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Nidhi Dutia,
Bharti Vidyapeeth, New Law College
INTRODUCTION
The act of succeeding or following, as of events, things, or locations in a sequence, is referred to as succession. But it has a specific meaning from a legal standpoint. It represents the giving or receiving of rights by one party to another. Every legal system must establish rules for how property will be divided after the death of the owner and beneficiary. The laws of succession are subject to several restrictions under modern legal systems. These rules might be based on the decedent's will. The owner of the property may pass away intestate, for example, in which case a will cannot be made. There must be universally accepted rules guiding the transfer of his property to his successors in such circumstances.
But there's no denying that these standards mostly reflect the social setting in which that individual lived. They reflect how society views the correct succession process for allocating assets after a person's passing.
The law of inheritance comprises rules that govern the devolution of property, on the death of the person, upon other persons solely on account of their relationship with the former.[i]
Speaking purely in legal terms, Black’s Law Dictionary defines inheritance as the receipt of a property from an ancestor under the laws of intestacy i.e. by bequest or devise.[ii]
Each religion in Indian civilization is governed by its law. Property rights are governed by these personal laws as well. Inheritance and succession are crucial elements in passing on assets and money from one generation to the next. This essay aims to examine and understand the tenets and practices of inheritance under Islamic and Hindu law. This article discusses the succession rights of women under both statutes in addition to examining the various rules of succession.
HINDU SUCCESSION ACT
A. INTRODUCTION
The "Hindu Succession Act[iii]" addresses succession and inheritance. This Act creates a comprehensive and consistent framework. Thus, this Act covers and unites all aspects of Hindu succession.
This rule applies to anybody who self-identifies as Hindu, regardless of whether they adhere to one of the various sects or schools that make up the Hindu faith. This also encompasses Sikhism, Jainism, and Buddhism. All of India is covered under the statute's application.
Despite the foregoing, this Section shall not apply to any Scheduled Tribes covered by "Article 366 of the Constitution[iv]," unless the Central Government otherwise directs by publication in the Official Gazette.
The law of succession can be categorized below heads:
1.Testamentary Succession - The property (whether distinct, divided, or undivided) passes to the next of kin byin the "will" of the person who has ownership of or an interest in it. It covers a variety of topics, including the laws governing the transfer of property to relatives.
2.Intestate Succession - It is based on the laws that regulate how the property of the deceased is distributed to heirs only based on their familial ties when a person passes away without leaving a will or testament.
B. TYPES OF PROPERTY THAT DO NOT FALL UNDER THE JURISDICTION OF THE LAW
As mentioned in Section 5[v], this Act does not apply to the following assets:
1. Property that is particularly excluded from the application of this Act by "Section 21 of the Special Marriage Act, 1954[vi]" is a property whose succession is subject to the terms of
“The Indian Succession Act, 19257”. The Special Marriage Act, as specified in Section 21 thereof, shall govern the succession to the property of any person whose marriage is solemnized under this Act and the property of the offspring of such marriage.
2. Any estate or assets that would have passed to the only heir following an earlier covenant or agreement between the Ruler of an Indian State and the Government or an earlier law. 3. The Valliamma Thampuran Kovilagam Estate and the Palace Fund are governed by the Palace Administration Board under the power granted by the Proclamation (IX of 1124), dated 29th June 1949, issued by the Maharaja of Cochin.
C. DISTRIBUTION OF PROPERTY
"Section 8[vii]" lays out the basic requirements for male succession. The Act will take effect if a succession becomes feasible after it becomes law, as stated in Section 8. A male Hindu's death doesn't need to take place after the legislation is put into effect for his fortune to be divided by inheritance.
According to Section 8, the succession shall begin and the property shall pass:- (a) If a person dies without leaving a will, their assets will be distributed by Section 8.
(b) Class II can be eligible to inherit if Class I has no specified heirs.
(c) Thirdly, the deceased's agnates would inherit if they were not a direct descendant of Class 1 or Class 2.
