Hindu and Muslims Laws of Succession

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Hindu Law of Succession

Succession is a method of the transfer of property from one person to other after the death of the former. After independence we have uniform secular laws of succession for all Hindus.

The old Hindu Law and customary law of succession stands abrogated. The preferential treatment of male over females has been considerably removed with the codification of the Hindu Succession Act, 1956.

The law of succession can be classified under two heads:

1. Testamentary Succession

The property (separate, divided, undivided) devolves according to the “will” of a person who has the ownership over the property or interest in the same. It deals with the rules relating to the devolution of the property on relations as well as others.

2. Intestate Succession

It is based on the rules which determine the mode of devolution of the property of the deceased on heirs solely on the basis of their relationship with the deceased, when the person dies without making his will or testament.

Hindu Succession Act, 1956

For Hindus, which include Buddhists, Jains, Sikhs, Arya Samajis, the law of intestate succession is codified in Hindu Succession Act, 1956.

The principles of devolution of property of deceased in this case are as follows.

If the deceased is a Male Hindu – There are four classes of Legal heirs.

• The property will pass on exclusively to legal heirs specified in Class I if there is anyone available.
• The legal heirs specified in Class II will get the estate of the deceased only if there is no relative in Class I.
• In case there are no heirs even in class II, then succession would devolve upon Agnates (Class III) of such deceased, failing which by Cognates (Class IV).

* Agnates are relations only through male and Cognates are relations not wholly through males.

If the deceased is a Female Hindu

• The property will pass on to Class I heirs; which includes children of predeceased son/daughter.
• If there are no class I heirs, the property shall devolve upon the heirs of the husband.
• If there are no heirs of husband, the property will devolve upon the mother and father of the deceased, if alive.
• If the property was inherited by the deceased female Hindu from her father or mother, the property would revert back to the legal heirs of her father, in case the deceased does not have any son or daughter.

Muslim Law of Succession

The property of a deceased person may devolve either by testamentary or intestate succession. Testamentary succession takes place according to the will and testament of the deceased.

Intestate succession is called inheritance under which the legal heirs of the deceased succeed to his property. The Islamic law of inheritance (non-testamentary succession), like the rest of the Islamic Personal law is a combination of the pre-Islamic customs and the rules introduced by the Prophet (PBUH).

The greater part of the Islamic law of the inheritance is founded upon the Quran. Different personal laws are there for Shias and Sunnis and such laws are not codified in any Statute.

For Sunnis following the Hanafi Law (which is followed by most Muslims in India), personal law restricts legacies to maximum one-third of the estate remaining after taking care of funeral expenses, expenses of obtaining Probate/Letters of Administration from the court, wages for personal service to the deceased within three months of his death, debts, and legacies.

The remaining property (both movable and immovable) becomes worthy to be inherited is by three classes of legal heirs.

• Sharers – who are heirs entitled to a prescribed share of the estate
• Residuaries – who will get the remaining estate, after the sharers get their prescribed shares
• Distant kindred – who are relatives other than  sharers nor residuaries. They will only get a share of the estate only if there are no Sharers or Residuaries.

Comparative Analysis of Muslim and Hindu Law of Inheritance

1. In Muslim Law, all property is one and there is no distinction between ancestral or self-acquired or separate property, whereas in Hindu law there is separate and self-acquired property.

2. There are no such things as joint family property in a Muslim family whereas, among Hindus the concept of joint family property is prevalent.

3. The right of an heir, for the first time, comes into existence on the death of the ancestor. Right by birth is unknown in Muslim law but in Hindu law right in property is vested by birth.

4. Muslim law does not recognize the doctrine of representation. The estate of the deceased person devolves upon his heirs at the moment of his death. The estate vests immediately in each heir in proportion to the share provided by the Muslim law. As the interest of each heir is separate and distinct, one of a number of heirs cannot be treated as representing the others. Thus, if P’s son R dies in the lifetime of P the son of R i.e., grandson of P cannot claim his father’s share as representing him but in Hindu law the doctrine of representation is recognized.

5. Muslim law does not recognize any interest expectant on the death of another i.e., spes successionis (mere chance of succession) while in Hindu law the doctrine of spes successionis is well recognized.

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Questions

What are the kinds of succession in Hindu law?

The Hindu Law of succession can be classified under two heads:

a. Testamentary Succession – The property (separate, divided, undivided) devolves according to the will of a person who has the ownership over the property or interest in the same. It deals with the rules related to the devolution of the property on relations as well as others.

b. Intestate Succession – it is based on the rules which determine the mode of devolution of the property of the deceased on heirs solely on the basis of their relationship with the deceased, when the person dies without making his will or testament.

What is the difference between succession and inheritance?

Testamentary Succession takes place according to the will and testament of the deceased whereas intestate succession is called inheritance under which the legal heirs of the deceased succeed to his property.

What do you mean by doctrine of representation? Whether it is applicable in Muslim law?

Muslim Law does not recognize the doctrine of representation. The estate of the deceased person devolves upon his heirs at the moment of his death. The estate vests immediately in each heir in proportion to the share provided by the Muslim Law.

As the interest of each heir is separate and distinct, one of a number of heirs cannot be treated as representing the others. Thus, if P’s son R dies in the lifetime of P, the son of R i.e., grandson of P cannot claim his father’s share as representing him but in Hindu law the doctrine of representation is recognized.

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^{Acknowledgement : This article is adapted from Swayam – NIOS course material.}