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Notes On Succession Act
Notes On Succession Act
There is no bigger pain than losing a loved one especially a family member,
however, the same can get miserably painful in case there is a family dispute
with respect to the inheritance of property. The same arises because of
deficiency of legal knowledge on property inheritance in India. According to
reports, deficiency in legal knowledge is the principal reason for family partition
and therefore, it is critical to recognise the prevalent property inheritance rights of
legal heirs to minimise the pain of loss of a loved one.
Legal formalities to get the property transferred may differ depending upon the
nature of the property, legal heirs’ rights over the property, the number of legal
heirs and many others etc.
What is a ‘Will’?
A certified copy of the Will that is certified with the seal of a competent court of
law with a grant of administration of the property to the legatee/ executor of the
testator is called a ‘probate’. A probate, since it is a certified document of the
court acts as an evidence of the executor's authority.
A court may initiate a legal proceeding also called as probate proceedings after
the death of the person who made the will (executor/ legatee) to determine the
authenticity of the Will that has been created. Ordinarily, during the course of the
court proceedings, the witnesses are asked to appear in the court to testify upon
the authenticity of the Will.
A Will can only be created by a competent person with a sound mind and who is
above 18 years of age i.e. not a minor. Additionally, the probate court does not
deal with the merits of the case but only decides upon the validity of the Will in
question.
Who can be an heir under Indian law?
It is crucial to identify a legal heir because they are the ultimate successors over
matters relating to insurance claims as well as property inheritance.
The following can be legal heir under the Hindu Succession (Amendment) Act, 2005:
Class I:
Widow,
Daughter,
Mother,
Son,
Daughter of a son who is deceased
Daughter of a daughter who is deceased
Daughter of a pre- deceased son of a pre- deceased son
Widow of a son who is deceased
Widow of a pre- deceased son of a pre- deceased son.
Son of a son who is deceased
Son of a daughter who is deceased
Son of a pre- deceased son of a pre- deceased son
In case, there is no heir left from Class I, then the property goes to the heirs of
Class II, who are the relatives defined under the Indian Succession Act. The
defined Class II heirs are:
Class II:
I
father
II
III
IV
sister’s son,
sister’s daughter
brother’s daughter,
brother’s son,
V
father’s mother
father’s father
father’s widow
brother’s widow.
VII
father’s sister
father’s brother
VIII
mother’s mother
mother’s father
IX
mother’s sister
mother’s brother
Who can be a legal heir of a female Hindu?
The property of a female Hindu dying intestate will get transferred to:
the sons and daughters (which includes the children of any son or
daughter who are not alive) and the husband,
the heirs of her husband,
to her mother and father,
to the heirs of her father; and
to the heirs of her mother.
Under the Act, if any estate succeeded by a female from her father or
mother will get transferred, in the absence of any daughter or son of the dead
(including the children of any pre- deceased daughter or son) to the heirs of
her father.
Under the Act, if any estate succeeded by a female from her husband or
from her father-in-law will get transferred, in the absence of any daughter or
son of the dead (including the children of any pre- deceased daughter or son)
to the heirs of her husband.
Under the Muslim Personal Law (Shariat) Application Act, 1937 the following can
be legal heir:
Widow
Daughter
Son
Mother
Father
Sister
Brother
Direct blood line, as between a son and his father, grandfather and
great- grandfather, and so on in the direct increasing blood line; or between a
son and his son, grandson, great- grandson and so on in the decreasing blood
line.
If a person has died intestate and is only left with a great- grandfather,
an uncle, and a nephew, but no person with direct kinship will take equal
shares as under the 3rd degree of kinship.
Under Section- 54 of the Indian Succession Act, 1925, a legal heir under the
Parsi personal laws are as follows:
The first step is to apply for a Legal Heir Certificate under the District Tehsildar
Officer via the District Court having the jurisdiction over the area.
The following documents/ details are required to get a legal heir certificate:
The laws of inheritance in India are applicable based on types of succession and
religion which include:
The Hindu Succession Act, 1956/ 2005 - This Succession law applies
on succession without a will i.e. intestate succession among Hindus which is
also applicable to Sikhs, Jains and Buddhists.
In India, the following properties are recognised by the Indian property laws:
Separate property - In case a person obtains a property from any other
relation (different ancestors), which is subjected to not be treated as joint
family property is categorised as a separate property.
However, an illegitimate son does not have a right in his father’s property.
Besides this, a child who is still not born but in the mother’s womb has a right in
his father’s property even if he has died intestate. But the sole condition to avail
the right to succession is for the father to have be alive when the child was born.
The property rights for a son and a daughter were totally different before 2005,
earlier, only an un-married daughter had a right to share in the ancestral
property. However, after 2005, a daughter was granted similar rights as well as
duties as that of a son. A daughter has equal share of right in the ancestral
property.
Besides this, in a situation where the father has a self- acquired property or a
separate property and he dies intestate, then the daughter who is a Class I heir
will have succession rights equal to her living mother, sister, grandmother and
brother.
Every grandchild including both grandson and granddaughter have the equal
right to share in the ancestral property of their grandfather with their father.
A wife has no right to share in the ancestral property. As a result, a widow has
absolutely no right over her husband’s ancestral property. However, since a wife
is a Class I heir, the wife will have the right in the self- acquired property of her
husband. Moreover, even a widowed mother also has a right in her son’s
property.
In India, the rights of inheritance of an adopted child are quite similar to that of a
natural born child.
However, once adopted, the child relinquishes his/ her property rights in the
biological family however if the child obtains a property before the adoption, then
the property shall continue to be in his/ her name.
Conclusion
Immediately after the demise of a person, before splitting the property and assets
of the deceased, the potential successors must ensure that there is no debt
attached to the property/ assets of the deceased.
Now, once the legal heirs to the property/ assets of the deceased are confirmed,
the legal heir must register for the mutation (change of title ownership) of
property in his/ her/ their own name. The procedure of mutation revises the
government records by transferring the title of property. The legal heir after
acquiring the property, can reside in, lend or sell the property according to his/
her/ their own desire.