Succession word itself calls for a lot of complexities as the whole succeeding lineage is looking out for their part in the assets that is left by the deceased person. Especially in a country like India, where there are multiple religions and belief systems and every religion has their own way of disposing the property or assets of the deceased person, if he himself has not allocated it via Will. Succession is a sensitive and touchy issue and thus, it was necessary to have a uniform codified law that is applicable to all and at the same time respects the traditions and customs of every sect as well.
Indian Succession Act, 1925 was enacted to preserve the sanctity of law in this diversified society, and hence succession or devolution of assets can be done either by a testamentary succession i.e. through a Will or by Intestate succession (where the person dies without making a Will). Intestate succession is applied when the person passes away without disposing a Will with respect to his property or when the disposition of Will is invalid/ illegal and not capable of being effective. Thus, the intestacy can be partial or total intestacy, depending upon the disposition made.
The succession to immovable and movable property is done in different ways in different nations. But the common parlance of succession of immovable property in many countries including India is regulated by the law of jurisdiction as to where the property is situated irrespective of its nationality or domicile of the deceased person. But in case of movable property, the law of country is taken in to consideration and whether the person had domicile at time of his death. This is the basic difference while regulating and dealing with an immovable and movable property as part of succession.
This article will focus on the succession laws prevailing in India for the Hindus, including both testate and intestate succession regulations.
Testamentary Succession In Hindus –
As stated above, testate succession means where the property of the deceased person is distributed as per the Will made and sanctioned by the dying person, but there are certain conditions and requirements which need to be considered to make a valid Will or else the Will might not be effective. Section 58 and 59 of the Act specify the essential requirements of a valid Will, which are as follows-
- Will should be a written document and not an oral one, which indicates the desire of the deceased person regarding the disposal of his estate. Further, if the will is found to be correct and appropriate, then it will be enforced and the estate would be disposed accordingly as stated in the Will.
- The person making the will should be competent to enter into an Agreement. Any person who is not major and is under some influence or coercion, fraud, intoxicated or in bout of illness which might affect his free will or ability to comprehend his doings, is not eligible to make a Will till he doesn’t recover from that particular state.
- The Indian Succession Act 1925 has not mentioned any particular format or prescribed form in which the will has to be written, it can be in any form, but the details of the Will should indicate the intention of the testator clearly and there should be no ambiguity. Even stamp paper is not required to make a Will, it can be made on regular sheet too.
- The Will should be signed by the Testator as well as by 2 witnesses. For those, who are illiterate or are not capable of signing can put their thumb impression at the bottom of the document where all the information with regard to disposition ends, giving assent to the information mentioned above the sign/thumb impression.
- The witnesses should be independent and should not be one of the beneficiaries of the Will. A beneficiary can be any person who is capable of holding the property.
These were the major essentials of a Will, apart from that, the Will should be written in such a manner that the intention of deceased person is evident and as the main purpose of the Will is to give effect to the wish of the Testator, thus a bit of spelling mistakes in name or details of property can be ignored and it is suggested to read the whole document to get a wholesome understanding of the document.
It is not necessary to register a Will, and the person making a Will, needs to appoint an executor who shall be liable for executing the Will, post the death of testator. Even the beneficiaries can act as executor.
When Will becomes void?
In case, when a particular bequest is made for a specific person who is described in the Will, but no such person is found to be in existence who is resembles to the description of the Will then the bequest shall be void.
There are certain exceptions made in case of lineal descendants, for example if the legatee (beneficiary) of the property dies before the death of the testator, then the bequest shall be passed onto the lineal descendent of that legatee and would not be considered as void. In case where an unmarried person makes a Will and marries after a while, then the prior Will shall be considered as revoked or cancelled.
How many times will can be made?
There is no limit to making of Will, the person dying can make any number of Wills, but only the latest one (last one) shall be taken into consideration and will be effective. If there are multiple Will made at the same time, then efforts should be made to give effect to maximum estate of the testator and in case if certain part of the Will is not made effective due to any vagueness or impossibility, even then the remaining part shall be considered as valid. This was enlightened in the case Kailvelikkal Ambunh (testator) by LRs v. H Ganesh Bhandary, AIR 1995 SC 2491, where two parts of the same Will were inconsistent to each other, but it was decided that the latter part of the Will would prevail as the testator is given the right to change his mind till the end. And Will is not similar to Sale Deed or Agreement where the prior part is also taken into consideration.
There are certain special provisions made for the soldiers and airmen who are deployed in an expedition or are involved in actual warfare, and even the marine men who are at sea. These people can make Will orally also before 2 witnesses or handwritten where the signature of the person or witness is not required. This kind of Wills are called Privileged Wills. The main purpose of granting this privilege to the armed forces is that in case of sudden death, their word of disposition can still reach the beneficiaries without much complexities. This privilege will becomes null and void after one month from the day the Testator is ceased from making any Privileged Wills.
