Inheritance Rights in India

What does inheritance mean?

Inheritance can very loosely be defined as the property given to a descendant upon the death of a relative. Right of Inheritance is devolution of the property, titles, debts, rights, and obligations to another person on the death of an individual. Lack of knowledge about inheritance rights in India is the primary cause of family partition and it becomes important to understand what the right of inheritance of legal heirs in India is. A person can succeed to or inherit one’s property in two ways:

• By a will (Testamentary Succession)- The person who makes the will is known as the testator and the person in whose favor the will is made is called the legatee.
• Through laws of Intestate Succession- In case a person dies without making a will then his property is devolved among his heirs through the laws of intestate succession. 

It may involve either movable or immovable property.

Table of Content:

• What does inheritance mean? 

• What is the property inheritance law in India?

• What are the types of Property that can be inherited?

• What are the types of Inheritance?

• How is inheritance dealt with under Hindu Personal Laws?

• Division of Property in case of death of a coparcener of a Hindu Undivided Family

• How is inheritance dealt with under Muslim Personal Laws?

• How is Christian and Parsi inheritance dealt with under the Indian Succession Act?

  • Christian Inheritance (Non-Testamentary)
  • Rules for Division for Parsis

• What are the rights of the women in terms of inheritance and succession laws in India

• FAQ’s

What is the property inheritance law in India?

In India inheritance is dealt with in 2 scenarios.

• Under Personal inheritance laws which have a religious undertone: It is applicable on succession without a will (intestate succession). Under the Personal Laws, we have the Hindu Succession Act,1956 and the Muslim Personal Laws (Shariat) Application Act.

• Under the Indian Succession Act, 1925: It applies to testamentary succession of Hindus, which is a transfer of property by a will. A person can transfer his own property to any person he wants by getting a will made. 

“In order to truly bring inequality in the country, our personal laws need to be amended in order to provide a strong base for a fair, equal and proper legislature,” says Advocate Ankit Sharma.

What are the types of Property that can be inherited? 

The various types of Property that can be inherited are 

1. Ancestral Property – This can be defined as the property which was inherited by the deceased through 3 generations or more.

2. Self Acquired Property- This shall include the property which the deceased had purchased or acquired in his/ her lifetime.

As mentioned before the property can be movable or immovable in nature.

What are the types of Inheritance?

Inheritance can be done either through a will or testament or via intestate succession (which happens if there is no will drawn by the deceased). When a will is drawn, it cannot include Ancestral Property but only the share of ancestral property that is available to the person. In the case of intestate succession, the Indian Succession Act or the Hindu or Muslim Personal inheritance law shall be put to use.

How is inheritance dealt with under Hindu Personal Laws?

The Hindu Succession Act is applicable to Hindus, Jains, Buddhists, and Sikhs. It takes into consideration that the deceased shall have a different class of heirs and such different classes shall have different stakes over the property. These classes are

Class I Heirs:

1. Widow

2. Son 

3. Daughter

4. Mother of the intestate 

5. The heirs of pre-deceased children of the intestate (which shall include the widow, sons, daughters of the predeceased children as well)

Class II Heirs:

1. Father

2. Grand Parents

3. Grand Children

4. Brother

5. Sister

6. Other relatives

Agnates: These are the blood relations to the deceased through males. For example bother’s son, brother’s daughter, son’s son, etc.

Cognates: These are the blood relations to the deceased through females. For example sister’s son, sister’s daughter, daughter’s son, etc. 

In the case where a Hindu male passes away the following shall take place

1. The Class I heirs get equal shares

2. In case of no Class I heirs it shall be equally divided amongst Class II heirs

3. In case of no Class I or Class II Heirs the property shall be divided amongst the Agnates and then the Cognates.

4. If none of the above-mentioned heirs exist then the property shall pass on to the Government and this is known as Escheat. 

In case a Hindu Female passes away the property shall be divided amongst

1. First her children and husband

2. Then among her husband’s heirs

3. Then among her father and mother

4. Then among her father’s heirs

5. Then among her mother’s heirs

Division to the Heirs

Class I Heirs

Class II Heirs

It is important to know that Class II Heirs do not get equal representation and that the heir in an earlier category shall exclude the heirs in the subsequent category. All the persons in one category shall have equal representation.

Division of Property in case of death of a coparcener of a Hindu Undivided Family 

According to Section 6 of the Hindu Succession Act, 1956, upon the death of a coparcener, there is no automatic partition but the same can be brought in terms of a deemed partition for the purpose of succession. Such a division can be called in by any Coparcener. It is pertinent to note that in terms of Section 6 of the Hindu Succession Act, there shall be the distribution of property to the heirs via succession and not to the Coparceners of a Hindu Undivided Family if there exists a surviving male or female relative who is a Class I heir.

How is inheritance dealt with under Muslim Personal Laws?

Under Muslim Personal Laws, Inheritance is dealt with in 2 manners; Per Capita Distribution (Shia), Per Strip Distribution (Sunni). There is no differentiation between Self Acquired and Ancestral Property under Muslim Inheritance. This can be better understood here

Mode of distribution

How is Christian and Parsi inheritance dealt with under the Indian Succession Act?

