Succession rights under hindu and muslim laws

1. A comparative study based on Personal laws
By MRIDULA PANDEY
INTESTATE SUCCESSION AND
WOMEN IN INDIA

2. Background
 The Constitutional mandate set out as Directive Principles of the
Constitution defines the agenda for state action in the area of legislation
and policy. In the last six decades, some of these stated goals have been
transformed into fundamental right s through judicial interpretation
(protection of environment, right to education) while others have been
realized through legislation (empowerment of Village Panchayat).
 But one directive principle that has been constantly ignored by the state
despite being vigorously debated, is the enactment of a uniform civil
code.
 The right to equality is a fundamental right enshrined in the Constitution
of India that not only guarantees equality to all persons, but also
prohibits gender-based discrimination with regard to access to facilities,
opportunities, employment and the like.

3.  The Constitutional guarantee of equality for all irrespective of gender or
religion is conveniently overlooked when it comes to the inequality
perpetuated on women on the basis of religion under personal laws.
 This discrimination manifests itself in the most glaring form in the area
of succession law which fragments the right of Indian women to
property on the basis of their religion.
 While the right to property is no longer a fundamental right in India, the
property inheritance rights of an individual are governed by the
personal laws applicable to the individual depending on her religion.
 The inheritance rights among Hindus are governed by the Hindu
Succession Act (1956), while the Indian Succession Act (1925) governs
intestate succession among Christians, Parsis and Jews in India.

4.  As there is no codified law governing intestate
succession among Muslims, Muslims are governed
by the Hanafi or Shia law of inheritance.
 Thus, there is a plethora of personal laws governing
the inheritance rights of Indian women and Indian
courts have largely shied away from interfering with
personal laws as the right to practice one’s religion
is a fundamental right in the Constitution of India.

5. Laws governing Succession in India
• Hindu Succession Act, 1956
Hindus
• Muslim Personal Law (Shariat)Application Act,
1937
Muslims
• Indian Succession Act, 1925
Christians
• Indian Succession Act, 1925
Parsis

6. SUCCESSION IN ISLAM
 Muslim women rights have been an issue of debate ever from the time
when the Constitution came into existence in 1950. Muslim law
(Shariah) is deliberated by many as male-controlled and domineering to
women.
 However the Quran has talked about women’s concerns fourteen
hundred years back by generating some transformations to improve the
position of women though these transformations do not appear to be
adopted in practice in Muslim society nowadays.
 Although Islam as shown to the prophet Mohammed is not domineering
to women its version legislated in the family law, and daily living is
male-controlled.

7.  The following were the main principles of pre-Islamic law of
succession—
The nearest male agnate or agnates succeeded to the total
exclusion of remote agnates.
Females were excluded from inheritance and also the cognates.
The descendants were preferred to ascendants and ascendants to
collaterals.
Where there were more than one agnate of equal degree, all of
them inherited the property and shared it equally per capita.

8.  With the revelation of the Holy Quran, the basic principle of
comradeship in arms was substituted for blood ties.
 There is no bond stronger than the blood tie, became the guiding
principle and succession rights were extended to all the blood
relations of the intestate, irrespective of their sex or the sex of the
line of the relatives through whom they were related to the
deceased.
 Consequently, blood relatives (primarily females and cognates)
who were earlier excluded were called Quaranic sharers and in
competition with the already established agnates, were awarded
half of the share of the later.

9.  Thus Islam introduced the following main reforms:
The husband or wife was made a heir.
Females and cognates were made competent to
inherit.
Parents and ascendants were given the right to
inherit even when there were male descendants.
As a general rule, a female was given one half of
the shares of the male.

10. Shariat and the Property Rights of Muslim Women in present day
 The courts have time and again upheld the validity of many special
provisions favoring the interests of women. However in the case of
Muslim women the law is to be first tested on the touchstone of
Muslim personal law.
 After talaq, a Muslim woman gets maintenance only up to the iddat
period and they are excluded from the purview of Section 125 of
CrPC.
 Although Islam granted woman the right to inheritance, her share is by
no means fair and equal to that given to men. The brother takes twice
his sister’s share. This has been looked upon as discrimination against
women.
 The woman is given a lesser share because Quran has assured
inheritance to women not only as daughters but also as mothers and
wives.