(d) If there are no agnates, to the decedent's cognates.
D. CLASSIFICATION OF HEIRS
Class 1 heirs[viii]
The following heirs find a place in Class I:
Mother [M]
Widow [W]
Daughter [D]
Widow of a predeceased son [SW]
Daughter of a predeceased son [SD]
Daughter of a predeceased daughter [DD]
Daughter of a predeceased son of a predeceased son [SSD]
Widow of a predeceased son of a predeceased son [SSW]
Son [S]
Son of a predeceased son [SS]
Son of a predeceased son of a predeceased son [SSS]
Son of a predeceased daughter [DS]
Daughter of a predeceased daughter of a predeceased daughter [DDD]
Son of a predeceased daughter of a predeceased daughter [DDS]
Daughter of a predeceased daughter of a predeceased son [SDD]
Daughter of a predeceased son of a predeceased daughter [DSD]
Class II heirs will not receive any inheritance until all Class I heirs are present. The property belongs to each Class I heir equally, but each heir's share is theirs alone; no one else has any legal right to the inheritance. Under any conditions, Class I heirs are not susceptible to disinheritance.
Eight female and four male heirs were all that made up Class I before the adoption of the Hindu Succession (Amendment) Act, 2005, which added eleven female and five male heirs to the mix. Mother M's mother would inherit his estate if he died while his mother was still living. The mother, on the other hand, must be biological or adopted, not a stepmother.
Widow
A widow will receive an inheritance equal to her son's. If there is more than one widow, they will pool their wealth to obtain a single portion equivalent to the son's portion, which they will then divide among themselves. The marriage had to be officially recognized.
It was decided in the case of "Ramkali v. Mahila Shyamwati[ix]" that a woman whose marriage was pronounced null and void upon her husband's death would not be regarded as his widow and would not be entitled to inherit any of his property. In the event of divorce or remarriage, the widow (wife of the deceased) is not entitled to any property. Furthermore, in cases of judicial separation, the widow would be entitled to a share of the property because judicial separation does not imply the end of the marriage and marriage might continue even after judicial separation.
Daughter
A stepdaughter or an illegitimate daughter would not be considered a "daughter," although a biological or adoptive daughter would. A daughter born from a marriage that has been declared null and void by a court is a legitimate daughter and is entitled to her father's wealth.
There is no consideration for the daughter's marital status, financial stability, or anything else. The daughter's share is the same as the sons'.
Son
A son might be biological or adopted; a stepson or an illegitimate child are not included in the definition.
2. Class 2 heirs [x]
Following is the list of people included in class 2 heirs
Father
(1) Son’s Daughter’s son, (2) Son’s daughter’s daughter, (3) Brother, (4) Sister
(1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’s daughter’s son,
(4) daughter’s daughter’s daughter
(1) Brother's son, (2) sister's son, (3) brother's daughter, (4) sister's daughter.
Father’s father, father’s mother
Father’s widow, brother’s widow
Father’s brother, father’s sister
Mother’s father, mother’s mother
Mother’s brother, mother’s sister
If no Class I heir claims the inheritance, it passes to the Class II heirs. In "Kalyan Kumar Bhattacharjee v. Pratibha Chakraborty[xi]", the defendant's unattached family, Ranjit, inherited his stock's share of the property. He left without a trace, and his two living sisters divided the land inversely between them. The complainant's family, Jagadish, prepared a will in which he left everything to the complainant and also failed. Still, the defendants ultimately converted them to leave, claiming, among other effects, the fact that the property was preliminarily possessed by three sisters named Kalyan, Jagadish, and Ranjit. However, his property would be given to his Class II heirs at law, if a single Hindu man failed.
In an analogous tone, if there are no Class II heirs at law present but Class III or IV heirs at law are present, also the property will pass to the Class III or IV heirs at law.
E. SUCCESSION RIGHTS OF FEMALES UNDER HINDU LAW
Historically, women's inheritance rights have been severely restricted. They've all been fighting and pushing for a long time in order to share in their father's inheritance.
