To achieve equal inheritance for all, the laws have been amended. In regard to succession to property among Hindus, the right by birth has been abolished and the Mitakshara School co-parcenary of Hindu Law has been converted into Dayabhaga School that means equal distribution of not only separate or self acquired properties of the diseased male, but also of undivided interests in coparcenary property. Daughter of a coparcener in a Hindu joint family governed by Mitakshara Law now is coparcener by birth in her own right in the same manner as a son; she has right of claim by survivorship and has same liabilities and disabilities as a son; now co-parcenary property to be divided and allotted in equal share. The theoretical reforms so far have not been adequate to give all Indian women a right to property on the same footing and terms as men. It varies with region and religion. Even where law has given a right, conventions and practices do not recognize them. Women themselves relinquish their rights. Women, as daughters, wives, daughters-in-law, mothers or sisters tend to lose out and often suffer deprivation. This further gets accentuated when they lose the security of the family, as single women, divorced/separated or widowed. Social awareness of the rights under law, attitudes to adhere to it and a mindset to change law and practice to ensure social justice is therefore urgent.
Therefore a social reform movement is necessary for such awareness and change of mindset. Since ‘marriage’ is the most traditional institution of initiating a family and preserving it, let registration of marriages be made compulsory It is suggested that to achieve more power for women we must Increase awareness of laws through education institutions, general awareness and legal awareness programmes; sensitize Judiciary, administrators and legislators about implementation of laws in letter and spirit; consider long pending recommendations for amendments of legal provisions on inheritance and strengthen the administrative machinery for the purpose.
The personal law to which the deceased person subscribed applies to matters of inheritance in India. This law may be the textual law of the deceased’s religion, or the codified law of the nation to which the deceased belonged to at the time of death.
If a foreign citizen inherits from a deceased Indian citizen, then the law prescribed for the appropriate Indian religious group applies.
If the deceased was a foreign citizen, then the personal law of his religion or nationality applies. In the instance where the law of the nation to which the deceased foreigner belonged to at the time of death refers the inheritance issues back to India (i.e. place where his/her property is situated), then the applicable law which governs the inheritance of the deceased in India takes precedence.
When problems can arise?
With regard to the complexity and diversity of the applicable laws in India, questions of inheritance by foreign nationals will arise mainly from the following situations:
* A deceased citizen of India having successors who are foreign citizens;
* A non resident Indian, or a person of Indian origin with immovable property in India, who dies intestate, leaving successors who are foreign citizens;
* A foreign citizen owning property in a permissible area of India, or a foreign citizen owning property whilst residing in India, who dies intestate, with successors who are foreign citizens.
* Foreign successors claiming their inheritance on the death of a foreign citizen who was an owner of inherited property in India.
The civil court of the district deals with all matters relating to inheritance.
Inheritance issues are dealt with by the principal civil court of original jurisdiction (district judge’s court) where the property lies, or where the deceased used to live in India before death, or before departing the country.
If the property lies in the jurisdiction of more than one civil court, the High Court (HC) may transfer the matter to one civil court. From there, up to two appeals may be referred to the HC. In special circumstance a Special Leave Petition (SLP) may be allowed for the matter to be considered in the Hon’ble Supreme Court of India, the Apex Court, but only after the second appeal is exhausted, and if special questions of law are involved.
The local laws of the State in which the property is situated determines the stamp duty and court fees.
Disputes relating to succession and inheritance may take as much time as any other civil suit, which varies on a case to case basis, depending on the complexities of the claims, the nature of interpretation of the law, and the number of appeals. Original court requires 4 to 7 years and each appeal may take 2 to 3 years. In exceptional cases, inheritance proceedings in India may not be concluded for two decades.
The rules on testamentary inheritance are stipulated by law.
Rules regarding the administration of testamentary succession are stipulated in The Indian Succession Act. Procedures are laid down for administering the testamentary succession of all religious groups, except Muslims. Muslims can make a testamentary succession under their own religious law; however, a Muslim cannot transfer more than 1/3. of their property by testamentary succession.
Rules of distribution
The Succession Act contemplates only those relationships that arise from a lawful marriage. Where an intestate has left a widow and if he has left lineal descendants, that is, children and children’s children, 1/3 of his property shall belong to the widow, and the remaining 2/3 shall go to the lineal descendants. If the intestate has no lineal descendants, but has left persons who are of kindred to him, ½ of his property shall belong to the widow and the other ½ shall go to those who are of kindred to him. If the intestate has left none who are of kindred to him, the whole of the property shall belong to the widow.
