The Indian Succession Act

The Indian Succession Act was enacted in 1925. The object of the Act was to consolidate the large number of laws which were in existence at that time. Laws governing succession to Muslims and Hindus were excluded from the purview of the Act. While consolidating the law in respect of succession, two schemes, one relating to succession to property of persons like Indian Christians, Jews and persons married under the Special Marriage Act, 1954 and the other relating to succession rights or Parsis, were adopted. Testamentary succession(through will) amongst Hindus are also governed by the Indian Succession Act.

This Act was amended by the Indian Succession (Amendment) Act, 2002. It was felt that section 32 of the principal Act is discriminatory to widows and as such the proviso to section 32 was omitted to remove discrimination in this regard. Section 213 was also amended by this amending Act to make Christians at par with other communities.

The law relating to intestate succession among Hindus is codified in the Hindu Succession Act, 1956 (30 of 1956). It extends to the whole of India except the State of Jammu and Kashmir. The remarkable features of the Act are the recognition of the right of women to inherit property of an intestate equally with men and abolition of the life estate of female heirs.

A vast majority of Muslims in India follow Hanafi doctrines of Sunni law. Courts presume that Muslims are governed by Hanafi law unless it is established to be the contrary. Though there are many features in common between Shia and Sunni schools, yet there are differences in some respects. Sunni law regards Koranic verses of inheritance as an addendum to pre-Islamic customary law and preserves the superior position of male agnates. Unlike Hindu and Christian laws, Muslim law restricts a person’s right of testation.

A Muslim can bequeath only one-third of his estate. A bequest to a stranger is valid without the consent of heirs if it does not exceed a third of the estate, but a bequest to an heir without the consent of other heirs is invalid. Consent of heirs to a bequest must be secured after the succession has opened and any consent given to a bequest during the lifetime of the testator can be retracted after his death. Shia law allows Muslims the freedom of bequest within the disposable third.