11.  Moreover, in Islam the husband had to take care of his wife even if she
is wealthy enough to maintain herself. Legally she is entitled to claim
maintenance. At the same time she is not obligated to spend any of her
wealth on the household.
 A marriage or Nikah is considered as a civil contract in Islam.
 Hence, as in a contract, at the time of marriage, the Muslim woman
receives Mahr in the form of consideration for the marriage which she
is free to use, spend or invest it in any way she likes.
 Therefore as a wife she adds to whatever she receives through
inheritance in her capacity as daughter and that she does not have to
support either herself or her children. Therefore the position of a
Muslim woman is secure as far as inheritance is concerned. Their
financial situation is completely guaranteed by the Islamic law.

12. SHARERS
Spouse
- The share is ½ to husband,
reduced to ¼ when there is a
child (or descendant of a child)
- The share is ¼ to wife,
reduced to 1/8 if there are
more than one wife.
Father’s
share is
1/6th
Mother’s
share is 1/3rd
Daughter
-In the absence of
son, daughter’s
share is ½ in case
of one daughter.
Reduced to 2/3 in
case of more than
one daughter.
Uterine brother or sister
Share is 1/3rd, reduced to
1/6th in the presence of
more than one uterine
brother or sister.
Full or Consanguine
Sister
• Share is 1/2 , reduced to
2/3rd in the presence of
more than one full or
consanguine sisters.

13. HINDU LAWS
 A Hindu father in the family adorned complete power like the Roman
father in prehistoric Rome. The scriptures indisputably backed much to
mark the father, the holder of the family a absolute ruler.
 Manu said that three persons, a wife, a son and a slave are declared by
law to have in general no wealth exclusively their own; the wealth
which they may earn is regularly acquired for the man to whom they
belong.
 Similarly Narada believed in the view that a son could be independent
only if his parents are dead; during their lifetime he is dependent even
though he is grown old.
 So in a family, females and offspring did not have property rights. The
wife was placed into the set of possessions and slaves. They had a
burdened and subdued life in the patriarchal families.
 The Hindu Undivided Family even refers to the father as a Karta, the
doer.
 A Hindu Joint family comprises of men and women. The wedded and
unmarried daughters remained as affiliates of the joint family. The
male affiliates are coparceners with right of survivorship.

14.  The procedures for survivorship had been placed by Narada. He said
that if among several members, one dies childless or becomes a
religious ascetic, the other shall divide property excepting stridhanam.
So widows are barred from survivorship.
 However this old rule has been repealed by the Women‟s Right to
Property Act 1937. As per the Act the comforts of male coparceners
delegate on their expiry upon widows. This instituted Hindu women’s
domain. They were eligible to get their portion by Partition. This
legislative modification was carried out by the British to advance the
position of widow.
 Subsequent to the eradication of Sati the quantity of widows increased.
In order to discharge them of their despairs the Hindu Women‟s Right
to Property was legislated to give property rights to them; she could
enjoy the assets during the lifetime.
 It was established that the 1937 Act was insufficient to guard the
welfare of Hindu women and a committee was prearranged to make a
inclusive Hindu Code.

15.  Even after independence, there was strong disapproval amid the
congress itself against allowing inheritance rights to daughters. Hence,
the coparcenary system under the Mitakshara law was left intact.
 As an outcome, women were deprived of rights in the inherited
property of a Hindu Undivided Family. Only men could turn out to be
coparceners and property transfers to them by survivorship. Women
were completely left out from inheritance.
 Women’s claim to property has been considerably upgraded by the
Hindu Succession Act 1956.
 The notion of women being eligible to a limited domain when they
obtain property by birthright is eliminated and women are allowed to an
outright estate like men when they receive any property.
 Also the daughter of a predeceased son and the daughter of a
predeceased daughter are upraised to an upper rank.

