Claiming Inheritance in India – Applicable Laws and Processes

Claiming Inheritance in India - Law and Processes

Practicing any religion is a fundamental right in the constitution. However, there is no uniform code or specific law that governs the idea of inheritance of property in the nation. The general laws relating to inheritance can be directed to The Indian Succession Act, 1925, applicable to all Indian citizens, the exceptions being Hindu, Muslims, Jains, Sikhs and Buddhists. It is the Hindu Succession Act, 1956 that governs non-testamentary or intestate inheritance for Hindus, Jains, Sikhs and Buddhists; For Muslims, for non-testamentary succession The Muslim Personal Law (Shariat) Application Act, 1937 is applied, but where a person dies testate, it is also governed by The Indian Succession Act. Parsis and Christians also follow the general act and inter-faith marriages follow the Special Marriage Act, 1954. In case of a foreign citizen who inherits property from an Indian, the respective law of the latter’s region will apply in that case.

It is important to follow due procedure while claiming one’s inheritance in India, and a few important things need to be kept in mind, such as:

  • Before making any claim to the property, all debts pertaining to the said property need to be cleared.
  • If there is ambiguity in the Will, such as mentioning of excess property etc, legal advice must be sought immediately.
  • The first legal step should be to get hold of the testator’s will, which can be done by applying with the deceased’s death certificate to the District Registrar.
  • Once the legal ownership of an heir for a property is confirmed, it is advised to apply for mutation to the local municipal authority, which makes the ownership claims stronger.
  • A no-objection certificate needs to be acquired in case there are multiple heirs.
  • A will may also be challenged on the grounds that a person has been left out of the will due to whatever reason, and so the words of the will are not absolute in law.

A Hindu male dying intestate would cause his property to be divided equally amongst the Class 1 heirs which include his sons, daughters, widow, mother and specified heirs of predeceased sons or daughters. Even under the Indian Succession Act, if a person dies intestate and has only one surviving child or more children, the all the property would belong to the one surviving child, or will be divided equally amongst all the children. There is no concept of ancestral rights in Islamic Law. It recognizes that even though a person has left behind a will (unless it is ratified by all the heirs) it will be valid only to the extent of 1/3rd of the value of the property in question.

NRI’s may also inherit any property in India, and need to get a succession certificate made from the court in case there is no will present which would require documents such as death certificate of deceased etc.

The Law of Inheritance – what you need to know

The Law of Inheritance

What are the laws that apply to the inheritance of a Hindu, a Parsi, a Muslim, a Christian or Jew?

In cases where the Will document is present and states about the inheritance details clearly, there is no ambiguity. The Law of Inheritance becomes a major point of reference in situations when there is no Will. Rules of succession that will be implemented in the absence of the Will are:

  • Hindus, Jains, Sikhs, and Buddhists – Hindu Succession Act, 1956.
  • Parsis – Indian Succession Act, 1925 specifically under section 50 to 56 of the Act.
  • Muslims – The Muslim Personal Law (Shariat) Application Act, 1937. Muslim law says that an individual might leave a Will; however, a Will, unless it has been ratified by all the heirs of the deceased is valid only for 1/3rd of the deceased’s property. As far as this validity is concerned, the Indian Will laws will apply.
  • Christians or Jews – Indian Succession Act, 1925 specifically under section 31 to 49 of the Act.

For any just division of property and especially in the absence of a Will, the law of inheritance plays a crucial role since it becomes the base referral point for deciding about the way the property of a deceased will be inherited. In India there are laws for Hindus, Muslims, Christians and Parsis, although a general guideline also exists. There are guidelines for inherited versus self acquired property too. Moreover, post 2005, there has been a change in the way women are viewed from the point of view of inheritance.

What are the laws that apply to the inheritance of heirs from an inter-faith marriage?
Laws applicable in the absence of Will are – Special Marriage Act, 1954.

What rights do women have in the case of inheritance?

  • Initially, the law gave preference to men in the event of the share of property inheritance and women were refused of their share.
  • But after the amendment made in 2005, every daughter whether married or unmarried now is considered a part of father’s Hindu Undivided Family (HUF) and can also be appointed as ‘karta’ (manager) of the family.
  • She now has equal rights, duties, liabilities, and disabilities that were limited to men earlier.
  • The benefits of this change can only be availed if her father passed away after September 9, 2005, i.e. the daughter cannot ask for her share if the person died before 2005.
  • If a woman is a widow, she can still claim a share in the property even if she has remarried.

Which properties can be inherited by the heirs?

The legal heir can inherit any property. Whether it is Self-acquired property or share in the ancestral property of the family an heir is entitled to inherit them.

Can someone be disqualified from inheriting the property?

An individual can be disqualified from inheriting the property if he/she has converted to another religion unless they convert back to Hinduism. Even if a person has murdered or helped to kill someone he will be disqualified from any inheritance.

What about children’s rights as per the law of inheritance?

The fetus that is still in the womb will be eligible to inherit a share only after it is born. Such a child will be treated as if it had been born before the relative leaving behind the property had died. Illegitimate children can only inherit self-acquired property and will have no share in the ancestral property left behind.

Is it vital to know whether a property is in the form of self-acquired or ancestral inheritance?

The laws of inheritance state that property has to be treated differently depending on whether it is self-acquired or ancestral. This helps in planning how a particular property is to be inherited amongst the heirs. On the other hand, as a legal heir, this would also allow you to identify your rightful share in the family estate.

Who is a Class I heir?

The following would be considered Class I heirs as per the law of inheritance:

  • Son, daughter, widow, mother, widow/son/daughter/ of a predeceased son, son/daughter of a predeceased daughter, widow/son or daughter of a predeceased son of a predeceased son, son or daughter of a predeceased son/daughter of a predeceased daughter or son

Who is included in Class II heir?

The following are included in Class II heirs:

  • Father
  • Son’s daughter’s son/daughter; Brother; Sister
  • Daughter’s son’s son’s/daughter; Daughter’s daughter’s son/daughter
  • Brother’s son; Sister’s son; Brother’s daughter; Sister’s Daughter
  • Father’s Father; Father’s mother
  • Father’s widow; Brother’s widow
  • Father’s brother; Father’s sister
  • Mother’s Father; Mother’s mother
  • Mother’s brother; Mother’s sister

Many of the cases that we get are related to intestate situations where people are not clear about their inheritance or others’ for that matter. We thought it was important to start educating people about their basic rights as per the law of inheritance in India.