Probate of Will
Probate basically means “proving of Will” or it means establishing the validity of will, but probate is required for estates that come under the jurisdiction of the High Court existing in the three presidency towns, i.e. Mumbai, Chennai and Kolkata. Apart from these three towns, probate is not necessary in other parts of India. To obtain a probate of the Will, the executor should make a suitable petition which has the following details-
- Name of the executor in the Will
- Date and time of death of the Testator
- Document attached with the petition is the last Will of the testator
- Will should be properly signed by testator and witnesses
- Volume of assets to come in petitioner’s hand
- Document suggesting that Court has jurisdiction on the basis of domicile of testator or immovable property is situated there
Further, it was held in the case of K Laxmanan v. Thekkayil Padmini & Ors 2009 AIR SCW 10, that onus of proof to establish the validity of the Will is on the propounder (executor). The executor has to prove that the Will written is lawful and genuine and there is absence of any doubtful situation which might prove otherwise. He shall also prove that the testator had the capacity to make a Will.
Intestate Successions Prevailing In India –
In cases, where there is no will or absence of a valid will, then intestate succession is followed as provided in the provision of Indian Succession Act, 1925. But as India is a secular state, there are various personal laws with respect to intestate succession for every religion. So, matters pertaining to intestate succession, the Court has the power to issue Letter of Administration or Succession Certificate.
Letter of Administration is granted by the Court in cases where the executor has either refused to take his responsibility or not capable or died. The Letter is issued by competent court to ensure proper distribution of the estate among its legal heirs. Usually, the whole or part of the estate of the deceased is given to the closest legal heir. But when there are more than one person making an application, the Court may decide whether to grant it to anyone person or more, and in case when there are no heirs to claim the estate, the court may give it to creditor of the deceased.
Succession certificate is another document issued by the Court to the person who is claiming right over the part of estate with regard to any debt or security of the deceased person, except for cases where Letter of Administration or Probate is required. For better understanding, a Succession Certificate can be obtained where-
- Probate or Letter of Administration is not required
- When deceased is Christian or Mohammaden
- When deceased is Hindu (who has left a will), probate is not necessary
- In case of joint family property under Hindu Law
Although, it shall be noted that Succession Certificate is applicable only for movable goods and not for immovable property. And merely obtaining a succession certificate shall not vest the absolute ownership of property in the hands of holder of certificate, rather it gives him the right to distribute the property as per the personal laws of inheritance of the deceased person. As per the Hindu law, the intestate succession follows wide array of heirs ranging from Class I heirs, Class II heirs, Agnates and Cognates. The share of each heir is calculated and mentioned under the Hindu Succession Act.
Read – RERA Act Explained
Intestate Succession Of Hindus (Sikh, Jains and Buddhist)
Hindu Succession Act speaks of share of each heir for every intestate succession, and this Act is also applicable on other religious faiths such as Sikh, Jains and Buddhists. Section 8 to 13 lays down the general rules for sequence of succession when a Hindu male dies intestate. Section 15 and 16 of the Act defines the class of heir when a Hindu female dies intestate. There is certain distinction made for distribution of property between a Hindu male and female.
When we talk about the word “property”, it includes all those properties of the deceased person that is inherited by that person. It includes both self-acquired property as well as his share in the coparcenary as per the Mitakshara which is inherited by the person from generations to generations.
Succession as per section 21A of Special Marriage Act, 1954 –
Under section 21 of the Act it is stated that any person whose marriage is solemnized under the Special Marriage Act, then the succession of that person shall be guided and regulated by the provision of Indian Succession Act, 1925. However, later an amendment was made in the Special Marriage Act, 1954 where section 21A was added. Section 21A stated that person whose marriage is solemnized under this Act professes the religion of Hindu, Sikh, Jain or Buddhist with the person who professes religion of Hindu, Sikh, Jain or Buddhist, then Section 21 of the Special Marriage Act will not be applicable on that couple and their succession will be regulated by the Hindu Succession Act only and not Indian Succession Act.
Thus, the law of intestate for Hindus, Jain, Sikh, Buddhist, Arya Samaj are codified under the Hindu Succession Act, 1956. The basic principles of delegation of intestate property are as follows-
● Male Hindus-
In case a male hindu dies intestate, then there are four classes of legal heir mentioned in the Act. The estate shall be devolved firstly to the Class I heirs of the deceased, whomsoever is available among those. The class I heirs include wife, son/daughter of deceased, mother, son/daughter of the predeceased son/daughter, widow of the predeceased son and some other close relatives from the immediate family of the deceased person. The property has to be distributed equally among all the class I heirs of the deceased, and there is no sequence followed among the Class I heirs, each one of them have to be treated equally.
