UNIQUE COMPLEXITIES OF INDIAN
SUCCESSION LAWS
Introduction
By
some estimates, the Indian diaspora is the largest in the world, with more than
30 million people of Indian origin living outside the country. Many of these
people retain some connection with India through their nationality or ownership
of assets, especially real estate. Consequently, global estate and succession
planning invariably involves elements of Indian succession law. Indian
succession rules are complex and multi-layered and may confound those who
encounter international estates with an Indian connection.
some estimates, the Indian diaspora is the largest in the world, with more than
30 million people of Indian origin living outside the country. Many of these
people retain some connection with India through their nationality or ownership
of assets, especially real estate. Consequently, global estate and succession
planning invariably involves elements of Indian succession law. Indian
succession rules are complex and multi-layered and may confound those who
encounter international estates with an Indian connection.
This two-part series
examines some of the fundamental concepts of Indian succession law and explains
certain concepts which are unique to Indian law (eg, the Hindu undivided
family). Part two also includes information that practitioners should seek from
their India-linked clients to determine the legal framework applicable for
devising a suitable estate and succession plan (for further details see
“Unique complexities of Indian succession laws: part two”).
examines some of the fundamental concepts of Indian succession law and explains
certain concepts which are unique to Indian law (eg, the Hindu undivided
family). Part two also includes information that practitioners should seek from
their India-linked clients to determine the legal framework applicable for
devising a suitable estate and succession plan (for further details see
“Unique complexities of Indian succession laws: part two”).
Legal
framework
framework
Interplay
of succession rules
of succession rules
In most common law
countries, including India, succession to immovable property of a deceased is
regulated by the law of the jurisdiction where the property is situated,
irrespective of their nationality or domicile. On the other hand, succession to
the moveable property of a deceased is regulated by the law of the country in
which such person had their domicile at the time of their death. In some other
countries, succession to moveable property is regulated by nationality.
countries, including India, succession to immovable property of a deceased is
regulated by the law of the jurisdiction where the property is situated,
irrespective of their nationality or domicile. On the other hand, succession to
the moveable property of a deceased is regulated by the law of the country in
which such person had their domicile at the time of their death. In some other
countries, succession to moveable property is regulated by nationality.
Therefore, if any of these
factors are satisfied, the succession to the estate of a person residing abroad
may be governed by Indian law. However, the term ‘Indian law’ is a misnomer
inasmuch as it suggests the uniformity or homogeneity of succession laws.
factors are satisfied, the succession to the estate of a person residing abroad
may be governed by Indian law. However, the term ‘Indian law’ is a misnomer
inasmuch as it suggests the uniformity or homogeneity of succession laws.
Succession laws in India
are diverse and depend on:
are diverse and depend on:
- the personal law of the
deceased, which in turn is largely based on their religion; and
- the nature of the
assets.
Owing to the variety of
religious affiliations of Indians (India recognises at least six major
religions), determining the relevant succession regime can be more complicated
in India than in other common law countries.
religious affiliations of Indians (India recognises at least six major
religions), determining the relevant succession regime can be more complicated
in India than in other common law countries.
Within this broad
regime, succession laws vary depending on whether succession is intestate or
testamentary.
regime, succession laws vary depending on whether succession is intestate or
testamentary.
Intestate
succession
succession
‘Intestate succession’
occurs when the deceased does not leave a will in respect of their assets.
occurs when the deceased does not leave a will in respect of their assets.
As explained above, the
rules of intestate succession vary based on the personal law applicable to the
deceased, which is based on the deceased’s religion. For Hindus, Jains,
Buddhists and Sikhs, the rules set out in the Hindu Succession Act 1956 (HSA)
apply. For Muslims, the law is uncodified and is based on principles of Sharia,
which are further divided into rules applicable to various sects and subsects.
For instance, rules applicable to Sunnis may differ from those applicable to
Shias, and even among Shias, the rules applicable to Bohris may differ from
those applicable to Cutchi Memons.
rules of intestate succession vary based on the personal law applicable to the
deceased, which is based on the deceased’s religion. For Hindus, Jains,
Buddhists and Sikhs, the rules set out in the Hindu Succession Act 1956 (HSA)
apply. For Muslims, the law is uncodified and is based on principles of Sharia,
which are further divided into rules applicable to various sects and subsects.
For instance, rules applicable to Sunnis may differ from those applicable to
Shias, and even among Shias, the rules applicable to Bohris may differ from
those applicable to Cutchi Memons.
The Indian Succession
Act 1925 (ISA) applies to both Christians and Parsis – however, the relevant
rules for Christians are contained in Chapter II of Part V, whereas the
relevant rules for Parsis are contained in Chapter III of Part V.
Act 1925 (ISA) applies to both Christians and Parsis – however, the relevant
rules for Christians are contained in Chapter II of Part V, whereas the
relevant rules for Parsis are contained in Chapter III of Part V.
