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This article is written by Meera Patel pursuing BA.LLB (Hons.) from Maharaja Sayajirao University, School of Law. This article highlights the inheritance laws of India and other legal aspects that are related to the inheritance laws for the children of divorced parents.

Introduction

The practice of inheritance revolves around the idea of transferring any property, debts, assets, rights, obligations, or titles to the legal heir of a person but this happens only after the death of the person. There are two ways to practice inheritance which include passing on the property through a ‘will’ or using the provisions under the prevalent succession laws of India. Although, all the succession laws might not be the same as they all differ among societies or their different religions. There is a vivid range of inheritance laws in India but there are a few aspects that one needs to keep in mind before acquiring the property from their predecessors such as: 

  • Nature of the property
  • Rights of the legal heir over the property
  • Number of legal heirs
  • Will of their predecessors, etc.

Laws that govern inheritance in India

The following are the laws that govern the inheritance laws in India. Technically, they are based on the type of religion and the type of succession. Being a secular country, India needs to recognize the various numbers of religions and respect their reasonable practices. The major running religions such as Hinduism, Islam, and Christianity have their statutory laws that oversee their family laws. Hence, the major family laws of India which include marriage, divorce, inheritance, and maintenance laws are governed by the personal laws of their respective religions. All and all, it is necessary to identify a legal heir for the same as it can avoid various fraudulent insurance claims and hand over the property rights to the ultimate legal heir.

Types of laws

The Hindu Succession Act, 1956/ 2005 

This Act applies to any Hindu individual but at the same time, Sikh, Jain, and Buddhist people also fall under the same category.

The Indian Succession Act, 1925

These laws apply to any individual who wants to transfer his/ her property to any individual regardless of their relationship by creating a ‘will’.

The Muslim Personal Law, (Shariat) application Act 1937

All the Muslim citizens of India abide by this Act except the citizens of Jammu and Kashmir. Two types of heirs are recognised under this Act, that are sharers and residuaries. Sharers hold the certain rights in the deceased person’s property whereas on the other hand, the residuaries are the type of heirs who get the leftover property after the sharers have claimed their shares.

The Christian Inheritance laws 

Christians don’t have a separate Act that deals with their inheritance issues. Similar to the Hindu citizens of India, the Christians work according to the Indian Succession Act, 1925 and are governed by it.

Types of properties

Self-acquired property

Any property that is obtained or earned by one on their own is known as self-acquired property.

Ancestral property or joint family property

Any property that has been acquired by someone’s father, grandfather, and so on and which is supposed to be passed onto the next coming generation if the same bloodline is known as the ancestral or the joint family property.

Separate property

Any property that has been acquired from a person who is not related to the person who is acquiring the property as a gift or by will. Though this property cannot be treated as an ancestral property. 

What are the rights of minors in their parents’ property

As per the Indian succession laws, a ‘son’ reserves a birthright to ask for his part in the property of his father and grandfather. The property that one acquires from their grandfather or great grandfathers is supposed to be their ancestral property, whereas the property they may or may not get from their father is known as their self acquired property.

Difference between self-acquired property and the father’s ancestral property:

Ancestral property

According to the Hindu Succession Act, 1956 and the case U.R Virupakshaiah vs Sarvamaa & Anr 17.12.2008, any property that a Hindu inherits from their father or forefathers is considered as their ancestral property. In Smt Dipo vs Wassan Singh and others, 5.05.1983, it was clearly stated that any person who inherits their ancestral property is bound to share the ancestral property with their successors even though the successors may not get a part of their father’s property. In easier words, any property acquired by a Hindu great grandfather can be passed up to the next three generations in equal divisions. The basic requirements needed for a property to be considered as ancestral property should be:

  • At least 4 generations old.
  • The share that every co-parent acquires automatically becomes their self acquired property.
  • The property can be open to co-parent only after the death of the owner of the very same property. 
  • The right to ask for a portion of the ancestral is the birthright of the successors.
  • Any property that is received or acquired from a person’s mother, grandmother, uncle, or even brother will not be considered as an ancestral property but would be a self-acquired property.
  • But if the self-acquired property is enjoyed by all and is voluntarily put with the ancestral property legally, that property will be considered as the ancestral property.

According to the rules stated in the Mitakshara school of law the child has the right to ask for his portion of the property in the father as well as grandfather’s property by birth. When we talk about the ancestral property, the heirs have a right to claim their share in the ancestral property but at the same time, when we talk about the father’s self-acquired property, the father is entitled to be the sole independent entity who possess the power over his property which he may or may not give it to someone else as a gift or by his will.

Self acquired property

According to the case C.N. Arunachala Mudaliar vs C.A Muruganatha Mudaliar and others 14.10.1953, any self-earned property, gifts from friends, and gifts of the nuptials are considered as self-acquired property. The heirs do not have the right to claim their father’s self-acquired property unless and otherwise mentioned in their will.  

