Law on inheritance
| Rules of Succession are not simple and differ based on one's
religion |
Our ancestors have given great importance to properties and
preservation of properties in the family. The word "heir" means a person who is
entitled to succeed to the property. More precisely to the property of a person
who has died intestate, that is, without leaving a Will or leaving a valid Will.
Succession to property has been a right since time
immemorial.
The rules have changed over a period of time. However, the
rules of succession have been very clear at all times. This, however, does not
mean that the rules are simple.
Differences
As all of you are aware the rules differ based on one's
religion. We can first understand some common aspects before adverting to the
position relating to inheritance by Hindus, Christians and Muslims.
Let us look at the inheritance of properties of Hindus first.
A Hindu means a person who is a Hindu by religion in any of its forms or
developments including a Virashaiva, a Lingayat, or a follower of the Brahmo,
Prarthana or Arya Samaj; a Buddhist, Jain or Sikh and any other person who is
not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that by
customs or usage, he or she is not a Hindu.
The law applicable is the Hindu Succession Act, 1956. Any
property, whether movable or immovable, can be inherited on the death of the
owner of the property. The word "heir" means any person, male or female, who is
entitled to succeed to the property of a person dying intestate.
A person is deemed to die intestate in respect of property of
which he or she has not made a testamentary disposition.
Leaving a
Will
In other words, a person may die without leaving a Will in
respect of all his properties or may have made a Will which is not capable of
taking effect or may make a partial Will covering only some of his or her
properties.
For such properties for which there is no valid Will or
testamentary disposition, the devolution will be guided by the provisions in the
Act.
There are three types of properties to which persons can
succeed. One is a coparcenery property; second is the property owned by a male
and third is the property owned by a female.
Coparcenary
property
A coparcenery property means property consisting of ancestral
property or property which has been jointly acquired and also property which has
been brought into common stock. A coparcener is a person who has equal share
with the other coparcener in the estate of a common ancestor. Earlier, only
males acquired an interest in the coparcenery properties as coparceners.
By virtue of a recent amendment to the Hindu Succession Act,
the daughter of a coparcener has been given equal share as that of a son.
As such, with effect from 09.09.2005, the daughter of a
coparcener shall, by birth, become a coparcener in her own right and in the same
manner as the son and will have the same rights and liabilities in the
coparcenery property like a son.
Dying
intestate
If a Hindu male or female dies intestate leaving his or her
individual, self-acquired property, then the legal heirs of the deceased person
will get an equal share in the estate of the deceased person. The legal heirs
will, however, differ depending on whether the person who dies intestate is a
male or a female.
The position can be understood by a simple example.
Let us assume that a person dies leaving one item of
property. Let us further assume that, in this case, it is an apple.
Let us assume that the person who has expired is a male
intestate and leaves wife, son and daughter as his only legal heirs.
Sharing an
apple
If the apple were to be a coparcenery property, then the
person who expired, had, during his lifetime, a one-third share in the apple. On
his death, it will be taken that the apple can be cut to three identical pieces.
First, the son and daughter will get one piece each. The
third piece will be further cut as three pieces and out of the same, wife will
take one piece; son will take one piece; and the daughter will take one piece.
In other words, if the apple were to be cut into nine
identical pieces, the wife will take one; the son will take four and the
daughter will take four pieces each.
If the male intestate had a mother, then the one-third
portion will be divided into four equal identical pieces.
In such a case, the apple will be cut in twelve identical
pieces and the mother will take one piece, wife one piece, son will take five
pieces and daughter will take five pieces.
The son and daughter will, however, take their pieces for
their branch in the sense that they have to share it with their sons and
daughters respectively and such sons and daughters will have an inherent and an
equal right to the portions taken by the son or the daughter, as the case may
be.
If the apple were not to be a coparcenery property, but an
individual property of the male dying intestate, and he has left behind as his
only legal heirs, his wife, son and daughter, the apple has to be cut into three
equal and identical pieces and each will get one piece.
If he had left his mother as well, then the apple has to be
cut into four equal and identical pieces and each will have one piece.
This piece will be taken by each of them, absolutely with no
inherent share to any other person including the children of the son and
daughter.
If the apple were to be an individual property of a female
Hindu dying intestate and she has left a son and daughter and her husband as her
only legal heirs, then this has to be cut into three equal and identical pieces
and each will take the piece as his or her individual and absolute property.
However, if the apple were to be given to the female
intestate by her father or mother, then in the absence of any child or children
of predeceased son or daughter, the apple will have to be cut and distributed to
the legal heirs of her father.
Alternatively, if the apple were to be given to the female
intestate by her husband or from her father-in-law, then in the absence of any
child or children of predeceased son or daughter, the apple will have to be cut
and distributed to the legal heirs of her husband.
After
amendment
After the amendment, if the apple is a coparcenery property
in the hands of a female Hindu intestate, then the same rules as are applicable
to the male intestate for a coparcenery property, as detailed above, will apply.
There are other rules of succession like Class I and Class II
heirs for a Hindu dying intestate and rules and orders of succession for a
female dying intestate. The Class I heirs include generally wife, mother, child
and claimants through a predeceased child. Father is a notable omission in the
list of Class I heirs. In other words, if a male intestate dies leaving wife,
children, mother and father, the father does not get any share in the property.
However, father is the first entry in Class II and will get
the entire property, if there are no Class I legal heirs.
There are also other legal heirs in certain circumstances and
the determination of these legal heirs is complex and can be worked out on a
case-to-case basis. If a legal heir is a murderer of the person dying intestate,
then the murderer is disqualified from inheriting the property.
R.L. NARAYANAN
Courtesy: The Hindu - Property Plus
