According to the dictionary of Merriam-Webster, the term succession is defined as “the order in which or the conditions under which one person after another succeeds to a property, dignity, title, or throne”.[1] In other words, it defines the line of descendants in a family lineage. A Prince is next in line of succession after the demise of the King, similarly, the law of succession regulates who is to inherit the property after the death of the owner. In the modern world dynamics, a property must be owned by someone, an individual, a corporate person or the state. Therefore, explaining the need for laws of succession in the contemporary world.
In legal terms, the laws of succession deal with the order in which a person will succeed the estate of the deceased. One’s religion plays a crucial role in the process of inheritance of property as the succession laws are a matter of personal laws. In a country, as diversified as ours, there are different statutes to resolve the issue of transfer of property for people of different religions. The laws of succession for Hindus is codified under the Hindu Succession Act, 1956. While, the Muslim Personal Law Application Act, 1937 holds the laws of inheritance for Muslims and the Indian Succession Act, 1925 for Christians, Parsis and Jews.
The law of succession can be categorized into Intestate Succession and Testamentary Succession. The former is the situation of the death of a person without a will while the latter is the situation of the succession of property by a will of the deceased. A person is said to be dying intestate when he dies without making a valid will of the distribution of his assets. The inheritance in such cases is as per laws of succession applicable based on the religion of the person. For instance, if a Hindu dies in intestate, i.e. without a will, then his property will succeed to his heirs as per the laws of the Hindu Succession Act, 1955. It is important to note that the act only deals with intestate succession. The Testamentary Succession is the succession in which the deceased has already decided by will how the property will be succeeded. Therefore, the question of who are the heirs and what is their share is not valid in the case of Testamentary succession. However, the laws of Testamentary succession are laid down in the Indian Succession Act.
Succession under Hindu Law
As mentioned earlier, the laws of succession for Hindus is laid down under the Hindu Succession Act, 1956. It means it applies to all who are legally defined as Hindus. The Hindu Marriage Act, 1955 explains who are Hindus under Section 2. It includes Hindu by religion and any person who is a Buddhist, Jaina or Sikh by religion. Therefore, the applicability of the Hindu Succession Act extends to Hindus, Buddhists, Jains and Sikhs.
The law creates a difference in the succession of the property based on gender under Hindu law. Under Hindu Law of succession, there are two categories: in the case of deceased Hindu Male and deceased Hindu female. First, in case of the death of a Hindu Male, if married, the property is inherited by his mother, wife and children and if unmarried, it is transferred to the mother of the deceased. To substantiate, if Kamal, a Hindu, who is married and have three children (two daughters and a son) dies intestate, then his property will be divided into five shares and each party will be entitled to ⅕ of the total share. In this case, these parties include the mother, wife, two daughters and a son of Kamal(the deceased). These parties are termed as Class I heirs, also known as preferential heirs. The line of succession in the absence of Class I heirs is followed by Class II heirs, agnates, cognates and the government. In the case of class II heirs, there are nine sub-categories which are as follows:
Category I: Father
Category II: Son’s daughter’s son, Son’s daughter’s daughter, Brother and Sister.
Category III: Daughter’s son’s son, Daughter’s son’s daughter, Daughter’s daughter’s son, Daughter’s daughter’s daughter.
Category IV: Brother’s son, Brother’s daughter, Sister’s son, Sister’s daughter.
Category V: Father’s father and Father’s mother.
Category VI: Father’s widow (Stepmother) and Brother’s widow.
Category VII: Father’s brother and Father’s sister.
Category VIII: Mother’s father and Mother’s mother.
Category IX: Mother’s brother and Mother’s sister.
The rule is that an heir in the previous category excludes heirs in the later categories and all heirs of one category will take a share per capita. Further, there is agnates and cognates. A person is said to be an agnate if the two are related by blood or adoption wholly through males. While a person is cognate with the two are related by blood or adoption but not only through males. For example, a Brother’s son is an agnate while a sister’s son is a cognate. As per the law, an agnate gets preference over the cognate. In case there is no agnate and cognate, then the property is transferred to the government with all liabilities and obligations. In the case of the death of the Hindu female, the whole of her property is divided into her children equally. In case of the absence of children, five ‘entries’ are mentioned in section 15 of the Hindu Succession Act, 1955. If there no heir even in the five entries, in such a case, the property goes to the government by escheat.
Succession under Muslim Law
The laws of succession under Muslim law is based on pre-Islamic customs. The sources of these laws are the Holy Quran, Sunna (the practice of prophet), Ijma and Qiya. The customary principle of succession was male-centric as it excludes even the wife and children from the inheritance of property. Only nearer agnates were eligible for the succession of property of the deceased. Thus, if a man having a son and grandson dies intestate, then the entire property will be transferred to the son.
Later, new principles were imposed by the Prophet which included the wife and some near females in the line of inheritance. However, the new change of principles was not welcomed in the same by the Shias and Sunnis resulting in the formation of two different rules of inheritance: the Hanafis and the Shias. The Hanafi law of inheritance tries to create a harmonious blend of customary and new principles. It recognized the right of female agnates in inheritance. While the Shias formed a completely altered set of principles and rules.
Under the Hanafi law of inheritance, the heirs of Muslim deceased irrespective of gender are classified into four classes: the sharers, the residuary, the distant kindred and the State by escheat. Each class followed by the other. First, the sharers are given their share as specified by the Koran. These sharers include the wife, husband, daughter, son’s daughter, full sister, consanguine sister, mother, true grandmother, father and the true grandfather.
Under the Shia law of inheritance, the right of succession was based on blood relations( Nasab) and special cause (Sabab). However, in modern India, the heirs are divided based on marriage and consanguinity. The former include husband and wife while the latter include parents, children, grandparents, brothers, sisters, parental uncle and aunt, maternal uncle and aunt.
References
- PARAS DIWAN, FAMILY LAW, 469-517(Allahabad Law Agency, 2021).