The 2005 Amendment Act[xii] resulted in a significant change in that daughters may now become coparceners in their father's Joint Hindu Family. Furthermore, whether she is or is not married makes no difference.
As a result, girls have equal rights to inherit coparcenary property as boys. As a result of the 2005 Amendment, the following occurrences are now possible:
The Act no longer forbids a woman from transferring self-acquired property to a family trust.
If a parent dies, his daughter, whether married or unmarried, is entitled to an equal portion of his wealth.
Daughters now have the right to claim a share of the coparcenary property.
These days, ladies can start not only a coparcener but also a new family of their own, referring to their joint family.
As a result, women in Hindu families now have the same rights as their sons under the coparceners, bringing them closer to equality with their male counterparts.
III. MUSLIM SUCCESSION ACT
A. INTRODUCTION
In Islam, inheritance is governed by the following broad laws that apply to all schools of thought.
According to Section 51 of the Mulla law, there is no distinction between the decedent's movable and immovable estate.
Neither inherited riches nor wealth gained through self-acquisition are recognized.
The issue of who gets what property arises only when a person dies.
A Muslim youngster does not automatically inherit the riches of his family.
Section 52 does not recognize birthright. An heir-apparent's or heir-presumptive's right to the property that he would have inherited as an heir if the ancestor had lived only becomes operative upon the ancestor's death.
Alternatively, once an administrator is chosen, he becomes the legal owner of the estate; until that time, the probate judge has title.
An executor or administrator has the same authority as the deceased person to collect debts and file lawsuits in the deceased person's name. Except for libel, he has the right to bring or defend any legal action in support or opposition to his death. The executor is responsible for all parts of the funeral, the estate's inventory and accounting, the payment of any remaining liabilities, and so on.
B. TYPES OF SUCCESSION
When someone dies, their belongings may be dispersed in one of two ways: according to the terms of their Will (called testamentary distribution) or according to the rules of succession (called intestate distribution). It is broadly divided into two types: non testamentary and testamentary succession of property.
Non-testament succession is governed by "The Muslim Personal Law (Shariah) Application Act of 1937[xiii]". In contrast, the inheritance of a testate (a person who has formed a will prior to his death) is governed by Shia and Sunni Shariah Law.
If the property in question is immovable and is located in West Bengal, Chennai, or Bombay, Muslims must follow the Indian Succession Act of 192515. This exception only applies to willbased inheritance.
If no barriers to inheritance exist, the heirs of a deceased Muslim are his or her rightful successors who stand to inherit the deceased's property under Sharia’s law. The estate will be owned by the heirs as tenants in common, with everyone receiving a percentage. In Muslim law, heirs are just tenants-in-common because joint ownership is not recognized.
C. CLASSIFICATION OF HEIRS
The heirs can be divided into two groups: the Sharers and the Residuary."
The spouse, wife, father, mother, daughter, full sister, consanguine sister, and uterine brother are all considered sharers. Four of these Sharers get inheritances as both Sharers and Residuaries. The father, daughter, full sister, and consanguine sister all come from the same family.
If the immediate Sharer dies and any assets remain after being distributed among the Sharers, such assets will pass to the Reliquaries.
A third type of kin group consists of persons who are neither Sharers nor Reliquaries yet have a common ancestor. Step-parents and step-children, on the other hand, cannot inherit from one another. If no live Natural Heirs exist, the deceased's estate will "escheat" to the government. If a person's estate has no living heirs, it will be transferred to the state.
D. DISTRIBUTION OF PROPERTY
Under Muslim law, the estate may be divided in two ways: per capita and per strip. The per capita distribution is mostly used in Hanafi law. This method requires a fair distribution of inheritance among heirs. As a result, the proportion of the inheritance that each individual receives is determined by the number of heirs.
Shia law makes use of strip distribution. In this situation, the inheritance will be distributed to the heirs based on their social standing, or "strip." As a result, the size of the inheritance is determined by the branch and the number of persons in that branch. If there is no genuine heir in the first line of succession, the estate passes to the next generation, and so on.
