ASPECTS OF INHERITENCE AND TESTAMENT LAWS:

An Overview and The Rights Of The First Male Child In Father’s Property.

Author-Anisha Banerjee

What is inheritance?

Yes, the definition is as big as the term itself. We often see, talk to or listen from people about their ancestral property or may be a gifted one but, what about the wider scope of it? Is it just the pride and the exclusive property rights or with the rights there are responsibilities to exercise?

Inheritance is the natural practice of transferring not only the assets but also the liabilities to the legal heir of a person upon the death of that person. Assets and liabilities include property, titles, debts, rights, and other known or unknown obligations. The inheritance can be by either of the two ways i.e. by the way of will or through the existing Law of Succession - The Indian Succession Act, 1925. The major disputes during family partition arises due the lack of knowledge and accurate information about the inheritance laws and rights, its vital to take in recognition and understand one’s (legal heir’s) right of inheritance and all the other important information regarding it in India.

What are the two ways of inheritance?

According to Indian laws, a person can inherit or succeed to one’s property in two ways:

• By a will (Testamentary Succession) - More or less every person is concerned about his property after his death or after the death of the property holder. This concern can be minimised through a ‘will’ that will ensure the method of devolution of the property and also to whom it shall be devolved to. This shows the actual intention of the property holder. The will is important to be attested by the testator.

• Through Laws of Intestate Succession (Succession law after property holders death) – When a person dies without leaving any valid ‘will’ regarding whom the property shall be distributed among or who are the rightful legal heirs of the deceased person, there is a distribution done by the court according to the Laws of intestate succession.

It may include movable or immovable property.

What are the types of property that can be inherited by an heir?

The different types of property that can be inherited are:

• Ancestral Property - An ancestral property is a property which has been acquired by your grandfather’s father and thereby it’s passed down to your grandfather then your father up to the present generation (you). A property is qualified or termed as an ancestral property when, it’s almost three to four generations old and when it’s not been subjected to partition or division by the previous three generations.

• Property that is Self Acquired – This shall include all the property which the deceased had purchased himself / herself or acquired as a gift or present in his/her lifetime.

What is the Law for property inheritance in India?

• It can be divided or distributed under the scope of Personal Inheritance laws which has got a religious undertone – It is applicable on intestate succession i.e. without a ‘will’ succession. Personal laws include Hindu Succession Act, 1956 and the Muslim Personal Laws (Shariat) Application Act.

• Or under the Indian Succession Act, 1925 – As defined previously, it applies to the division or transfer of the deceased person’s property through ‘will’ that is through testamentary succession or inheritance of Hindus. With this a person can transfer his or her property to whoever he or she wishes to.

Now, coming to the question what is the Indian law for the inheritance of a father’s property by the ‘first male child’?

Before getting into the point, I would like to give brief details about how inheritance is dealt with under the Hindu Personal Laws.

So, the Hindu Succession Act is widely applicable to Hindus, Jains, Buddhists, and Sikhs and it takes into concern that the deceased person shall have a different class of legal heirs by whom he or she should be succeeded and all such different classes shall have various different stakes over the property. These are Class I Heirs which include widow, son, and daughter, mother of the deceased and the heirs of the pre-deceased children of the deceased person. Class II Heirs include father, grandparents, grandchildren, brother, sister, and other relatives. Then Agnates these are the blood relatives of the deceased through male link, E.g. brother’s son, son’s son, brother’s daughter, etc. And Cognates, these are the blood relatives of the deceased person through female link, E.g. sister’s son, daughter’s son, sister’s daughter, etc.

According to the proposed questions we have to look into the various aspects of inheritance and testament laws. First of all we need to find out the type of property the father acquired, was it ancestral property or self acquired i.e. separated property. If the property is ancestral, the son has equal rights as the father, given the condition when the grandparent’s property has devolved upon the father and has inevitably become the ancestral property in his hands as observed by the apex court in the case N. Arunachala Mudaliar vs C.A. Muruganatha Mudaliar And another. But if the property is self-acquired property of the father and he has willed it before then the son has no right over the father’s property unless he could prove his contribution in the property. Also the son or any other legal heir has no right over the property if the father has bequeathed it to someone as a gift or a present as observed in the case Kokila vs Swathanthira and others.

Secondly, we need to find out the legitimacy of the first child (here, male). We know the child is legitimate if he is the outcome of a legal marriage i.e. for E.g. if the person is at first married to a girl with whom he has a girl child and the girl to whom he is married (wife 1) dies or they get divorced then the girl child is his first legal or legitimate heir but, according to the proposed question if we look into another situation and the person whose wife died remarries another girl and haves a male child or the wife (wife 2) from her former marriage brings her children with her, they will also be accounted as legitimate children of the person. Hence, according to the situation the first male child has rights over his father’s property if he mentions the same in the ‘will’ otherwise he also has rights as Class I Heir in their father’s ancestral property. When the child is illegitimate, that is born to parents not married to each other or when a person remarries without getting divorced to the former wife and as a result of the marriage a child is born (here, assuming male) then the child will be known as an illegitimate child in front of the law, even after the illegitimacy the child (here, male) will be given the right to inherit the father’s self-acquired property as observed by the apex court in the case Vidyadhari & others v Sukhrana Bai & others, but not in the ancestral property.

If the child is adopted (here, male) and the father dies intestate that is without preparing a ‘will’ and he also has his own child, though the adopted child will also be considered as his own (natural-born) child right from the day of adoption, according to Section 12 of The Hindu Adoptions and Maintenance Act, 1956, then both the children i.e. the adopted child and the natural-born will be considered as legal heirs of the father and according to Section 8 of the Hindu Succession Act, 1956 the father’s assets would be devolved to his Class I Heirs.

Hence, the first male child has all the rights over the father’s property or he can inherit the ancestral property of the father which is passed on to him by his father and great grandfather respectively. But one should keep in mind to draw a will so that there is no dispute over the inheritance or partition of the self-acquired property. Another thing that is to be made sure of is before dividing the property, the successors ought to be sure that no debt or liability is attached to the property. And once the succession is confirmed the heir must apply for the mutation of the property in his own name so that it doesn’t act as a transfer of title in the government records. Once these formalities are done, one can lend it, reside in it and also sell the property if he wants to.