Author Javed Razack, Advocate
The general law relating to the inheritance and succession can easily be referred to The Indian Succession Act, 1925. Under this Act every Indian is entitled to equal shares on inheriting the property on the death of a person. The exceptions are Hindus, Sikhs, Jains, Buddhists and Muslims as they are governed under separate laws of succession. As for the persons of different faiths than Hinduism and Mohammedan, the Indian Succession Act, 1925 applies.
We can easily segregate the laws of non-testamentary or intestate succession and inheritance as would be applicable to Hindus, Sikhs, Jains and Buddhist and with Parsis, Christians and Jews with that of Muslims and with persons of inter faith marriages.
Laws of succession applicable to Hindus, Sikhs, Jains and Buddhist; for the non-testamentary or intestate succession/inheritance, the governing law is the Hindu Succession Act, 1956.
Laws of succession applicable to Parsis; for the intestate succession the governing law is the Indian Succession Act, 1925 specifically under section 50 to 56 of the Indian Succession Act, 1925.
Laws of succession applicable to Christians and Jews; for the intestate the governing law is the Indian Succession Act, 1925 specifically under section 31 to 49 of the Act.
Laws of succession governing Muslims; for non-testamentary succession the The Muslim Personal Law (Shariat) Application Act, 1937 is applicable and where a muslim has died testate, the issue has to be governed under the Indian Succession Act, 1925 where a Will relates to immovable property situate within the State of West Bengal, and that of Madras and Mumbai Jurisdiction.
Laws of succession in case of inter faith marriages, under Special Marriage Act, 1954.
Under Hindu Succession Act, 1956, the properties of a Hindu male dying intestate devolves, in the first instance, equally on his sons, daughters, widow and mother and include the specified heirs of predeceased sons or daughters. The widow of the deceased is entitled to inherit equally with sons and daughters. The provisions of section 30 of the Act raise issues which are questionable in nature whereby the deceased husband, if he so desires, may write a Will and exclude his wife. The Will may contain bequeath of all his properties and no means of support to the widow.
If there be a meticulous reasoning, the rights of the Women and Daughters under the Hindu Succession Act can be resolved; the Gender inequalities in succession law proliferate extensively. Another aspect which is equally complicated is The Streedhan — Streedhan is the property held by a woman in India and treating the Streedhan on the death of the husband is also to be redressed by making suitable changes by the Parliament and address these and many other issues in the biased inheritance law under the Hindu Succession.
The law applicable to India can be said to be unlike for the State of Maharastra where the women and more particularly the daughters have dual advantage. A daughter is entitled to a share in the father’s Hindu undivided family, generally regarded as (HUF) as well as a share in the husband’s HUF. This again is meager and notional shares which at times take unending time in the legal foray in situations where the male heirs do not approach the court for the division of the property of the deceased.
Under the Mitakshara teachings, the joint family property devolves by survivorship and when a male Hindu dies after the commencement of this Act having at the time of his death an interest in a Mitakshara coparcenery property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenery and not in accordance with this Act. The concept however is viewed differently when the Mitakshara coparcener dies leaving behind a female relative or male relative claiming through Class I, this undivided interest will not devolve by survivorship but by succession as provided under the Hindu Succession Act, 1956. Class I heirs are Son, Daughter, Widow, Mother, Son of a predeceased son, Daughter of predeceased son, Widow of predeceased son, Son of a predeceased daughter, Daughter of predeceased daughter, Son of predeceased so of predeceased son, Daughter of predeceased son of a predeceased son, Widow of predeceased son of a predeceased son.
The Indian Succession Act, 1925, states that everyone is entitled to equal inheritance, barring exceptions to Hindus, Sikhs, Jains, Buddhists and Muslims. Under the act, the daughter of a person dying intestate would be entitled only to one-fourth of the son’s share, or Rs. 5,000/-, whichever is lesser, this amount is also termed as Streedhan and this entitlement excludes the women from any further right in seeking a proper division of the properties of the deceased. The bias and gender deprecation is the only factor that the Indian women and daughters are isolated and remain dependent on the male heirs for their share and right in the seeking distribution of the property and giving rise to differences in the families and long legal battles.
The concept of Mitakshara coparcenary, in a joint family is to be analysed in the light of the current status of a women who is regarded equal to a man. This is unreal and the logistics with regard to the shares in the property under the Hindu Succession Act, 1956 speaks all. A daughter will get a small share of property compared to the son. The father’s property is equally shared between brother and sister. In addition, the brother is entitled to a share in the coparcenary from which the sister is excluded. A good example to explain this anomaly is to the right of a daughter in the residence is only confined to the possession and not of ownership in the family owned house.
In order to set at rest the long drawn legal battles and animosity among the heirs of the deceased, the law of succession should be emphatically amended to provide and give equal inheritance to all, irrespective of the gender discrimination and bias. Special emphasis to property distribution among Hindus, the succession right by birth should be abolished and the Mitakshara coparcenary should be converted into Dayabhaga, which means equal distribution of not only separate or self acquired properties of the diseased male, but also of undivided interests in coparcenary property. It should also consider a daughter of a coparcener in a HUF under Mitakshara law to be coparcener by birth as of a son on the right of claim in the property in equal shares in the coparcenary property.
I have learnt that there have been many representations to the Government on this issue of equal rights to women under the Hindu Succession Act, 1956 have been made and soon a legislation to amend the Hindu Succession Act will be made which will provide for giving daughters and sons equal rights in the property. The Legislation will also consider the marital status of the woman and irrespective of her status; the women shall have full right to inherit the ancestral property like a son of the family. On the anvil of the legislation making its mark as a statue, the Hindu Succession Act, 1956 may have to be completely abolished with regard to the rights to a daughter in the Hindu Mitakshara Coparcenary Property as to that of the sons. The objective of the amendment should be to curb any kind of dispute with regard to the shares in the property and also in view of the amendment to the law in some States in India. It should however be clear that during the lifetime of the parents the properties acquired and divided either by gifts or by virtue of a Will, the equal and determinate shares, if any, would become ineffective. Therefore, the changes in the law and amendments should also consider this aspect and lay a comprehensive and good law of inheritance and succession without being partial and bias to the gender.
To answer these issues, some other States have amended the law. The Hindu Succession [Andhra Pradesh] Amendment Act, 1985 is a classic example on achieving this feat of including daughter as equally entitled to the share in the property as a son. This remarkable development on the rights of a daughter equal to that of a son in all circumstances has gone without a challenge and this has given a reason to correct the Mitakshara system as a violation of the fundamental right of equality under the Constitution of India. Some more States like Tamil Nadu, Maharashtra and Kerala have also amended the law by including women as members of the coparcenary, but to the dismay that the applicability of the amendment is confined to the State in which the law is amended and not the whole country.
Now coming to the Muslims, the law governing Muslims and Muslim women in India is under The Muslim Personal Law (Shariat) Application Act, 1937. The Shariat is regarded as the Custom or Usage for the purposes of division of all properties, except agricultural land. In the earlier times Muslims were governed by the local customs, laws and practices where they were domiciled which ran contrary to the Shariat in following the local customs and laws. The customary laws were highly discriminatory and it excluded daughters and others like widow were in the bottom line in the succession order, this practice runs contrary to the Shariat where a daughter and widow cannot be excluded by any other heir and also have the protection from the testamentary restrictions. The shares of the daughters and widows are lower than a man.