By Lucy Rana and Devika Mehra
The Law of Succession in India (as codified under various Acts) defines the order in which the legal heirs of any deceased person would be entitled to the property/ estate/ assets of the said deceased. After the death of a person, the question of rightful entitlement to/inheritance of their estate assumes utmost importance so as to avoid disputes and differences in a family.
Although community rules and societal norms governing inheritance had been in place in India since ancient times, primarily informed by religious and social customs, codified legislation in this area was passed only in the 20th century. For Hindus, succession is governed by the Hindu Succession Act, 1956, enacted almost nine years after India obtained independence in 1947.
Hindu Law is divided into two (2) schools, each subscribing to their own culturally influenced laws of inheritance: namely, the Mitakshara and Dayabhaga schools. The fundamental difference between the laws of inheritance as stipulated under these schools is the principle based on which right to inheritance shall be determined.
Laws of Succession with respect to Hindus are defined under the Hindu Succession Act, 1956 and the Indian Succession Act, 1925, and can be broadly classified into two (2) circumstantial categories:
- Where the deceased has left behind a valid, enforceable Will – Testamentary Succession; and
- Where a person has expired without leaving behind any such Will – Intestate Succession.
A Will is a document through which an individual may bequeath their property to any other individual or group/s of individuals, of their own free will, without any coercion. Further, it is not necessary that the beneficiaries of a deceased’s Will need be related to the testator in any manner.1 The absence of any element of coercion and/or undue influence is necessary to eliminate the scope for a deceased’s property ending up in the wrong hands.2 This is possible only when a due process of law is followed to execute the Will.
It is important to keep in mind that obtaining Probate in respect of a Will is not mandatory in India, except in the jurisdictions of the State of West Bengal, and the metropolitan areas of the cities of Chennai and Mumbai, even when the Will does not bequeath immovable property. However, a Probate is optional in respect of any other Will, and may in fact even be advisable in cases where there is a likelihood of the Will being challenged in future.3
A Testator needs to sign his Will in the presence of two Witnesses, who also sign the said Will testifying that the signatures of the Testator are true and correct.4 Even though it is not mandatory to register a Will, a registered Will will be favoured over an unregistered Will before a court of law.
Where the deceased person has left no Will or the testator has not bequeathed their whole property / estate through the Will, or where the property involved is a joint family property / ancestral property, involving other co-owners, the laws of Intestate Succession come into play, to determine the shares of the rightful legal heirs of the deceased. Under these laws, property is automatically deemed to devolve upon the immediate surviving family of the testator in order of the stipulated ‘Classes’ as given under the Schedule to the Hindu Succession Act.
The order of succession under the Hindu Succession Act, 1956 is governed by Section 9 of the Act which delineates the succession of the property of the deceased amongst the Class I and Class II heirs, agnates and cognates of the deceased, depending on who survives the deceased.
An individual may obtain a Legal Heir Certificate or a Surviving Member Certificate from the Court for the purpose of establishing that they are a legitimate heir to the deceased and have a rightful claim upon her/his property.
Where there is no Will, and a person dies intestate, the heirs of the deceased may apply for a Succession Certificate in respect of moveable property from the Court for transferring the same to the beneficiaries.5 A Succession Certificate is used for transfer or possession of moveable property, or for paying debts or security on behalf of a deceased person, or for collecting debts or security on behalf of a deceased. Such a certificate can be used for the purpose of transferring liabilities such as: electricity connection, telephone connection/Patta transfer, house tax, bank account, filing of IT returns, etc.
Even though the law of succession is quite clear in case of testamentary and intestate succession, disputes may still occur out of disharmony amongst the heirs of the deceased. Disputes may occur out of issues such as:
- Challenge to the Will alleging the signatures are incorrect, or that the instrument was signed under coercion or undue influence; or that there is a superseding Will;
- One heir being against the equal distribution of property amongst heirs of the same Class due to a pre-existing dispute;
- One heir seeking more share or complete share in the property of the deceased on account of either being current residents of the property, or claiming to have been solely responsible for well-being of the deceased during their lifetime;
- One or more heirs malafidely taking over the property / assets of the deceased without consent of other entitled heirs.
Where one or more of the above-mentioned situations accrue, the aggrieved persons/heirs may often be left with no option but to approach the Court for intervention, and the onus to prove specific allegations as well as claims of being legitimate heirs falls upon the petitioner/ the one who is making the respective allegations before the Court.
1 Section 2(h) of The Indian Succession Act,1925
2 Section 61 of the Indian Succession Act,1925
4 Section 63 of the Indian Succession Act,1925
5 Section 372 of the Indian Succession Act,1925