Under the Indian Succession Act, inheritance is dealt with for the Christians under section 31 to 49 and for Parsis from Section 50-56. It is pertinent to note that there is no distinction between the rights of the widow and the rights of the widower for intestate succession.

“The problem that is widely unnoticed is that there is a need for a separate legislature for the Parsis as there are many loopholes in the current law,” says Advocate Ankit Sharma.

Christian Inheritance (Non-Testamentary)

Rules for Division for Parsis

What are the rights of the women in terms of inheritance and succession laws in India

One of the major concerns that have arisen out of these personal laws is that there are unequal rights given to women. This stems off from the understanding that most of these personal laws are archaic in nature and need to be amended to a certain extent. The most notable amendment was to the Hindu Succession Act in 2005 which gave daughters equal rights as sons in terms of them being a coparcenary and in terms of succession. Until 2005, the property rights of son and daughter were different. Only an unmarried daughter had a right in the ancestral property. But post-2005, a daughter has similar rights and duties that a son has. She has an equal right/share in the ancestral property.  In the case of the father’s self-acquired or separate property, if the father dies without leaving behind a will, the daughter being a Class I heir will have equal rights with her mother, grandmother, and sister or brother.

A detailed analysis of women’s rights has been done above in this blog.

That being said, there are still certain instances where women are not provided the same rights as men. Under Muslim Law, women do not have the same rights as men and tend to have a lesser share on the property than their husbands. 

In terms of Christian inheritance, we, however, see that there is no such gender bias and women have the same rights as men do.

Inheritance Rights of Children

A son has a right by birth in his father’s and grandfather’s property. In his grandfather's ancestral property, he has equal rights with his father and other family members. In the case of his father’s self-acquired or separate property, if the father dies without leaving behind a will, then the son is a Class I heir will have equal rights with his mother, grandmother, and sister or brother. An illegitimate son is not entitled to get a share in his father’s property. A posthumous child, who is in the womb of the mother at the time of death of the father, is entitled to a share in his father’s property. The only condition involved is that he should be alive on his birth.

Inheritance Rights of Grandchildren

A grandchild, both grandson, and granddaughter have an equal share with their father in their grandfather’s ancestral property. In the case of grandfather’s self-acquired or separate property, a grandson will have inheritance right only when his father predeceased his grandfather. 

Rights of a Spouse

A wife has no right in the ancestral property. Therefore, a widow has no right over the husband’s ancestral property. She is a Class I heir, will have a right in the self-acquired property of her husband. A widowed mother also has a right in her son’s property.

Inheritance Rights of an Adopted Child

The inheritance rights of an adopted child are similar to that of a natural-born. Upon adoption, a child loses his rights in the biological family but if a property vest in him before the adoption, then the property will continue to be in his name.  

Will under the Indian Succession Act

A will or testament is a legal document/ declaration expressing the will of the person, containing the names of one or more persons who are to manage his estate or acquire his estate after his death. A probate is a copy of the Will, that is certified under the seal of a competent Court with a grant of administration of the estate to the executor/ legatee of the testator. It acts as official evidence of an executor's authority.  After the death of the person who made the Will, a proceeding may be initiated in court to determine the validity of the will that the testator may have created. The proceedings are known as probate proceedings. Generally, during the proceedings, the witnesses are called upon to testify upon the validity of the Will. The person making the Will should be a competent individual, that is, he must not be a minor and should be a person with a sound mind. The probate court only decides upon the validity of the Will and does not deal with the case on merits. 

Conclusion 

Upon the death of a person, before dividing the property, the successors must be sure that no debt is attached to the property. Once succession to the property is confirmed, the heir must apply for mutation of property in his own name. Mutation updates the government records and doesn’t act as a transfer of title. Once you acquire the property, you can reside in, lend or sell the property. 

FAQ's

Who inherits when there is no will in India?

In cases where there is no Will, succession follows the intestate succession route as laid out under the provisions of the Indian Succession Act. However, vesting takes effect under personal law, which is different for Hindus (sometimes different for Sikh, Buddhist, and Jain), Muslims, Christians and Parsees who inherit the estate of a person dying intestate.

Do grandchildren have inheritance rights in India?

Indian law concerning Hindus is very clear that self-acquired intestate (when no will have been made) property of the deceased male/female Hindu is inherited by his/her sons and daughters in equal proportion along with the surviving spouse. The grandparents can transfer the property to whoever they wish in a will.

Who is the legal heir for the mother's property?

After the mother’s death, the legal heir to the property is her children and husband with equal rights/shares in the property if she had not inherited the property as ancestral property. Each of you has an.

Can a married daughter claim her mother's property?

A married daughter has an equal right on her mother's property as per the Hindu Succession Act, 2005 and also the daughter of the predeceased daughter can also claim for the property. Sons and daughters have several rights as a coparcener.

Can a father disown his child from his property?

If the property is self-acquired by the parents, a son or a daughter has no legal claim in it. However, it should be noted that if parents die intestate, the son or the daughter, no matter how poor their relationship was with the parents, will have succession rights in the self-acquired property of the parents.