Inheritance Laws in India: Rights of Legal Heirs Explained

By NyayKart Legal Team - Experts in RERA, consumer disputes and property law across India. This Article Written By Sankalp Srivastava.

It is quite common in an Indian household to ask the question of who gets the property when a family member dies. Now, India does not have a uniform law of inheritance and it is decided according to the religion of the deceased, presence of a will and the nature of the property i.e. self-acquired or ancestral. This article examines the different laws of inheritance amongst Hindus, Muslims, Christians and Parsi in India and the absence of a uniform law necessitates a discussion upon the procedures and the practical steps for inheriting property in India.

Property disputes among legal heirs are one of the most common civil disputes in India. Understanding inheritance laws helps families avoid unnecessary litigation, delays in property transfer, and disputes over ownership. Whether a person dies with or without a will, the applicable succession law determines who is entitled to inherit the property.

What is Inheritance?

Inheritance of property refers to the legal transfer of a deceased person's assets, rights, and liabilities to their legal heirs or beneficiaries. In India, inheritance may take place through a valid will (testamentary succession) or in the absence of a will (intestate succession), depending on the applicable personal law.

Types of Property Under Indian Law

The nature of the property plays a significant role in determining inheritance rights. Broadly, property is classified into:

• Self-acquired Property: Property purchased or acquired by an individual through personal earnings or lawful means. The owner has full rights to transfer it during their lifetime or through a will.

• Ancestral Property: Property inherited up to four generations of male lineage under Hindu law, in which eligible coparceners acquire rights by birth.

• Joint Family Property: Property jointly owned by members of a Hindu Undivided Family (HUF), which is governed by the principles of coparcenary.

Different Inheritance Laws in India:

In India, personal laws govern succession, and the law that applies depends on the religion of the deceased:

Community	Governing Law for Succession
Hindus, Sikhs, Buddhists, Jains	Hindu Succession Act, 1956
Muslims	Muslim Personal Law (Shariat) Application Act, 1937, and Sunni/Shia rules.
Christians and Jews	Indian Succession Act, 1925 (Part V, Chapter II)
Parsis	Indian Succession Act, 1925 (Part V, Chapter III)
Married under the Special Marriage Act, 1954	Indian Succession Act, 1925

Hindu Law

When a Hindu Male Dies Without a Will

Section 8 of the Hindu Succession Act (hereinafter HSA) states the order in which a Hindu Males' property is to be distributed in the absence of a will. According to the section, the property first passes on to Class I heirs which include closest family members like the son, daughter, wife and mother of the deceased person. In the absence of Class I relatives, then the property goes to Class II relatives, such as siblings, grandparents, and uncles. If neither are available then it passes on to agnates or cognates.

It is important to note that Section 15(2) of the Hindu Succession Act, 1956 provides special rules for property inherited by a Hindu female from her parents or her husband. In certain circumstances, such property devolves upon the heirs of the source from which it was inherited rather than following the general order of succession under Section 15(1).

When a Hindu Female Dies Without a Will

Section 15 of the Hindu Succession act covers the hierarchy of succession for females in Hinduism. In the first place, the share goes to her children and her husband. Then it will go to her husband’s heirs, followed by her mother and father and lastly upon the heirs of her father and mother respectively.   

Daughters and Coparcenary Property

The Hindu Succession (Amendment) Act of 2005 has made a significant development in the law of inheritance for Hindu Females. According to this amendment, a daughter has acquired the same rights as of sons in terms of inheritance of property under Mitakshara school, making them co-parceners. This amendment was further reinforced in the case of Vineeta Sharma v. Rakesh Sharma (2020) wherein the Supreme Court ruled that daughters have the same coparcenary rights in Hindu ancestral property as sons, from birth. Additionally, they held that these rights apply retroactively and regardless of whether the father was alive when the amendment took effect.

Rights of Married Daughters

Marriage does not affect a daughter's inheritance rights. A married daughter enjoys the same rights and liabilities in ancestral property as a son under Section 6 of the Hindu Succession Act, 1956, as amended in 2005.

Disqualification and Special Rules

According to Section 25 and 26 of the HSA, a person can be disqualified from inheriting property of the deceased if the heir murders or abets the murder of the deceased or they have converted to a different religion at the time of succession. 

Rights of Adopted Children

An adopted child generally enjoys the same inheritance rights as a biological child under Hindu law and is entitled to inherit the property of the adoptive parents in accordance with the Hindu Adoptions and Maintenance Act, 1956.

Muslim Law

Due to absence of a single codified law for inheritance in Islam, the succession is governed under an amalgamation of Muslim Personal Law (Shariat) Application Act, 1937 and distribution ratios drawn from Sunni and Shia schools of thought.

Difference Between Sunni and Shia Inheritance

Although both Sunni and Shia Muslims are governed by Muslim Personal Law, the rules regarding the distribution of shares, residuary heirs, and exclusion of certain relatives differ between the two schools. Therefore, inheritance is determined according to the personal law applicable to the deceased.

Basically, there are two types of heirs in Islamic law, one of them receives a share of the property while the other takes the residue after sharing. Here are a few examples:

• In case of a widow, she is entitled for one - eight of the property where there are children or grandchildren, and one-fourth if there are no descendants. However, in case of a widower he gets one-fourth of the property if there are descendants and one- half if there are no descendants. 