The below table sets
out an example of how inheritance varies. It compares the legal heirs of a
person passing away intestate with surviving parents and a spouse but no
children or siblings, according to their religion at the time of demise.
out an example of how inheritance varies. It compares the legal heirs of a
person passing away intestate with surviving parents and a spouse but no
children or siblings, according to their religion at the time of demise.
Testamentary succession
The rules for
testamentary succession are significantly less complicated than those for
intestate succession. The ISA applies uniformly to wills of persons of all
faiths, other than Muslims.
testamentary succession are significantly less complicated than those for
intestate succession. The ISA applies uniformly to wills of persons of all
faiths, other than Muslims.
Therefore, concepts of
capacity, formal validity and essential validity of the wills of Hindus, Sikhs,
Jains, Buddhists, Christians and Parsis are contained in the ISA. However, a
deceased’s religion may influence whether probate of the will is required.
capacity, formal validity and essential validity of the wills of Hindus, Sikhs,
Jains, Buddhists, Christians and Parsis are contained in the ISA. However, a
deceased’s religion may influence whether probate of the will is required.
For Muslims, to whom
this regime does not apply, the rules of testamentary succession are not
codified and are based on Sharia. As with intestate succession, the rules
differ based on the deceased’s sect and subsect. However, the basic rule which
applies to nearly all Muslims is that of forced heirship, whereby a Muslim testator
may bequeath only one-third of their estate, which is left after the payment of
funeral expenses and debts, by will unless their heirs’ consent is obtained. If
there are multiple bequests under the will which together exceed one-third of
the estate, the bequests abate proportionately. The remaining balance of the
estate is inherited by the spouse and the remaining heirs.
this regime does not apply, the rules of testamentary succession are not
codified and are based on Sharia. As with intestate succession, the rules
differ based on the deceased’s sect and subsect. However, the basic rule which
applies to nearly all Muslims is that of forced heirship, whereby a Muslim testator
may bequeath only one-third of their estate, which is left after the payment of
funeral expenses and debts, by will unless their heirs’ consent is obtained. If
there are multiple bequests under the will which together exceed one-third of
the estate, the bequests abate proportionately. The remaining balance of the
estate is inherited by the spouse and the remaining heirs.
Marriage
To compound matters,
marriage may vary the rules of succession applicable to a person’s estate,
irrespective of whether they are male or female.
marriage may vary the rules of succession applicable to a person’s estate,
irrespective of whether they are male or female.
Customarily, parties
professing the same religion marry under the personal laws applicable to their
religion. For instance, Hindus marry under the Hindu Marriage Act 1955 and
Christians under the Indian Christian Marriage Act 1872. However, persons
professing different religions typically marry under the Special Marriage Act
1954 (SMA) which provides a special regime for interfaith marriage.
professing the same religion marry under the personal laws applicable to their
religion. For instance, Hindus marry under the Hindu Marriage Act 1955 and
Christians under the Indian Christian Marriage Act 1872. However, persons
professing different religions typically marry under the Special Marriage Act
1954 (SMA) which provides a special regime for interfaith marriage.
When a person’s
marriage is solemnised under the SMA, succession to their estate is governed by
the ISA instead of the applicable personal laws. Accordingly, if a Hindu-Muslim
marriage is solemnised under the SMA, then neither the HSA nor Sharia rules
would apply; instead, the ISA would. Consequently, forced heirship rules will
cease to apply to the Muslim spouse. However, this is not the case if both
parties are Hindus, Jains, Buddhists or Sikhs.
marriage is solemnised under the SMA, succession to their estate is governed by
the ISA instead of the applicable personal laws. Accordingly, if a Hindu-Muslim
marriage is solemnised under the SMA, then neither the HSA nor Sharia rules
would apply; instead, the ISA would. Consequently, forced heirship rules will
cease to apply to the Muslim spouse. However, this is not the case if both
parties are Hindus, Jains, Buddhists or Sikhs.
Another method by which
persons professing different religions may marry is by conversion of one party
to the religion of the other. On conversion, succession will be as per the
personal law applicable to the religion to which the person has converted.
persons professing different religions may marry is by conversion of one party
to the religion of the other. On conversion, succession will be as per the
personal law applicable to the religion to which the person has converted.
Goa
While the above rules
apply across India, an outlier is the state of Goa which was, until 1961, a
Portuguese territory. Goa has its own laws regarding matters of succession and
inheritance (influenced by its Portuguese history) which govern succession to
the estates of persons domiciled or born in Goa instead of the personal law
applicable to the person by virtue of their religion.
apply across India, an outlier is the state of Goa which was, until 1961, a
Portuguese territory. Goa has its own laws regarding matters of succession and
inheritance (influenced by its Portuguese history) which govern succession to
the estates of persons domiciled or born in Goa instead of the personal law
applicable to the person by virtue of their religion.
This article was first
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published by the International Law Office, a premium online legal update
service for major companies and law firms worldwide. Register for a free
subscription.
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AS – 20122019