Succession under Indian Law

Succession and Inheritance of property under Indian Law:-

By Sandigdha Mishra, Advocate.

advsandigdha@paydirtprofessionals.com

Upon death of a person, succession follows. The Constitution of India via Entry 5 in List III recognizes the personal laws and deals with areas like marriage, divorce, adoption, partition, intestacy, succession etc. Thus, either the State or Centre is competent to legislate on areas falling within the ambit of personal laws. 

In most cases, The Hindu Succession Act prescribes the rules relating to succession applicable to Hindus, Sikhs, Buddhists, Jains etc. It extends to majority of the Indians.The Hindu Succession Act, 1956, was amended in 2005 to give daughters an equal share in parental property. 

In case of ancestral property, a daughter now has a share in it by virtue of birth, while self-acquired property is distributed as per the provisions of the will.

Hindu Succession Act, 1956 (“HSA”) and other legislation are silent on the aspect of the definition of “ancestral property”, the Hon’ble Supreme Court of India (“SC”) has placed its reliance on the Mitakashara school of Hindu law. The SC has held that the essence of an ancestral property is that, the sons, grandsons and the great grandsons of a person who inherit it acquire an interest and the rights attached to it at the time of their birth. The position of ancestral property has further been clarified by the SC in some other matters, wherein it was held that any property inherited up to four generations of a male lineage from the father, father’s father or father’s father’s father is termed as ancestral property and any property inherited from mother, grandmother, uncle and even brother is not an ancestral property. In ancestral property, the right of a property accrues on the male on birth, who is also the coparcener of such property.

The inheritance of such ancestral property is different from inheritance under section 8 of the HSA, where any inherited property becomes separate and self-acquired property of the successors/ legal heirs who inherit the same. However, there may be exceptions to such rule as well. In series of judgements, wherein in summary, it was held that if a Hindu Undivided Family (“HUF”) and its properties were existing prior to the passing of HSA in 1956 and which HUF continued even after passing of HSA, in which case a property inherited by a member of HUF even after 1956 would be HUF property in his hands – to which his paternal successors in title up-to three degrees would have a right. The second exception was when the person who acquires a self-acquired property throws the same into a common mixture of HUF.

Now, some of the key aspects of ancestral property under Hindu personal laws and the regulatory framework pertaining to the functioning and devolution of ancestral property in India can be summarized as under:

1. As previously stated, there is no definition of ancestral property, however, the HSA is the primary statute which governs the manner in which the property will be devolved and disposed off by the legal heirs to any such property. The HSA was amended by the Hindu Succession (Amendment) Act, 2005 (“2005 Amendment”), which introduced certain fundamental changes to HSA. While the 2005 Amendment was repealed by the Repealing and Amending Act, 2015, the Courts in India have held that the fundamental changes brought through the 2005 Amendment still hold applicable.

In addition to the HSA, the other laws which are applicable to ancestral property include inter alia the Transfer of Property Act, 1882 (“TPA”) and Hindu Minority and Guardianship Act, 1956 (“HMGA”).

2. Ancestral property has traditionally been held by a joint Hindu family consisting of male coparceners and was traditionally governed by the Mitakshara school, wherein property descends only through the male line as only the male members of a joint Hindu family have an interest by birth in the joint or coparcenary property.

This has also been elucidated by the SC in Rohit Chauhan v. Surinder Singh and Ors., wherein the SC has held that “Coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the Joint Hindu family and before commencement of Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family.”

3. An ancestral property divided/ partitioned through a partition deed, family arrangement, etc. loses its ancestral character. The prerequisite of an ancestral property is that an ancestral property should not have been divided or partitioned by the family members, as once a division of the ancestral property takes place, the share or portion which each coparcener gets after division becomes his or her self-acquired property. After partition, the share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issues.

Here too, SC held that “so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener.”