16. Hindu Women’s Property Rights under the
Hindu Succession Act 1956
 Under the Hindu Succession Act, after the amendment of 2005,
women are now Class – I heirs and get a portion along with the son,
and further Class – I heirs. The daughters are counted in in the Class –
I in order to eliminate the discernment on the base of sex.
 Likewise succession to a women’s property or stridhan of whatsoever
nature is made even regardless of the nature of stridhanam. Similarly,
the difference between male and female successors in the situation of
succession has been gone and they are treated on identical basis if they
fit to the same grade of relationship. Women will no more be
disowned on the reason of un-chastity.
 In Section 14 of The Hindu Succession Act 1956, the restricted
concern of Hindu woman is renewed into complete rights.
 If she acquires property from her husband she can trade it and the
buyer gets complete right in the asset.

17.  Earlier to the Act, she could trade it lone for the inevitabilities of the
household or to execute religious rites for the assistance of her dead
husband.
 Another significant change carried out is to the explanation Section 6
of the 1956 Act. Upon the demise of a coparcener the property
transfers to his mother, widow and daughter alongside with his son by
testamentary or intestate succession and not by survivorship.
 This provision deliberates on the women an identical right along with
the men with the rights of the coparcenary.
 It is to be taken into notice that Section 6 still preserves the Mitakshara
coparcenary eliminating women from survivorship as a consequence
father and sons grip the joint family property to the complete barring of
the mother and daughter in spite of providing a even scheme of without
a will Succession.

18.  The strict restraints under the Shastric law on woman inheritance
were lastly taken away by the Parliament to mark it follow to the
Constitutional obligation of equivalence. The incapacity of
women in getting the father’s property was unfastened under
Section 6 of the 1956 Act.
 It was settled in Prakash v. Phulavati (2016) 2 SCC 36 rights under
the amendment area available to daughters living on the date of
amendment, irrespective of when they were born.
 The bench comprising Justice A.K Sikri and Justice Ashok
Bhushan explained it further, and stated that the amendment
declared that a daughter ‘shall by birth’ became coparcener in
her own right in the same manner as son. Hence, the daughter
will get coparcenary right by virtue of the amendment, ‘since
birth’.

19.  Correspondingly section 15 is the major legal
enactment that takes into account the succession of
Hindu female’s assets when she expires without a
will.
 Before the Act, the property of women dying
without a will was administered by regular Hindu
law. She had only restricted concern which would
be dismissed on her death.

20.  The property of a Hindu woman dying without a will shall transfer
conferring to the guidelines set out in section 16 –
(a) sons and daughters (including the children of any predeceased
son or daughter)
(b) secondly upon the heirs of the husband
(c) upon the mother and father
(d) fourthly upon the heirs of the father and
(e) lastly upon the heirs of the mother.
 Any property inherited by a female Hindu from her father or
mother shall devolve in the absence of any son or daughter of the
deceased(including the children of any pre deceased son or
daughter)not upon the heirs referred to above but upon the father.

21.  Also any property inherited by a female Hindu from her husband
or from her father –in –law shall devolve in the absence of any son
or daughter of the deceased (including the children of any pre-
deceased son or daughter)not upon the other heirs referred to above
but upon the heirs of the husband.
 This distinct scheme of succession reveals a tough male-controlled
and conventional attitude.
 Furthermore, Section 15(2) offers that the property innate from the
father would return to the successors of the father when the Hindu
woman dies without disputes.
 The section also offers that the property received from the mother
would return to the successors of the father and not to the mother’s
successors.
 The Statutory intent of preservation of property turns out to be
problematic here because if the objective is to preserve the family
property, the property got from the mother should return to the
mother’s successors.

22.  Under Hindu law, sisters are Class II heirs but the rule is that sisters
along with brothers inherit the property in equal shares. Sisters by full
blood are given preference in comparison to brother and sister by half
blood. Uterine relations are excluded in Hindu law.
 Son’s widow or son’s son’s widow are Class I category heirs. Besides
this, even the brother's widow also finds her place in Hindu law. She is
Class II, Entry VI heir.
 Under Hindu law if we analyze the position of females especially,
daughter, widow and mother as compare to their Muslim counterparts,
these females have better inheritance rights.
 The share of these females are not fixed rather they are Class 1
category heirs and inherit the property, as 'preferential heirs' and divide
it equally among other Class 1 heirs.
 Further, by the amendment act of 2005 their gender discrimination
which existed in Act of 1956, regarding the position of son and
daughter is also removed altogether. Now the position of son and
daughter is totally on equal footing.

