Posted On: April 2, 2021


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Posted by Ms. Harinder Narvan, Ms. Aparna Jain, Ms. Aashrika Ahuja and Mr. Karanveer SinghSince time immemorial, civil society has recognised rights of an individual to acquire, hold and dispose of property. Property can be both immovable as well as movable. This right also includes liberty granted to an individual to dispose of his/her property in any manner after his/her demise. In case of immovable property, this right can be exercised during lifetime of a person by virtue of making a “Will” and succession in this manner is referred to as Testamentary Succession. Inheritance of immovable property without a will is referred to as Intestate Succession. By and large, laws relating to succession of property essentially deal with determination of right as well as title of property of a deceased individual. This broadly includes how and in what manner and order, legal heirs will succeed to the property/estate of the deceased person. For purpose of determining applicability of laws of succession, domicile play a very important role. In case of immovable property situated in India, the law of succession prevailing in India will determine successors and legal heirs. When it comes to movable property, it is the law governing country of domicile of deceased is what is relevant in determining successors.
Procedure governing succession by will i.e. making, execution and administration of wills is enshrined under Indian Succession Act, 1925. Will is defined as a document comprising legal declaration of intention of testator with respect to devolution of his property after his/her death. Thus, a will is made during a lifetime of a person and it comes into effect after death. Will can be made by any person capable of entering into an Agreement. Minors or a person under effect of intoxication or any other influence such as coercion, fraud, bout of illness which takes away his/her free will or ability to understand effect of his action, cannot make Will, while such state continues. Though , there is no prescribed format or technical requirement for making a will but it is imperative that will is made in a written manner so that the intention of the Testator becomes clear. Since the object is to give effect to desire of the Testator, small errors in name or details of property could be ignored and whole document has to be considered in order to understand the true intention. It should be signed by the Testator and two witnesses. Those who cannot sign (illiterate or due to illness) can put their thumb impression. Signature should be at the bottom / end to show it is put to give effect to whatever appears above / before that signature. Witnesses should be independent persons and not beneficiaries under the Will. Wills need not be made on stamp paper or be registered. Registration is optional.
Validity of will and proof of will is established through the process of Probate where a suitable petition can be filed to apprise the court with crucial details such as executor named in will, date and time of testator’s death, will fulfilling all formal and essential legal requirements, amount of assets etc. After the petition for probate is filed in the court, the court issues notice to legal heirs of the deceased. This notice gives the legal heirs of the deceased an opportunity to file their objections and make claims on the property of the deceased. If no objections are filed, probate is granted right away. The Court then directs to issue general public notice in the newspaper as a declaration.
In cases where testator fails to appoint an executor under a Will or where the executor appointed under a Will refuses to act or where he/she has died before or after proving the Will but before administration of the estate, a letter of administration can be obtained from the court of competent jurisdiction . A petition for letters of administration shall contain an application stating time and place of the deceased’s death, family or other relatives of the deceased and their respective place of residence, right in which the petitioner claims and the amount of assets which are likely to come to the petitioner. The Court, on being satisfied with the petition filed, passes an order for grant of letters of administration in favour of the applicant.
Laws relating to Intestate Succession for Hindus including Buddhist, Jains, Sikhs are codified under Hindu Succession Act,1956. For Hindu Males, there are four classes of Legal heirs. The property will pass on exclusively to legal heirs specified in Class 1 if there is anyone available. Class 1 relatives include wife, son/daughter, mother, son/daughter of predeceased son/ daughter, widow of the predeceased son and few other such relatives. The property would be distributed in equal share to widow, mother and each of children. In case, any of the child has predeceased, his spouse and children will collectively get his / her share. The property will subsequently pass on to Class 2 heirs in case none available in class 1 so on and so forth to class 3 and class 4 including Agnates and Cognates.
For female Hindu, class 1 relatives are somewhat similar ie Husband, sons and daughters, including children of predeceased son/daughter. If none of them are there, estate shall devolve upon the heirs of the husband. If there are no heirs of husband also, it will devolve upon the mother and father of the deceased, if alive.
It is to be noted however that only a self-acquired property can be bequeathed under a Will. A coparcenary property, the one that is inherited from one’s father, grandfather or great grandfather, the same cannot be the subject-matter of a Will because of common interest and common possession of other coparceners. A coparcenary property can be only partitioned by the coparceners with consent of all the coparceners and no individual has absolute ownership of the coparcenary property. Whereas, there can be no question of partitioning the self-acquired property of a Hindu which is a separate property and the owner of such property is the absolute owner. In a landmark amendment of Hindu Succession Act in 2005, equal rights have now been granted to daughters like that of a son in the coparcenary property. Now, daughters also have an equal right and a right to seek partition in the coparcenary property as this right has devolved on them by birth.
Coparcenary property is devolved upon the coparceners by survivorship, in which they had during to lifetime of the deceased, a common interest and a common possession. Whereas, self-acquired property of a Hindu belongs to him/her exclusively which is inherited by him/her through Sale, Gift or Will.
The succession of property can involve many legal complications and depending on myriad circumstances, one can find oneself embroiled in host of legal issues when it comes to matters relating to property. At Knowledgentia, we are equipped to deal with and cater to all kinds of situations that may arise and at the same time, providing best possible strategies as per dynamic ever changing legal paraphernalia that surrounds the concerns relating to Succession of property. Be it Property registration in India or one is looking for Property transfer lawyers in India, Property dispute lawyers in India, Contract drafting surrounding complicated property issues, Knowledgentia is one stop solution where we provide not just legal advice to our clients but ensure their well being from all future perspectives by adopting a proactive approach instead of reactive approach.
Aparna Jain
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