Applicability of Hindu Succession Law when person dies unwilled

What if tomorrow morning, we wake up and don't find our self in this world! In an old Gujarati proverb it is well said that જરજમીનને જોરૂ ત્રણે કજાયાના છોરૂ.

When a person dies unwilled, then The Hindu Succession Act, 1956 applies for division of wealth. This law applies to Hindus, Jains, Buddhists and Sikhs. I think we might have never thought about it, but if we look to the history of princely states like Gaikwad or Jaipur, we will know how ugly it gets when matter goes to the court of law. Money is so powerful that relation doesn't take time to break. Family members can really fight over the issue of who gets how much out of the wealth and a lot of times unexpected things happen. Even people you never thought can suddenly appear claiming their share in the wealth.

Joint Ownership, Nomination, Will

How easily you get the financial asset depends on Joint Ownership, Nomination and Will. Let's understand it.

Joint Ownership: Investment can be made by an individual in his own name, single account or by two or more individuals jointly, called as joint account. There are different types of joint account relationships such as Joint, Either or Survivor, Anyone or Survivor, Former or Survivor, Latter or Survivor.

Nomination: Nomination is the process of appointing a person to take care of your assets in the event of your death. For all investments except shares, nomination does not provide ownership of your assets. The nominee will only be the custodian of the asset till it is given to its beneficiary., Though a nominee is an important person, he or she has no rights over the money or assets unless that is specified under the will or the nominee happens to inherit the money.

Will: A will is an official statement prepared by a person that describes how they want their assets to be divided among their heirs after their death. Preparing a clear will ensures that the heirs are left in no doubt about their inheritance. It is governed by Indian Succession Act and the capacity to dispose of is governed of by respective personal laws. In case of extreme exigency like person from airforce, etc. at war, privileged will, i.e. oral will also permissible. Will does not require stamp paper nor is registration required.  Will can be modified by a codicil or even cancelled. Two attesting witnesses are required. Will has to be proved before a Court and this is called probate. If there is no will then Letter of Succession has to be obtained. Through will, tax planning can be made for future. Nomination merely entitles a person to receive the property but does not extinguish the right of other heirs. In respect of self-acquired property, will can be made even in favor of persons other than heirs. A proper written will (and registered one) is the best way to make sure the wealth is passed on to different people as desired. But in reality people don't write will and keep thinking 'one day, I will surely write a will when  ...'

So now coming back to the point, if a will is written, then there is no confusion and the wealth is divided as per the WILL. However if a WILL is missing, then the wealth is divided as per Hindu succession Act 1956 laws for Hindu's , Jain's and Sikh's. We have separate law for Muslims and Christians, but for this article sake, let's just talk about Hindu succession Law applicable for Hindu population. The succession is governed by complex laws of inheritance and religion as well as customs. The laws also differ for men and women. Also note that in this article mainly we are talking about the succession laws related to what happened after death of a MALE individual.

Concept of Legal Heirs under Hindu Succession Law

Legal heirs are well defined in the Hindu Succession Law. All the relations are categorized into two classes called class I and class II. The first right on wealth is of Class I heirs. Only if there is no one available in Class I, then relations under Class II can claim their rights. If Class I & Class II both are missing, in then there is something called Agnates and Cognates, For now let's understand Class I & Class II heirs under Hindu Succession Law.

Class I relations

  • Son/Daughter
  • Widow
  • Mother
  • Son/Daughter of a pre-deceased son (per-deceased means 'already Dead')
  • Son/Daughter of a pre-deceased Daughter
  • Widow of a pre-deceased son
  • Son/Daughter of a pre-deceased son of a pre-deceased son (3 levels)
  • Widow of a pre-deceased son of a predeceased son

Class II relations

  • Father
  • Brother/Sister
  • Son's daughter's son/daughter,
  • Daughter's son's son/daughter
  • Daughter's daughter's son/daughter
  • Sibling son/daughter
  • Father's Parents
  • Brother's widow
  • Father's sibling
  • Mother's parents
  • Mother's sibling

If Class I & Class II is missing?

In the absence of heirs of Class I and Class II, the property is passed to the agnates and cognates of the deceased in succession. Now, one person is said to be the agnate, if he/she is related by blood or adoption wholly through the male's chain line. Similarly, one person is said to be the cognate of the other if the two of them are related by blood or adoption, but not totally through males, i.e. there has to be some intervention by a female ancestor somewhere. The first preference is given to Agnates and only if there is no Agnate, then the Cognates comes into picture. To understand Agnate/Cognate in plain plain Gujarati, Its means 'Bahu Door na Sambandhi', Agnates are from the chain of Male line and Cognates does not compulsory from the chain of males in the family.

Note that if there are more than one Widow's , then they get one share only and then divide it between themselves and a person immediate family will also be considered as one unit only.

Some Important Rules and Points

A child in womb is treated as a separate child as if he/she was out in the world, He/she gets separate share in the property.

No succession rights if the widow has remarried on the date of succession. If a person has killed the person from whom he was supposed to acquire the wealth and has been declared as a murderer by law, then he loses his right of acquiring assets. 2014 How Hindu Succession Law applies if written WILL is missing?

If there is no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall go to the Government.

For Muslims, the succession laws are defined under The Shariat Act. Under that 50% of the property goes to the Widow irrespective of the number of other legal heirs (remember in case of Hindu Succession Law its equal share between Widow and children) and rest is shared in equal parts between children.

Hindu Succession Law in case of a Female death

Till now we saw all the rules which are applicable if a person in question was a dead male, but in case of a female some points are a little different.  The property of a female Hindu dying without WILL shall be distributed according to the rules set out as following -

1. Firstly, upon the sons and daughters (including the children of any pre-deceased son or Daughter) and the husband;
2. Secondly, upon the heirs of the husband;
3. Thirdly, upon the mother and father;
4. Fourthly, upon the heirs of the father; and
5. Lastly, upon the heirs of the mother.

Important Points in case of Women Property

If the women has acquired any property from his Father or Mother, in that case the first right will be of the heirs of her father and not husband, in case of absence of his sons or daughters. If the women has acquired any property from her Husband, in that case the first right will be of the heirs of her husband, in case of absence of his sons or daughters.

Conclusion

In case a will is missing and the legal heirs get into fight over the wealth, things can get ugly and the wealth might to someone which you might not have wanted or imagined. Hence writing a WILL should be on a high priority list. This article just gives very basic rules under Hindu Succession Law, in reality things can get more complicated and it's always advisable to hire a good lawyer in these cases. This article is just for information and awareness purpose. Don't take it as the complete guide.

The author can also be reached at bmmehta89@gmail.com

 

Guest 
on 02 January 2018
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