Intestate Succession

Nothing in the world stays permanent. Everything and every person undergoes change. Similarly, the temporary happiness acquired by humans in the form of properties also gets transferred parallel to the situations arising.  The main concern is, to whom the property will be transferred, either to parents, or the next surviving generation (children) or to the wife/ husband?  Every relationship mentioned above has an important role in the life of the other.  A property that is transferred by the acquirer during his lifetime gives the power to decide on the next successor of the property, or if such a person writes a will, then there arises no question. 

What will be the status of the property if the person dies without partitioning, transferring, or writing a will?  Will the property be left unused or taken over by the government, or by any other family member?  Who will be succeeding to the property, as per law? If the property automatically goes to the surviving children, does the girl child have equal rights?  This article discusses all these above-mentioned questions.    

Introduction

Any work, when decided and executed by one head, the process seems easy. But when the same work is distributed to two people for its completion, there arises a problem. Either one of them completes the work quickly or the other stands quickly. Similarly, a family with one successor has no problem in passing on the property.

The fact known to all is that the property of the father/ grandfather passes to his son or daughter after his death. But what if there is more than one successor, if the father writes a will then there arises no problem but if he fails then the family becomes a ground for fights to acquire the property. The framers of legislation, have well-organized and structured the distribution of property within the family with a certain condition.

These conditions vary from religion to religion but there do exist a few common conditions to be fulfilled by the survivors, to acquire his father’s/ grandfather’s property. Generally, a will comes into existence only after the death of the father, and in the concept of intestate succession, it arises after the death of the father who fails to allot separate property for his successors. All these discussions deal with a living successor, but what if the family does not have any descendant to hold the property earned by the father or the mother? Who will then, be the owner of such property?  The following discussions deal with some of the conditions, the Act prevailing in India which has control over such succession, and more.

Variation in each Religion

Hindu

The issues related to succession are dealt with under the Hindu Succession Act 1956. It elaborates on testamentary succession (where the father writes a will regarding the distribution and usage of property) and Intestate Succession (where a will is absent). A transfer through a will has fewer problems than that of the absence of a will. In dealing with such issues the Hindu Succession Act gave provision for property acquired by a female and a male. Firstly, this article shall address the status of property acquired by a male after his lifetime.

  • Class I Heirs

The Hindu Succession Act (HSA) classifies all the relatives and family into various groups and in specific preference order. If the male member dies without writing a will, the right to claim goes in an order. Class I heir holds the leading position in claiming such property. It consists of the mother, spouse, and children. The share will be divided equally.

  • Class II Heirs

When no Class I heir is alive, the right to claim passes to the next category. It consists of the father, siblings, his grandchildren, sibling’s children, etc.

  • Agnates

When both the class heirs are absent, the right to claim passes over to the next category.   This consists of the distant blood relatives of the deceased person from the father’s side. For example, the father’s brother, father’s brother’s daughter, etc.

  • Cognates

They are opposite to Agnates, that is the Cognates consist of distant blood relatives of the deceased person from the mother’s side. For example, the mother’s brother, mother’s sister, etc.

When a female who acquired property dies:

  • The first preference goes to her son, daughter and the husband
  • In absence of the 1st category, the other heirs of the husband may claim the right.
  • The 3rd category consists of the mother and the father of the deceased female.
  • Then comes the heirs of the father and mother of the deceased female

In the above-mentioned categories, the property can be claimed only in the order listed. If nobody who falls under such categories for both a Hindu male and a female is alive, the property is transferred to the control of the government. The HSA has provisions such that all members who have the right to acquire the property get an equal share of the property.

Muslims

If a person who is governed by the Mohammedan law dies without writing a will, the property can be claimed only by two categories of people, known as the sharers and the residuary. In the Muslim law of Succession, the party who has the right to claim the property has a different share for each situation. The share differs for each person in the family. For example, when a wife dies intestate, the husband receives 1/4th of the share. If they have a child, and if there is no child then the father receives ½ of the property. Similarly in each case, the share varies depending on the situation.

Christians

Christians are governed by the Indian Succession Act (ISA). The ISA deals with Indian Christians from Section 32 onwards. In Christianity, there is no difference between property acquired by males and females. Both stay as an heir to each other. If the male member dies, the wife and the kindred are the legal heirs and if the female member dies, the husband and the kindred are the legal heirs according to the Indian Succession Act. Apart from the mentioned religions, all other religions fall under the Hindu religion according to the definition of Hindu as mentioned in the Hindu Marriage Act.

All the above-mentioned laws such as the Hindu Succession Act and the Mohammedan laws are personal laws that have their base in the Indian Succession Act. Both express similar terms for a valid succession in the absence of a will. In the past, society failed to recognise women and refused to grant the rights of succession to women. The present era identifies women as equals to men and has enacted various laws and rules to uplift women and prevent discriminatory practices. Through various amendments, the Indian Succession Act played a role in granting equal rights to women with regard to the right to acquire property similar to that of a male, from her father.

In the past, the reasons behind the denial of the grant of property to women were that  India is a home of many religions, where people of each religion have their own personal laws which deal with terms governing their daily life. Thus, each personal law differs in granting rights to women. Therefore, the part of the property belonging to women was placed fragmented and the Indian Succession Act had no inclusive provisions regarding the right of succession of women. The Amendment made in the year 2005 in the Hindu Succession Act, the Indian Succession Act, and other laws made the first step in granting equal rights to women with regard to the property of the father. Later, this provision was strengthened in a judgment passed by the Supreme Court on 11 August 2020.

Conclusion

From the above discussion, it is very clear that Indian citizens follow their personal laws along with the common law to eradicate issues related to succession.  From the above, it is clear that Hindus differentiate between a property acquired by a male and a female and at the same time gives the right to claim the property of each other in the absence of anyone. Other religions divide the right to claim based on the situations that arise. The same blood relatives have the right to claim but the share differs on a situation basis. Though the Indian Succession Act has the provision of an equal right to women in property acquired by the father, due to the unawareness of the law, the right is similar to a diamond beneath the mud. In support of the recent Supreme Court Verdict, the diamond was identified by all and held superior.

FAQ

  1. Who are the members eligible to claim a property left intestate?
  2. Is there any separate law governing the succession and other related issues for each religion?
  3. Which law governs the Christian law?
  4. Does a woman have equal rights in the property under the Succession Act?
  5. What can be the main reason that was considered for not making a woman acquire the property?

References

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