According to the rules stated in the Mitakshara School of Law the child has the right to ask for his portion of the property in the father as well as grandfather’s property by birth. Although in the ancestral property, the successors have a right on the property and are equal owners of the property they are co-parenting with their predecessors whereas when it comes to the father’s self-acquired property, their rights are unequal as their father is entitled to be the sole independent entity who possess the power over his property which he may or may not give it to someone else as a gift or by his will.

If a person who owns a self-acquired property dies, then his son possesses the right to ask for a portion in that property. The only catch over there is that the heir will have to split this property with his living mother, (if) sister, (if) grandmother, and (if) brothers.

How to acquire an inheritance in India

As mentioned above, the basic rights of inheritance highlights the fact that any transferable property, title, debt, etc can be passed on to another person upon possessor’s death in two different ways:

By ‘will’

A will is a testament or a legal document that declares the details like the names of the person who is entitled to acquire, benefit, or manage the property of the possessor after his/ her death. All this is mentioned in the Indian Succession Act, 1925. They will consist of a certified seal from a competent court of law. It is evidence of the will’s executor’s authority over their property.

By the laws of succession when a person dies without creating a ‘will’ 

This can work when the possessor of the property dies without creating a will or without assigning the successors of his/ her property. That property will then be passed on to his legal heirs using the laws that are applicable under the intestate lined up the succession.

What is the duty of the parents towards their children after their divorce

A father is supposed to give maintenance to his biological child after his divorce whether he receives his child’s custody or not. But as per the Indian Succession Act, 1925, even with the maintenance that the minor receives, the child is not entitled to ask for his share in the self-acquired property of the father. It is up to the will of the father which may or may not decide to give his children a share of his self acquired property. Even though the child might not receive a share in his father’s self-acquired property, that person is legally bound to receive a share in his grandfather’s ancestral property.

Can a minor claim the inheritance

Under the Indian Succession Act, 1925, an heir or a legal heir is a person who is supposed to receive the property of their predecessor who died without creating a will. In other words, it is usually an individual who is bound to supersede any property either by a will or by law.

By law, a child of divorced parents can claim their inheritance only when there is an ancestral property. But on the other hand, any child or the successor has the right to claim his share in the ancestral property. Although they cannot claim their share in their father’s self-acquired property as that is up to the father if he wants to give his property to his successors or not. He may or may not pass it down to his successors or anyone for that matter via a will.

There are various out of the normal course situations where the laws need to be twisted to find out the correct owner of the property of a family. Such cases include:

Case of illegitimate children

Any child has the right to ask for his/her share in the father’s as well as grandfather’s property by birth. But on the other hand, an illegitimate child does not possess a right to their father’s property at all. Half-blood children do not have a right to ask for their share in either the ancestral or the self-acquired property. 

Other than that, any child who isn’t born technically but is alive in the mother’s womb has the right to the father’s property even if the father died without including that baby in his will. 

Case of adopted children

In cases where the child is adopted, it will not legally make that child a blood successor but the inheritance laws of an adopted child are similar to the inheritance laws of an adopted child as after adoption of the child, the child will lose his/ her rights in the biological family’s property but if the minor is given the rights of the property of their biological family, then the minor would continue to be the owner or maybe the co-parent of the biological family’s inheritance. 

                   

Inheritance laws for children born out of wedlock or live-in relationship

According to the landmark Supreme Court judgment in the case of Vidyadhari vs Sukhrana Bai in 2008, the Supreme Court gave out the permission that any child born during a live-in relationship would be able to acquire the right of inheritance and would be labeled as the legal heir too.

Also, in 2015, as per the Indra Sarma vs V.K.V Sarma case, the Supreme Court announced that any couple who have been practicing domestic partnerships such as practicing a live-in relationship for a considerably long period, then it would be considered as an act of marriage by the state. Even though the live-in relationship is a big-time stigma in India and no religion accepts this practice, India accepts it and it is legal to live in a live-in relationship in India. If not in the Indian Succession Act, the children born out of wedlock or from a live-in relationship, that child possesses the right to acquire a share in the father’s self-acquired property as per the Section 16 of the Hindu Marriage Act, 1955.

Inheritance laws for daughters 

Before 2005, the property rights of a daughter were almost non-existent. As only an unmarried daughter had the right to ask for her share in the property. Although, after 2005, in the amendment in the Indian Succession Act, a daughter will possess equal rights as well as duties that a son possesses. The daughter will have an equal share in the ancestral property and upon the discretion of the father, she can also get her share in the self-acquired property of her father.

Conclusion

Lastly, the general overview of the succession laws in India states that all children are entitled to get their shares in their father or forefather’s ancestral property but they cannot claim their shares in their father’s self-acquired property unless the father’s discretion says otherwise. Not just the legal blood heir but children of divorced parents, children born out of wedlock with a live-in partner, an illegitimate child, or even a daughter. 

References

 


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