The phrase “lineal descendant” means a descendant born out of a lawful marriage. Thus a daughter’s illegitimate son or a son’s illegitimate daughter or other illegitimate issue cannot be said to be a lineal descendant. An illegitimate child is not a child within the meaning of the Act. Therefore such a child has no share in the property of the parents. But in Jane Antony v Siyath 2008 (4) KLT 1002 Kerala High Court recognised the right of illegitimate child under Indian Succession Act upholding the lower court verdict.
The term “kindred” means relations by blood through a lawful marriage. Therefore, relations by illegitimate birth are not recognised as kindred under the Act. Kindred does not include relation by affinity such as mother-in-law or step mother or stepfather. Thus, a stepfather or stepmother has no legal right of succession to the property of his or her stepchildren. The position is the same in the case of a father-in-law as well.
A husband has no right to inherit the property of a divorced wife. In case of a judicial separation under the Indian Divorce Act, 1869, the property of the wife would devolve upon her legal heirs as if her husband were dead.
A daughter-in-law has no right of succession to the estate of her intestate father-in-law.
Where the intestate has left a widow, and where there are no lineal descendants, the widow’s share is one half of the estate of the intestate, as is provided under section 33(b).
Where an intestate has left no child, but only a grandchild or grandchildren and no other remote descendant, the property shall belong to the grandchild if only one grandchild is left by the intestate and if there are grandchildren, the property shall belong to the surviving grandchildren in equal shares. It means that in a situation contemplated under this section, the distribution is per capita and not stirpital.
The father of an intestate succeeds to the property to the exclusion of the mother. This is based on the English Common Law principle that he would have taken her share if arising jure mariti. When a Hindu convert to Christianity dies intestate, it is the father, in the given situation, who succeeds to the property. The religious faith of the father is immaterial for the purposes of succession. What is material is that the deceased should have belonged to the Christian religion on the date of his death. The religion of the heirs is immaterial. But the English view that a man is not the father of the illegitimate children applies also under the Indian Succession Act.
As there is no statutory recognition for adoption by Christians in India, an adopted child cannot claim the right to succession unless a custom of adoption can be proved. It has been held that a party can prove that there is custom of adoption among Christians in Punjab so as to change the rule of succession as laid down in this Act. Some Christians in Mysore and Travancore areas also claim the right of adoption. But they are yet to be judicially recognised.
Any money or other property given by an intestate to a child, for his/her advancement in life, would not be taken into consideration at the time of distribution of the property of the intestate. Therefore, the practice of Christian daughters executing release deeds at the time of marriage so as to get them excluded from succession may not achieve the desired result, because only if there is a pre-existing right it can be conveyed. In the case of a Christian daughter, she has no pre-existing right in the family property and her rights arise when her parents die intestate. Therefore a release deed executed after the date of intestacy alone would be valid.
Apart from immovable property, the properties of the intestate that are to be distributed among the legal heirs include the following-
Fixed Deposits in a Bank
When a person dies intestate after making a fixed deposit in a bank, the nomination made in favour of one will not dis-entitle the legal heirs to claim a distributive share.
Joint account in a bank
Unless a contrary intention is proved, when an amount is deposited in a joint account on the terms that it was to be payable to either of the survivor, it must be included in the partible property among the legal heirs, for the purposes of intestate succession.
Succession to the service benefits of a Government servant who dies intestate, cannot be affected by nomination. A nominee is only a trustee for legal heirs and the right of the legal heirs cannot be taken away by nomination.
A nominee’s interest in the amount received under a policy of insurance, when the assured dies intestate, is subject to the claims of legal heirs of the assured, under the law of succession.
Gifts can be made during the lifetime of the property owner.
There is little restriction on the gifts of any property during the lifetime of the owner. Owners have full power of disposing of their own property in India by inter vivos. Such gifts however may be challenged in the court of law on certain grounds such as the disqualification of the donor due to mental instability. The decision of the courts on this issue would be on a case to case basis.
Acquisition and transfer of property in India is subject to restrictions.
A foreigner who resides outside India, wanting to acquire property in the permitted area (like Goa Sea Resort, which is specially notified for this purpose) requires prior approval of the Reserve Bank of India (RBI). Foreigners of non-Indian origin who have acquired immovable property in India with the specific approval of the RBI cannot transfer such property without prior permission of the RBI.
No person resident outside India can transfer any immovable property located in India, except when specifically permitted under the regulations. RBI in special circumstances may allow such transfer.
No agricultural land can be acquired by a foreign national or any person resident outside India
Each State Government may impose additional restrictions. For example, a person can not acquire land in J&K, North Eastern States, unless certain conditions are satisfied under the State laws.