The more proximate heir has the right to disinherit any distant heirs, according to Muslim law.
To put it another way, if two people claim descend from the same ancestor, the one who is more closely related to the deceased (in terms of degree) will disinherit the other. According to Muslim jurists, a person does not even have an inchoate claim to his ancestor's property until that ancestor dies, which is why they deny the right of representation.
E. HANAFI INHERITANCE LAW
Under Hanafi law, only male descendants of the deceased are considered heirs. Each of the heirs holds a piece of the inheritance in their own name.
Sunni law categorizes inheritors into three groups:
Those recognized as "Quota Heirs" have preference in succession and are allocated a portion of the state's resources. From the perspective of a girl, family members can be anyone, including parents, grandparents, husbands, brothers, and so on.
The remaining heirs (or "residuaries") will receive the remaining property once the Quota- heirs have received their inheritance. Male and female relatives from a second branch of the family tree have been added.
If a person has no living relatives, their fortune will be distributed to the government.
F. SHIA INHERITANCE LAW
The two main ways in which Shia law classifies heirs (affinity) are consanguinity (a blood relationship between two people) and marriage. Consanguineous heirs are also known as Nasab heirs, whereas affinity heirs are referred to as Sabab heirs.
Blood relationships are used to further divide the population into three groups. In this case, the first person disinherits the second, and the second person prevents the third from inheriting.
People in the first class are individuals who are related to you directly through your parents, children, or other relatives. The second group consists of grandparents, siblings, and their offspring. The third group consists of uncles, aunts, and their kids from both parents.
G. SUCCESSION RIGHTS OF FEMALES UNDER MUSLIM LAW
In Islamic law, male and female heirs have equal inheritance rights. When a Muslim dies, all male and female heirs receive their portion of the estate at the same time, if the deceased has both male and female heirs. Inheritance is not gendered, albeit a man's share is generally twice as large as a woman's.
According to Islamic law, a male heir receives neither Mehr nor maintenance from his father, whereas a female heir receives (or expects to receive in the future) extra money or property as her Mehr and maintenance from her spouse. Furthermore, the male heir is primarily liable for his children's support, whereas the female heir may be accountable for her children's support only in extreme circumstances.
H. RIGHT OF SUCCESSION OF A WIDOW
Under Muslim law, no widow is barred from inheriting. After the deceased husband's funeral and legal fees and duties are met, a Muslim widow with no children is entitled to one-fourth of his estate. However, a widow with children or grandchildren is entitled to one-eighth of her late husband's wealth. If a Muslim man marries while ill and dies of the same illness without quickly recovering or producing children, his wife loses her claim to inherit from him. However, even if the husband divorces her while he is sick, the widow's right to her share of the inheritance continues until she remarries.
I. COMPARISON AND DIFFERENCES
Following are the differences between the two laws:
1. In case of distribution of property
HINDU LAW - There are numerous categories of people who are eligible to claim the property as an inheritance. According to Hindu law, classification consists of the following components:
a. Class I heirs
b. Class II heirs
c. Agnates
d. Cognates[xiv]
MUSLIM LAW - The classification according to Muslim law is as follows:
i. Sharers;
ii. Residuary; and
iii. Distant cousins[xv]
The Shia school of thought does not recognize the category of distant relations, although Sunni law allows it because the majority of people are Sunni Muslims.
2. In case of Property classification
HINDU LAW - Hindu law considers inherited property to include ancestral property. Coparcenary property is another term for it. Section 6 of the Hindu succession statute[xvi] details the allocation of property among male co-heirs. Self-acquired property by family members is another sort of property under Hindu law. This Hindu succession regulation does not require self-acquired property.
MUSLIM LAW - There is no concern for ancestral property in Muslim law. They will either own property separately or jointly. This law concerns the right of inheritance over specific property. The property will be allocated per individual and per stripe.