For example- if A has died, he has left behind his wife B, widowed mother C, elder son D, daughter E and younger son F (who died earlier and has widow F1 and daughter F2). So, the property of A will be divided into 5 equal parts, one for each heir and the widow and daughter of F shall be getting one part collectively.
Then comes Class II heirs who will be getting a share in the property only if there is no one to claim from Class I heirs. The relatives listed in Class II are in sequence and it is mentioned that the relative named first in Class II shall be getting first preference before the others. The second relative in list will be called only if the first one was not present and the list shall go on. For example, Father of deceased is named first, then brother or sister of the deceased, so if there are no Class I heirs of the deceased then Father will automatically inherit the estate and if father is not there, then brother/sister of the deceased will inherit it fully.
Class III are Agnates and Class IV are Cognates. Agnates are the relations that are made only through the males of the family, and Cognates are the relations made not only by the males of the family. There are certain exceptional cases, where no Class II heirs are also found then the succession of estate would devolve upon the Agnates first failing which upon the Cognates of the deceased. Even in case of Agnates and Cognates, the closer relation will be preferred for the devolution of property, and in case where no heir or relatives are found in Agnates and Cognates also, then the property shall be devolved upon the government.
● Female Hindus –
In case, the deceased is a Female Hindu then the Class I relatives are similar to class I heirs of Male Hindus like the Husband, sons/ daughters, children of predeceased son/daughter, wife of predeceased son etc. If these relatives are not found, then the estate shall be devolved upon the heirs of the Husband. In case, if there are no relatives of husband also, then the property shall devolve upon the parents of the deceased woman, if alive.
One significant provision that should be noted here is that, that the property that was inherited by the female hindu from her parents shall revert back to the legal heirs of the father, under the condition if she doesn’t have any children left behind.
Apart from that the law has provided certain exceptional cases, for example if two people die simultaneously in an accident and the exact timing of the death cannot be ascertained then it is assumed that the older person died first unless there is evidence which proves the contrary. Moreover, in cases if the person is guilty of murder of the other person, then he shall not be eligible to inherit the property of the murdered person. However, murder of the person shall not disqualify the other heirs but it shall be resumed that the murderer died just before the death of the murdered person. These exceptional provisions are necessary when the matter of succession is being discussed with respect to its legal heirs.
Distribution Of Share Among The Class I Heirs (Section 10) –
Section 8 and 9 of the Hindu Succession Act talk about the sequence of the Class I heirs that it should be distributed simultaneously to all the legal heirs found from Class I. there is no preferential order presented in the section regarding that any of them should be given priority first. But the section doesn’t speak that each one of the heirs gets an equal share of the estate among the Class I. The computation of share of each heir is discussed under Section 10 of the Hindu Succession Act, 1956 which establishes the main Statute of distribution that is applicable on the class I heirs.
The Act has tried to keep the distribution fair for both the genders and so the share of male and female heirs is kept on an equal footing. The main aim of Section 10 is to deal with the division of share when there is more than one person to claim over the estate simultaneously as heir. There are certain rules established for the appropriate division of the property. For example, if there is widow, mother, son and daughter, then not everyone shall be getting 1/4th portion of the estate. The following rules will give you an insight about the share of each person, that he or she maybe allocated. The rules are as follows-
- The widows, if there are more than one shall be getting only one share of the estate, and share it equally among them, similar to the tenants-in-common and not like joint tenants.
- If there are more than one son or daughter, then each of them will get one share, including the mother of the deceased.
- In case where there are sons and daughters of predeceased son or predeceased daughter, then the children will be given one share of the estate belonging to their predeceased mother or father and distribute among them equally.
- Fourth one is in connection with the third rule, that in case there is widow of the predeceased son then she will also be part of the share that the children of predeceased son were getting. It will be distributed equally among them.
Thus, these were the four main rules that need to be taken into consideration while distributing the shares among the class I heirs appropriately. The distribution is based on the principle of equalization.
Thus, from the above context we learnt that India has diversified culture, traditions and customs and being a secular country, we need to respect the personal laws of all the religions. Thus, even the succession matters need to be dealt in their own specific way. In this article, we saw the basics of the hindu testate and intestate succession and why it is necessary to have a codified law for such matters or else, or it may lead to misuse of property and further cause some unavoidable chaos within the society, especially in matters where there are interfaith marriages registered under Special Marriage Act, 1954.
Read – What is POCSO Act ?
Refer – Hindu Succession Act, 1956
This Article is authored by Rhea Banerjee, pursuing B.A.LL.B from Indore Institute of Law.