother.
Muslim Law Of Succession
The Muslim law of succession constitutes four sources of Islamic law –
1.The Holy Koran
2. The Sunna – that is, the practice of the Prophet
3. The Ijma – that is, the consensus of the learned men of the community on what should be the decision on a particular point
4. The Qiya – that is, an analogical deduction of what is right and just in accordance with the good principles laid down by God.
Muslim law recognizes two types of heirs, Sharers, and Residuary. Sharers are the ones who are entitled to certain share in the deceased’s property and Residuary would take up the share in the property that is left over after the shares have taken their part.