3. In case of the inheritance rules for females
HINDU LAW - Prior to the change, property inheritance was restricted to males under Hindu succession legislation. Women now have the same succession rights as men, thanks to a 2005 law. The notion of females includes mothers, widows, and unmarried or married daughters.
MUSLIM LAW - Females were allowed property rights under Muslim law at the adoption of their own law. Women often receive half of the male share amount under Shia law. This is because Muslim women are entitled to maintenance and dowry upon marriage, whilst Muslim men are only entitled to ancestral property.
4. In case of the unborn child
HINDU LAW - According to Hindu law, if a child is in the mother's womb, it is considered to be alive, and a piece of the coparcenary property is assigned to it.[xvii]
MUSLIM LAW - A foetus cannot inherit property until it is born alive, according to Muslim law. This means that a child is considered to be a living person even in its embryonic form and is instantly eligible to inherit property if born alive. If the child is not born alive, its interest in the property is immediately forfeited, and property shares are distributed as if the infant/embryo did not exist.
5. In case of the succession of government
HINDU LAW - "Section 29 of The Hindu Succession Act[xviii]" states that if the deceased has no legal or common heirs, the property would be automatically administered and enjoyed by the government.
MUSLIM LAW - If there are no surviving legal heirs, the state may acquire a decedent's property. This is because the state is the ultimate heir of every deceased individual.
V. CONCLUSION
In conclusion, it's clear that Hindu and Muslim laws reflect profound differences when it comes to succession. The Hindu Succession Act outlines different categories of successors such as Class I, Class II, agnates, and cognates. It considers properties passed down from ancestors and underwent some significant changes in 2005. These alterations paved the way for women to enjoy equal rights in property inheritance, thus fostering gender equality. Interestingly, Hindu law uniquely stipulates that even an unborn child can be considered an heir.
Under the Muslim Succession Act, inheritors break down into two categories: sharers and residual heirs. There's a contrast in the inheritance portions allocated to males and females. Unlike other laws, Muslim law doesn't consider the concept of ancestral property. Also, the law has distinct rules for unborn children; they must be born alive to qualify for inheritance. Whether it's our law or theirs, if there are no legal heirs, the government has the right to take the property. This shows the different ways society and cultures operate.
REFERENCES
[i] Mulla, Hindu Law (2), (Butterworths, New Delhi, 2001), 277.
[ii] Bryan A. Garner (ed.), Black Law Dictionary, (West Group. St. Minn, 7th edition), 787.
[v] Section 5 in The Hindu Succession Act, 1956, https://indiankanoon.org/doc/1290386/.
[vi] Special Marriage Act, 1954, Sec. 21, Act No. 43, Acts of Parliament, India 7 The Indian Succession Act, 1925
[vii] Section 8 in The Hindu Succession Act, 1956, https://indiankanoon.org/doc/1968317/.
[viii] The Hindu Succession Act, 1956, Indiankanoon.Org, https://indiankanoon.org/doc/685111/.
[x] The Hindu Succession Act, 1956, Indiankanoon.Org, https://indiankanoon.org/doc/685111/.
[xii] The Hindu Succession (Amendment) Act, 2005 (Jan. 20, 2012), https://faolex.fao.org/docs/pdf/ind211577.pdf.
[xiii] The Muslim Personal Law (Shariah) Application Act, 1937, Act NO. 27, Acts of Parliament, India 15 The Indian Succession Act, 1925
[xiv] Section 8 in The Hindu Succession Act, 1956, https://indiankanoon.org/doc/1968317/.
[xv] Microsoft Word - Workshop_Muslim_Inheritence, (Mar. 25, 2019), https://districts.ecourts.gov.in/sites/default/files/jcjponduru.pdf
[xvi] Section 6 in The Hindu Succession Act, 1956, https://indiankanoon.org/doc/1883337/.
[xvii] Section 20 in The Hindu Succession Act, 1956, https://indiankanoon.org/doc/895395/.
[xviii] Section 29 of The Hindu Succession Act, 1956, https://indiankanoon.org/doc/1916997/