23. LAW OF SUCCESSION FOR A CHRISTIAN
 Though the Indian Succession Act is generally applicable to Christians
there are various regions in the country where the Act is applied. This
legislation seemed to apply mainly to Europeans and other foreigners
than to Indian Christians, as large section of the Christian community
governed by customary laws were excluded from the application of
this Act, by the virtue of Section 29(2) of the Act of 1925.
 The general scheme of the succession applies to the property of Jews,
Christians, all Indians who marry under the special Marriage Act, 1954
or get their marriage registered under this Act, and the issues of such
marriages.
 The Act incorporates the Roman and English Principles of inheritance.
A uniform scheme is provided, irrespective of the sex of the intestate.
 Consanguinity is the determining factor for title to succession and
relations by affinity are not included among the list of heirs.
 Adoption does not confer any right of inheritance. In nature a secular
Act, it does not make difference of religion as between the intestate
and the heirs, a disqualification.

24.  The preference of succession is determined in the terms of
nearness in relation to the deceased, accordingly surviving
spouse and lineal descendants are made primary heir.
 Principles of representation among lineal descendants
applies without any reservations and with some restrictions,
it also applies to the brothers-sisters of the deceased and
their descendants.
 In all other cases, the general rule of nearer in degree
excluding the remoter applies. The Act does not prefer
agnates over cognates or male over females in general.

25.  The daughter of an intestate inherits as his child along with
his son and other lineal descendants, taking a share which is
absolutely equal to that of the son in all respects; (whatever
may be the character of the property) out of the total of two-
thirds of the property, the other one-third going to the
widow of the intestate.
 In absence of widow, the children and the lineal descendants
do not have to share the property with any of his other
relations and they succeed to the whole of the estate (section
34).
 Thus, until 2005 the Indian Succession Act, 1925 was the
only one which did not discriminate between the rights of
the daughter and the son.

26.  According to Sec. 33 (a) of the Act, the widow of an
intestate succeeds to his property along with his children
and other lineal descendants taking a fixed one-third share.
 Her share in absence of the lineal descendants with all other
kindred is a fixed one-half.
 Where none of the heirs is present she takes the whole of
the estate (Section 33 (b)).
 Where the total value of the property is less than Rs. 5,000,
the widow succeeds to the whole of the property in absence
of the lineal descendants.
 Where the value exceeds Rs. 5,000 she takes, in the first
instance Rs. 5,000 out of it (in case of its nonpayment has a
charge over the whole property with an interest of 4 per cent
per annum from the date the succession opens till its actual
payment) and the rest devolves by succession in which the
widow has her usual rights (section 33-A (2)).

27.  The Law commission of India, in working paper, in which it has
documented sections of the Indian Succession Act which are in need
to reform, has suggested that a widow's share in her husband's estate
should be increased from Rs. 5,000 to Rs. 20,000.
 At the same time it has observed that under the English Estates Act,
1925, where the husband leaves no children, the widow inherits all his
property.
 But inexplicably even this limited benefit of Rs. 5.000 denied to the
following categories of persons:
1. Indian Christian;
2. Any child or grandchild of any male person who is or was at
the time an Indian Christian.
3. Any Hindu, Buddhist, or Jain, Succession to whose property is
governed by the Indian Succession Act. [section 33 (a)]

28.  The mother of an intestate is not primary heir and is, therefore,
completely excluded in presence of his lineal descendants and also his
father.
 When she co-exists with the spouse, the spouse takes one half and the
other half is shared by the mother, brothers, sisters and the children of
deceased brothers and sisters of the intestate.
 The mother and each of the living brothers-sisters taking the property
per capita, while the children of pre-deceased brothers-sisters inherit
per stripes.
 This is laid down in section 44, which lays down that if the intestate's
father is dead, but the intestate's mother is living and if any brother or
sister and the child or children of any brother or sister who may have
died in the intestate's life-time are also living, then the mother and
each living brother or sister and the living child or children of each
deceased brother or sister shall be entitled to the property in equal
shares, such children (if more than one) taking in equal shares only the
shares which their respective parents would have taken if living at the
intestate's death.

