Succession

Succession

Devolution of property after death of a person

When a person dies without making any arrangement, his property shall be devolved as per Law of Succession. There are three types of law of succession based on the religion.

Succession in Hindu

First, let us see the inheritance of properties among Hindus, Jains, Buddhists and Sikhs.

The law applicable to the above religions is Hindu Succession Act 1956, which lists out a class of persons or heirs and share of property that will be inherited by them. The word ‘heir’ means a person entitled to inherit a intestate property.

According to the law of succession, if a Hindu dies without making any Will regarding his property, his all heirs, male or female, will succeed with equal share.

A person is said ‘died intestate’ with regards to his properties of which he/ she has not made any arrangement for devolution after his death. That is to say he/ she has died without leaving any settlement or will.

Prior to 1956, Position of Succession

Hindus were governed by vedic laws or usage of any particular region and caste. As our nation is a large one and number of castes are also numerous, many rules of succession were in practice. Popular among them were Dayabhaga in Bengal, Mayukha in Sourashtra, Bombay, Konkan, Marumakka Thayam in Kerala, Mitakshara in other parts of India. 

The different schools of succession dealt the property in diverged manner because of their different origins of place and caste, which resulted in highly complex property laws.

Before 1956, a Hindu undivided family (HUF) consisted of both men and women. A woman in a HUF had a right to enjoy a property but the ownership, alienation rights vest with the men only. A woman cannot be the member of the co-parcenary family in Mitakshara law.

Though the HUF consisted of many members, the senior member of the family is the manager of the family who looked after all the family affairs. He is called Karta, his position in the family is some what like or similar to that of a trustee in a trust. In other words, a karta is a manager or a care taker of the HUF who is entitled to administer the family welfare, external relation, properties on behalf of other members of the family.

In mitakshara law, a joint family property devolves by survivorship within the coparcenary. This means that every birth and death of a male in the family shall decrease or increase the share of other male persons of the family.

Post 1956, Position of Succession

The Hindu Succession Act was enacted in the year 1956.

Women were given with absolute ownership over the properties instead of limited ownership.

However, gender discrimination continued as it followed the mitakshara system of coparcenary which constituted only male members which is apparent in section – 6 of the Act.

In 1985, the HSA was amended in Andhra Pradesh and is called the HS(AP) Amendment Act 1985 which brought a new scenario to the joint family system particularly in property succession by accepting woman as a member of coparcenary system.

In 1989, the states of Tamilnadu, Kerala and Maharashtra also amended the law which states that the rights of daughter in property or other are at par with that of son.

Thus this wiped out the discrimination, but in these said states only. It is to be noted that the said discrimination which violated the fundamental right of equality was prevailing in other states of the country.

Later in 2005, the discrimination was completely wiped out by giving daughters and sons equal right to property. According to this, the woman became the coparcener and would acquire, irrespective of marital status, by birth, rights to ancestral property just like a male coparcener. Even she can become a karta of the family.

Coparcenary property devolution

So far it has been discussed about the HUF, coparcenary, who are all its members. Now, we shall see the quantum of shares inherited by each of them in a coparcenary property.

A coparcenary property may be one or more of the following.

o   An ancestral property  or

o   Property acquired by HUF i.e. from the funds of the family or

o   A property bought by an individual member but later converted as common property.

All the coparceners, whether male or female, irrespective of marital status, have equal undivided share and interest in the estate of the coparcenary property.

If a Hindu person, male or female, dies intestate, his or her properties devolve on all the heirs of the deceased person. However, the quantum of share to each heir depends on whether the property is self acquired property or ancestral one. If it is a self acquired one, it shall devolve on all the direct heirs equally.

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