4. Prior to the 2005 Amendment, daughters were not entitled to inherit ancestral property as sons. The 2005 Amendment had brought about a significant change by entitling the daughters a share in the ancestral property along with their male siblings. At present, the daughters are entitled to same rights in the property of her father as that of the father’s son. However, daughters cannot inherit ancestral property if father has died before 2005.

The Supreme Court in Prakash v. Phulavati, has held that the rights under the 2005 Amendment are applicable to living daughters of living coparceners as on September 9, 2005, i.e. the date of commencement of the 2005 Amendment, irrespective of when such daughters are born. The Court further held that the 2005 Amendment stipulates that a daughter would be a coparcener from her birth and would have the same rights and liabilities as that of a son.

The 2005 Amendment was repealed by way of Repealing and Amending Act, 2015. However, the Karnataka High Court has said that the Repealing and Amending Act, 2015, does not wipe out the amendment to Section 6 of the HSA, as per which the daughters were treated as coparceners on par with sons vis-a-vis the coparcenary property and accordingly does not take away the status of a coparcener conferred on a daughter giving equal rights with the sons in the coparcenary property.

5. The position with respect to management of minor’s share in any immovable property has been examined under Section 8 of the HMGA, which states that the natural guardian of a minor, in order to deal in any manner or dispose off the immovable property of the minor has to seek permission from the Courts in India. However, this rule does not apply when the minor has an undivided interest share in the HUF property and the property is under the management of an adult member or Karta of the family.

6. Further, as regards the rights of the coparcener, it is to be noted that a single coparcener who is not the managing member of the joint family property cannot be sued on behalf of the family or sue to recover a particular portion of the joint family property for himself. The only remedy by one member against his co-sharers for possession is by a suit for partition, and until then he has no right to the exclusive possession of any part of the said property. The underlying principle is that there is community of interest and unity of possession between all the members of a coparcenary and each coparcener is entitled to joint possession and enjoyment of the joint family property. A coparcener who is excluded from his right in respect of joint possession and enjoyment is entitled to an account of the income derived from the joint family property and to have his share of the income ascertained and paid to him, i.e. mesne profits, as well as enforce his right to joint possession of any property from which he is excluded.

Can a father gift a property to his son?

In a recent case, the Supreme Court held that a property that was gifted by a father to his son could not be counted as an ancestral property simply because he got it from his father. The court stated that the property of the grandfather can be held as the father’s ancestral property.

There are only two conditions under which the father would get the property, one being that he inherits the property after his father dies or in case the fathers’ father had made a partition during his lifetime. However, when the father obtains the grandfather’s property by way of gift, it is not considered an ancestral property. Sons and daughters don’t have any claim on the said property gifted by the grandfather.

A gift from the father to his son is not a part of the ancestral property as the son does not inherit the property on the death of the grandfather or receive it by partition made by the grandfather during his lifetime. The grandson has no legal right on such a property because his grandfather chose to bestow a favor on his father which he could have bestowed on any other person as well.

Thus, the interest which he takes in such a property must depend upon the will of the grantor and therefore, when the son has got the property from his father as a gift, his other sons or daughters cannot claim any part in it calling it an ancestral property. He can alienate the gifted property to anyone he likes and in any way he likes. Such a property is treated as a self-acquired property, provided there is no expressed intention in the deed of the gift by the grandfather while gifting the property to his son.

How is inheritance dealt with under Hindu Personal Laws?

The Hindu Succession Act is applicable to Hindus, Jains, Buddhists, and Sikhs. It takes into consideration that the deceased shall have a different class of heirs and such different classes shall have different stakes over the property. These classes are

Class I Heirs:

1.    Widow

2.    Son 

3.    Daughter

4.    Mother of the intestate 

5.    The heirs of pre-deceased children of the intestate (which shall include the widow, sons, daughters of the predeceased children as well)

Class II Heirs:

1.    Father

2.    Grand Parents

3.    Grand Children

4.    Brother

5.    Sister

6.    Other relatives

Agnates: These are the blood relations to the deceased through males. For example bother’s son, brother’s daughter, son’s son, etc.