29.  The quantum of the share of the mother thus depends upon
the number of the brothers and sisters of the deceased. In
contrast, the father does not share the property with anyone
else beside the widow.
 Where only the parents of an intestate are the present, the
father is preferred and succeeds to the property to the
complete exclusion of the mothers.
 This unequal placement can cause tremendous hardship in
cases of separated parents.
 Where the parents were separated from each other, either
under a decree of divorce, or even otherwise and the
custody of their children was with one parents, but due to
the operation of the Act, the property of any of these
children on their death goes to the other parent.

30.  After Pondicherry became a part of India, the Hindu succession Act
was extended to the States but as that Act only applies to certain
categories of persons who come under the term ‘Hindu’, the Indian
Christians in Pondicherry can no longer be governed by it.
 The Indian succession Act has not been extended to the State, so the
Christians there continue to be governed by the precodified Hindu
Law, which relegates a woman to an inferior position and does not
even regard her as being full owner even in the few cases where she
can inherit property.
 Thus, the Law Commission of India in its 174th Report recommended
the extension of Indian Succession Act to Goa and Pondicherry.
 Thus, under Indian succession Act, 1925 the position of daughter is
satisfactory as she inherits equally with any brothers and sisters to her
father's estate or her mother's. She is entitled to shelter, maintenance
before marriage but not after marriage from her parents. She has full
rights over her personal property, upon attaining majority. Until then,
her natural guardian is her father.

31. PARSI INTESTATE SUCCESSION
 The Parsi community in India initially had no law of their own. While
preserving their separate identity, they had adopted the customs of the
residents of the area where they had first taken shelter.
 In 1925, when the Indian Succession Act was enacted, (which governs
mainly Christian succession) the Parsi Intestate Succession Act was
verbatim incorporated in Chapter III of this Act.
 Interestingly, during the years 1870 to 1925, considerable progress
was made in the realm of married women’s property rights under the
English statutes and the concept of equality between men and women
regarding inheritance had been accepted.
 Based on these developments, the Indian Succession Act did not
discriminate between male and female heirs.
 But before the Amendment of Parsi intestate Act in 1991, the Paris
inheritance laws, continued to maintain the discrimination and females
continued to inherit half the share of their male counterparts. Section
50-56 of Indian Succession Act, 1925 deal with the Parsis.

32.  Before the Amendment in 1991, the main feature of the rules
governing the Parsi intestates was that like the Hindu law and
unlike the Muslim law, there are separate rules for the devolution
of the property of male and female Parsi intestates.
 The rules relating to the intestate succession of males have the
characteristic of Muslim law, namely, the share of a male heir was
double that of a female heir of the same degree.
 For example, if a male Parsi dies leaving a widow and children,
the property will be divided so that the share of each son and
widow will be double the share of each daughter.
 Further, if a male Parsi dies leaving one or both parents, in
addition to a widow and children, the property will be divided so
that the father shall receive a share equal to half the share of a son
and the mother shall receive a share equal to half the share of a
daughter.

33.  The inferior position of a mother in the scheme of
succession thus becomes evident and the position was
radically different from that which prevails under the Hindu
Succession Act, 1956.
 This position may be contrasted with the rules applicable to
the succession of a female Parsi intestate.
 If she dies, leaving a widower and children, the property will
be divided equally among them and if she dies leaving
children only, among the children equally.
 Thus, while a son was entitled to an equal share in the
mother’s property along with the daughter, the daughter is
not entitled to the same right when she inherits the property
of the father along with the son.

34.  In the case of Smt. Dhanbhai v. State of M.P, where a Parsi
male dies intestate leaving behind him his widow, three sons
and two daughters, it was held that under Section 51, the two
daughters together would get a share equal to the share of
their mother or brother.
 It was further held, that the mere fact that the daughters took
no step to get their names mutated or make any demand on
other heirs for separation of their shares, cannot defeat their
title, or effect it in any way to their disadvantage.
 The widow of an intestate is one of his primary heirs and
inherits along with his lineal descendents, taking a share
which is equal to that of her children.

