Author - Associate Nupur Mehrotra
The term ‘succession’ refers to the transfer of property of the deceased person to the legal heir. Succession is basically of two types first, transfer of property according to the will of the dead person and secondly, transferring the property in the absence of the will because of the death. Succession law is different for communities for example, the Hindu Succession Act for Hindus and Shariat Laws for Muslims, etc. Indian Succession Act, 1925 governs all the religion except Muslims.
India Succession Act came into existence on 30th September 1925 and has combined all the laws related to succession into one law. The Act has 11 parts, 391 sections, and 7 schedules. Indian succession law was introduced in India only after the British faced problem for administering the laws on succession. The British, when started to rule India, found out that there were small communities like Jews, Parsi, etc other than the two major religion that is Hindu and Muslim and had different laws for succession, so British rulers introduced one common law for those community to adhere to.
If a person dies without making a valid will then the Hindu, Jain, Sikh, and Buddhist will be guided according to the Hindu Succession Act, 1956, Christian, Parsi and Jew will be guided by the Indian Succession Act, 1925 and the Muslims will be guided by the Muslim law. In case the person has died after making a valid will then the Hindu, Jain, Sikh, Buddhist , Christian, Parsi and Jew will be guided by the Indian Succession Act, 1925 and the Muslims will be guided by the Muslim law.
According to Hindu Succession Act, 1956, if a Hindu male dies without any legally valid will his property will be given to his son, daughter, wife and mother-son/daughter of a pre-deceased son, son/daughter of a pre-deceased daughter, widow of a pre-deceased Son, son/daughter of a pre-deceased son of a pre-deceased son (3 levels), widow of a pre-deceased son equally and if these people are not present the property will be passed on to the father, brother, sister, son’s daughter’s daughter son’s daughter’s son, and the property will be given accordingly if the person dies after writing a valid will. Also, Hindu law does not give any difference between the adopted child or own child. If any person has converted to another religion he/ she cannot be barred from getting the property.
Also, after the amendment of the Hindu Succession Act, 2005 amendment in the case of Prakash v. Phullavati gave the right to the daughter to have their share in the ancestors property. Justice Ashok Bhushan stated ‘a daughter shall by birth become a coparcener in her own right in the same manner as son’. Further, it stated the Section 6 amendment as ‘‘stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained, and as is well recognized’’.