Cognates: These are the blood relations to the deceased through females. For example sister’s son, sister’s daughter, daughter’s son, etc. 

In the case where a Hindu male passes away the following shall take place

1.    The Class I heirs get equal shares

2.    In case of no Class I heirs it shall be equally divided amongst Class II heirs

3.    In case of no Class I or Class II Heirs the property shall be divided amongst the Agnates and then the Cognates.

4.    If none of the above-mentioned heirs exist then the property shall pass on to the Government and this is known as Escheat. 

In case a Hindu Female passes away the property shall be divided amongst

1.    First her children and husband

2.    Then among her husband’s heirs

3.    Then among her father and mother

4.    Then among her father’s heirs

5.    Then among her mother’s heirs

What are the rights of the women in terms of inheritance and succession laws in India?

One of the major concerns that have arisen out of these personal laws is that there are unequal rights given to women. This stems off from the understanding that most of these personal laws are archaic in nature and need to be amended to a certain extent. The most notable amendment was to the Hindu Succession Act in 2005 which gave daughters equal rights as sons in terms of them being a coparcenary and in terms of succession. Until 2005, the property rights of son and daughter were different. Only an unmarried daughter had a right in the ancestral property. But post-2005, a daughter has similar rights and duties that a son has. She has an equal right/share in the ancestral property.  In the case of the father’s self-acquired or separate property, if the father dies without leaving behind a will, the daughter being a Class I heir will have equal rights with her mother, grandmother, and sister or brother.

That being said, there are still certain instances where women are not provided the same rights as men. Under Muslim Law, women do not have the same rights as men and tend to have a lesser share on the property than their husbands. 

In terms of Christian inheritance, we, however, see that there is no such gender bias and women have the same rights as men do.

Inheritance Rights of Children

A son has a right by birth in his father’s and grandfather’s property. In his grandfather's ancestral property, he has equal rights with his father and other family members. In the case of his father’s self-acquired or separate property, if the father dies without leaving behind a will, then the son is a Class I heir will have equal rights with his mother, grandmother, and sister or brother. An illegitimate son is not entitled to get a share in his father’s property. A posthumous child, who is in the womb of the mother at the time of death of the father, is entitled to a share in his father’s property. The only condition involved is that he should be alive on his birth.

Inheritance Rights of Grandchildren

A grandchild, both grandson, and granddaughter have an equal share with their father in their grandfather’s ancestral property. In the case of grandfather’s self-acquired or separate property, a grandson will have inheritance right only when his father predeceased his grandfather. 

Rights of a Spouse

A wife has no right in the ancestral property. Therefore, a widow has no right over the husband’s ancestral property. She is a Class I heir, will have a right in the self-acquired property of her husband. A widowed mother also has a right in her son’s property.

Inheritance Rights of an Adopted Child

The inheritance rights of an adopted child are similar to that of a natural-born. Upon adoption, a child loses his rights in the biological family but if a property vest in him before the adoption, then the property will continue to be in his name.  

Will under the Indian Succession Act

A will or testament is a legal document/ declaration expressing the will of the person, containing the names of one or more persons who are to manage his estate or acquire his estate after his death. A probate is a copy of the Will, that is certified under the seal of a competent Court with a grant of administration of the estate to the executor/ legatee of the testator. It acts as official evidence of an executor's authority.  After the death of the person who made the Will, a proceeding may be initiated in court to determine the validity of the will that the testator may have created. The proceedings are known as probate proceedings. Generally, during the proceedings, the witnesses are called upon to testify upon the validity of the Will. The person making the Will should be a competent individual, that is, he must not be a minor and should be a person with a sound mind. The probate court only decides upon the validity of the Will and does not deal with the case on merits. 

Conclusion 

Upon the death of a person, before dividing the property, the successors must be sure that no debt is attached to the property. Once succession to the property is confirmed, the heir must apply for mutation of property in his own name. Mutation updates the government records and doesn’t act as a transfer of title. Once you acquire the property, you can reside in, lend or sell the property. 

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