35.  In case where the intestate leaves no lineal descendants but leaves a widow or
widower or a widow or widower of any lineal descendents than the position of
widow is that:
(a) If intestate leaves a widow or widower but no widow or widower of lineal
descendants, the widow or widower shall take half of the said property
(section 54(a)).
(b) If the intestate leaves a widow or widower and also a widow or widower
of any lineal descendants, his widow or her widower shall receive one-
third of the said property and the widow or widower of any lineal
descendants shall receive another one-third or if there is more than one
such widow or widower of lineal descendants, the last-mentioned one-
third shall be divided equally among them (section 54 (b)).
(c) If the intestate leaves no widow or widower but one widow or widower of
a lineal descendant, such widow or widow of the lineal descendant
receive one-third of the said property or if the intestate leaves no widow
or widower but more than one widow or widower of lineal descendants,
two-third of the said property shall be divided among such widow or
widower of the lineal descendants in equal share. In absence of all his
kindred, she succeeds to the whole of his property (section 54(c)).

36.  The mother now shares equally with the father but under the Parsi law
the share of the parents is half the share of each child.
 Now where a Parsi dies leaving one or both parents in addition to
children or widow or widower and children, the property of which such
Parsi dies intestate shall be so divided that the parent or each of the
parents shall receive a share equal to half the share of each child.
 Similarly where the Parsi intestate dies leaving neither lineal
descendents nor a widow or widower nor (a widow or widower of any
lineal descendants) his or her next-of -kin, in the order set forth in Part
II of Schedule II, shall be entitled to succeed to whole of the property of
which he or she dies intestate.
 The next-of-kin standing first in Part II of that Schedule shall be
preferred to those standing second, the second of the third, and so on in
succession, provided that the property shall be so distributed that each
male and female standing in the same degree of propinquity shall
receive equal share (section 55).

37.  Among the next-of-kins mentioned in Part II of Schedule II, the order
of preference will be as listed therein.
(1) Father and mother.
(2) Brothers and sisters (other than half brothers and sisters) and lineal
descendents of such of them as have predeceased the intestate.
(3) Paternal and maternal grandparents.
(4) Children of the paternal and maternal grandparents and the lineal
descendents of such of them as have pre-deceased the intestate.
(5) Paternal and maternal grandparents' parents.
(6) Paternal and maternal grandparents' children and the lineal
descendants of such of them as have predeceased the intestate.
(7) Half brothers and sisters and the lineal descendants of such of them
as have predeceased the intestate.
(8) Widows of brothers or half brothers and widowers of sisters or half
sisters.
(9) Paternal or maternal grandparents' children's widow or widowers.
(10) Widows or widowers or deceased lineal descendants of the intestate,
who have not married again before the death of the intestate.

38.  Similarly, where the Parsi intestate dies leaving no lineal descendants
but leaves a widow or widower of any lineal descendants then the
position of the mother is defined under section 54(d), which lays down
that the residue after the division specified in clause (a) or clause (b) or
clause (c) has been made shall be distributed among the relatives of the
intestate in the order specified in Part I of Schedule II; and the next-of-
kin standing first in Part I of that Schedule shall be preferred to those
standing second, the second to the third and so on in succession,
provided that the property shall be so distributed that each male and
female standing in the same degree of propinquity shall receive equal
shares.
 The mother and the father among themselves inherit equally and their
presence would exclude all other heirs as both of them are in Category
I. but here it is also worth mentioning that in the presence of children,
widow, widower or lineal descendants

39. CONCLUSION
 After going through the comparative study of all the Succession
laws applicable in India i.e. Hindu, Muslim, Christian and Parsi,
the proprietary position of females under Hindu law is very much
better. Further, after the Amending Act of 2005, in one stroke all
the features under the Act of 1956 which discriminated between
male and female heirs got removed and both the sexes were
placed on equal footing.
 The Constitution of India recognizes equality of status and in fact
provides for certain provisions under the chapter on fundamental
rights more favourable to women but in actual practice they are
observed more in breach than in compliance.

40.  An analysis of the inheritance rights of the Christian, Hindu and
Muslim women brings forth the reality that only the Christian
women alone are deprived of the right to inherit a share of the
ancestral property. This is the mere callousness of the
Legislature.
 The international Conventions on women always focus on
women’s inheritance rights. However neither the community
nor the Church would ever take any step to plug the existing
loopholes in the Indian Succession Act 1925 because they are
up in arms against women inheriting property. The Law
Commission also has been enthusiastic in the reforms of Hindu
Succession Law. No such enthusiasm is shown in reforming
Christian Personal Law.

41. THANK YOU