• For children, Where a son and a daughter inherit together, the son receives a share equal to that of two daughters. Where there is only one daughter and no son, she is entitled to one-half of the estate. If there are two or more daughters and no son, they collectively receive two-thirds of the estate.

• The mother gets one-sixth of the share if there are descendants and, in the case, where there are no descendants, the mother gets one-thirds of the share. Respectively, the father gets one-sixth if there are descendants but succeeds as a residuary heir if there are no descendants.  

Evidently, in Islam, inheritance is not determined by birthright which was seen under Hindu coparceners. Under Muslim Law inheritance is determined upon the death of the property owner and in terms of wills, a person can only distribute one-third of his property and the rest is kept aside for legal heirs, this also indicates the different approach adopted in both religions i.e. Islam and Hinduism. 

Christian and Parsi Law

For Christians and Jews, if there is a widow or widower with children, then one-third of the property will go to the spouse and the remaining will go to the descendants. When there are no direct descendants, but living relatives exist, the spouse receives a half and the relatives receive the other half. In the case where there are no relatives, then the entire property will go to the spouse. 

For Parsis, the division is much more uniform. If the deceased has a living spouse and children at the time of their death then the property will be divided equally among themselves. Where either or both parents are still living, each parent is entitled to a share equivalent to one-half the share of a child.

Wills

A will or testament is a legal declaration which authorizes the testator to name the people who would inherit his estate after his death. Section 5 of the Indian Succession Act, 1925 deals with both intestate and testamentary succession. When a person dies by leaving behind a will it is known as testamentary succession. 

For making a valid will according to the Indian Succession Act, it executed voluntarily by a person of sound mind, signed by the testator and executed in the presence of two witnesses. The will need not be registered; however, it is always advisable that it should be registered. 

A person can make a will only in respect of the property or interest over which they have testamentary power. Accordingly, a person cannot bequeath property that does not legally belong to them or over which they have no transferable interest.

Essential Requirements of a Valid Will

• Testator must be competent.

• Must be of sound mind.

• Must be voluntary.

• Must bear the signature or thumb impression of the testator.

• Must be attested by at least two witnesses.

Can Ancestral Property be Given Through a Will?

A person can generally make a will only in respect of the property over which they have testamentary power. The ability to bequeath an interest in ancestral or coparcenary property is governed by the applicable personal law and the nature of the individual's interest in that property.

Documents Generally Required to Claim Inherited Property

• Death Certificate

• Identity Proof

• Address Proof

• Property Documents

• Family Tree

• Aadhaar Card

• PAN Card

• Will (if any)

Turning Legal Rights into Actual Ownership

According to the nature of the assets inherited, legal heirs are normally required to obtain a no. of certificates. These certificates include but are not limited to: 

• Legal Heir Certificate: This certificate which is provided by the Tehsildar or local revenue office, proves the identity of the legal heirs and is generally needed for pensions, provident fund claim and utilities changeover. It normally takes two to four weeks to receive this certificate.

• Succession Certificate: This certificate is issued by a civil court under the Indian Succession Act, 1925. It authorizes the legal heirs to receive the debts and securities of the deceased including his/her bank deposits, fixed deposits and shares. The issuance is based on court petition and publication seeking any objections which normally takes months.

• Probate/Letters of Administration: Where applicable under the Indian Succession Act, 1925, a probate may be required to establish the validity of a will. In cases where no valid executor has been appointed or no will exists, the court may grant Letters of Administration for the administration of the estate.

• Mutation of Records: Mutation does not create or transfer ownership of the property. It is merely an administrative entry maintained for revenue and taxation purposes.

Common Inheritance Disputes in India

• Property inherited without a will

• Forged wills

• Family partition disputes

• Ancestral property disputes

• Mutation disputes

• Disputes among legal heirs

Frequently Asked Questions (FAQs)

1. What happens if a person dies without a will in India?

If a person dies without leaving a valid will (intestate), their property is distributed among the legal heirs according to the applicable personal succession law, such as the Hindu Succession Act, 1956, the Muslim Personal Law (Shariat) Application Act, 1937, or the Indian Succession Act, 1925, depending on the religion of the deceased.

2. Can a married daughter inherit her father's property?

Yes. Under Section 6 of the Hindu Succession Act, 1956, as amended by the Hindu Succession (Amendment) Act, 2005, a married daughter has the same coparcenary rights and inheritance rights as a son in ancestral property. Marriage does not affect her legal entitlement to inherit.

3. What is the difference between a Legal Heir Certificate and a Succession Certificate?

A Legal Heir Certificate establishes the identity of the legal heirs of the deceased and is commonly used for pensions, insurance claims, and mutation of records. A Succession Certificate, issued by a competent civil court under the Indian Succession Act, 1925, authorises the legal heirs to collect the debts and securities of the deceased, such as bank accounts, fixed deposits, shares, and other financial assets.

4. Is registration of a will compulsory in India?

No. Registration of a will is not mandatory under Indian law. However, registering a will is advisable as it helps establish its authenticity and may reduce the likelihood of disputes among legal heirs after the testator's death.

Conclusion

In India, inheritance is influenced by centuries of religious and cultural practices. However, with the evolution of the constitution, these practises have been reformed to promote the status of women to promote greater equality and equity in terms of having an equal share in the property. Therefore, it is pertinent to know which law applies to your family and to make the required arrangements in terms of a will to save your loved ones from years of legal battles and uncertainty. 

How NyayKart can help

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