Sunday, December 25, 2011

The Law of Succession- Expert Opinion

In India, there are a number of different succession laws, each purporting to reflect the diverse and differing aspirations, customs, and mores of the community to which the statute in question applies.

WHILE RESPONDING to the various queries that have been addressed to this column over the last few months, I have found that a gradually increasing number pertain to issues of succession. People are interested in knowing about the flow of title upon the demise of the person who was the titleholder.

The law of succession in India falls within the realm of personal law. Due to this, we have so many different succession laws, each purporting to reflect the diverse and differing aspirations, customs, and mores of the community to which the statute in question applies.

You have the Hindu Succession Act, the Parsi Succession Act, the Indian Succession Act (which applies to Christians for the purposes with which we are now concerned), and even a Jaina Succession Act (which has of course now fallen into disuse, since Buddhists, Jains, and Sikhs are all now governed by the Hindu Succession Act). As far as Muslims are concerned, the law of succession falls into two broad streams, the Shia law of succession and the Hanafi law of succession. Both these laws of succession form part of the common law of India and are recognised as having the force of law by virtue of the Sharia't Laws (Application) Act.

The Hindu Succession Act is a striking departure from the pre-existing ancient Hindu law as had been codified by Manu. It provides a very just and equitable set of rules which cover the issues of succession to a Hindu male or a Hindu female who has died intestate, that is to say, without leaving behind a will. There are of course certain points where the pre-existing Hindu law has been codified without abrogation.

The Indian Succession Act is largely a reflection of the British law as was in vogue at the time.

The Muslim law of succession is derived from the Sharia. The primary source of the Muslim law of succession flows from the Holy Koran. Apart from those issues which are directly addressed in the Holy Book, you have the Ijmas, the Sunnas, and the Qiyas, from all of which rules pertaining to succession can be gleaned.

I shall now proceed to the basic rules of succession as set out in the Hindu Succession Act. The Act applies to Hindus (and this includes Buddhists, Jains and Sikhs as well). It includes also cults and sub-sects such as Arya Samaj, Ramakrishna Mission and the like. The Act deals with succession to a Hindu male separately and succession to Hindu females separately.

The coparcenary property of a Hindu male who dies after the commencement of the Act without leaving behind him any female heirs (or male heirs who claim through certain female relatives) will devolve upon the remaining male coparceners equally. This is something called survivorship. It is an exception to the general rule of succession.

The female heirs whose presence would result in survivorship not taking place are the widow, the mother, the daughter, the daughter of a predeceased son, the widow of a predeceased son, the daughter of a predeceased son of a predeceased son and the widow of a predeceased son of a predeceased son. The existence of certain specified male heirs who claim through such female heirs would also result in this rule of survivorship not applying.

The female heirs who have been listed above are known as `Class 1 female heirs'. There are certain male heirs who also fall into this category known as `Class 1' and they are the son, the son of a predeceased son, the son of a predeceased daughter, and the son of a predeceased son of a predeceased son.

Clubbed together, all these heirs are known as `Class 1 heirs'.

If one or more Class 1 heirs survive a Hindu male, such heir or heirs would succeed to the property, to the exclusion of all other relatives.

It is interesting to note that an en ventre sa mere (child in the womb) also has certain rights of succession which are recognized under the statute. The statute provides that if a person dies and an enceinte child would be his heir (had he been alive at the time of its birth), and if such a child is born alive, then, it would succeed to the property of the deceased person as though it had been alive at the time of death.


for more information:
TEAM Daniel & Boaz
Chennai Law Firm
Helpline:- 9840802218
email:- chennaipropertylawyers@yahoo.in

1 comment:

  1. Hello,

    If you are looking for tax lawyer in Chennai, Smurugappan.com is right place that offer advice and provide solutions related issues on service tax, customs, central excise by experience lawyer and help you to covering the emerging goods.

    Tax Lawyer Chennai

    ReplyDelete

A hindu girl who converts her religion can still claim share in father’s property

In a matter where a Hindu woman converted to Islam after marrying a Muslim man and renounced Hindu faith, does not disqualify her to inher...