A COMPARATIVE ANALYSIS OF SUCCESSION LAWS UNDER HINDU LAW AND MUSLIM LAW

Personal laws are laws based on one’s scriptures, religious texts, and personal beliefs, which are sometimes even based on geography, as in the case of some north-eastern Indian states. Personal laws applicable in India regulate almost every aspect of life, like marriage, divorce, inheritance, adoption, guardianship, etc. A lot of these laws were discriminatory and unfair to minority groups and women. For example, Sharia Law had provisions that deprived women of inheritance, while certain Hindu customs deprived women of remarriage. Personal laws are said to preserve peculiar cultures, customs, and practices. Muslim laws are mostly determined by the Quran. Therefore, this topic is of significance for our understanding.



Personal laws have come to govern a large portion of our daily lives.Succession is one of them. Succession comes into the picture at the time of the death of a person whose estate is in question. Succession is the means of passing on property from a deceased person to another person who survives the former. Succession is of two kinds, namely testamentary succession and intestate succession.

  • Testamentary or testate succession takes place after the death of someone according to a testamentary instrument called "will". A "will" contains the rules, as per the mind of the deceased, which help in devolving the property owned by them.

  • Intestate Succession occurs when a person dies without leaving a will or a testamentary instrument.In this case, the devolution of the property will take place as per the law by which they were governed solely based on the relationship they had with their legal heirs.



Hindu succession law

The traditional and customary Hindu laws of succession, as stated earlier, are discriminatory in nature. The preferential treatment of men over women has been successfully dealt with with the codification of the Hindu Succession Act, 1956. "Hindus" in Hindu Law include Jains, Sikhs, Buddhists, and Hindus. The distribution of property can be classified into two: succession to a Hindu male and succession to a Hindu female.



Succession to Hindu Male-

The legal heirs are divided into four classes.

LEGAL HEIRS IN CLASS I INCLUDE

  1. mother

  2. Widow

  3. Daughter

  4. Daughter of a predeceased son

  5. Widow of a predeceased son

  6. Daughter of a predeceased daughter

  7. Daughter of a predeceased son of a predeceased son

  8. Widow of a predeceased son of a predeceased son

  9. Son

  10. Son of a predeceased son

  11. Son of a predeceased daughter

  12. daughter of a predeceased daughter of a predeceased daughter

  13. Son of a predeceased daughter of a predeceased son

  14. Daughter of a predeceased daughter of a predeceased son

  15. Daughter of a predeceased son of a predeceased daughter

  16. Son of a predeceased son of a predeceased son



Here, the terms "son" and "daughter" are not inclusive of "step-brother" and "step-sister."

CLASS II LEGAL HEIRS is divided into nine entries, and every entry excludes the subsequent entry.

  1. Father

  2. (a) son’s daughter’s son

(b) the son’s daughter’s daughter

(c) Brother

(d) Sister

It must be noted that brother and sister do not include uterine brother and sister.



  1. (a) daughter’s son’s son

(b) Daughter’s Son’s Daughter

(c) Daughter’s Daughter’s Son’s

(d) Daughter’s Daughter’s Daughter

  1. (a) brother’s son

(b) Brother’s Daughter

(c) Sister's Son

(d) Sister's Daughter

  1. (a) Father’s Father and Mother

  2. (a) Father’s Widow



(b) Brother’s Widow

  1. Father’s Brother and Sister

  2. Mother’s Father and Mother

  3. My mother’s brothers and sisters

AGNATES are Class III legal heirs who have relation traces to the deceased wholly through males.

Cognates are class IV legal heirs who have relations with the deceased that are not wholly through males.

If the deceased is not survived by anyone in class I of his legal heirs, then his estate will be devolved onto class II legal heirs. If there is no one in either class, the estate will be passed on to the deceased's Agnates (class III), or, failing that, to the Cognates (class IV).



Succession to Hindu Female-

The property of a Hindu female falls under three categories.

  • property inherited from her father and mother

  • her husband's and father-in-law's property; and

  • property from other sources, such as inheritance, etc.

When a Hindu female has inherited property from her father and/or mother, then it is devolved into two categories.

  • First is her son, daughter, son and daughter of a predeceased son and son and daughter of her predeceased daughter.

  • Second, to the heirs of her father.



When a Hindu female has inherited property from her husband and/or father-in-law, then it is also devolved into two categories.

  • First is her son, daughter, son and daughter of a predeceased son and son and daughter of her predeceased daughter

  • Second to the heirs of her husband.

When a Hindu female has inherited property from sources other than (a) and (b), then it is also devolved in the following entries:

  1. (1) Son



(2) Daughter

(3) Husband

(4) Son and Daughter of a predeceased son

(5) Her predeceased daughter's son and daughter

  1. Heirs of Husband

  2. The father and mother of the deceased

  3. Heirs of the deceased’s father

  4. Heirs of the deceased mother



MUSLIM LAW OF SUCCESSION

Under Muslim Law, there are two types of succession: testate successions and intestate successions.Intestate succession is otherwise called inheritance. With a major part of Islamic inheritance laws based on the Quran, there exist different personal laws for two sects, Shias and Sunnis. Such laws are not codified in nature. For instance, Sunnis who follow the Hanafi School of Law confine the benefactions to one third of the property after expenses for the funeral, wages for personal service to the deceased, etc. have been taken care of within three months of the death. The remainder of the property is then inherited by the three eligible classes of legal heirs.



Sharers:

They are the heirs whose part in the property of the deceased is prescribed. There are a total of twelve (12) sharers. They are (1) Husband (2) Wife (3) Daughter, (4) Son’s daughter or or a son’s son or a son’s son’s son’s (5) Father (6) Paternal grandfather (7) Mother (8) Paternal grandmother (9) Full sister (10) Consanguine sister (11) Uterine sister (12) Uterine brother.



Residuary:

These are the relatives who get their part after the sharers’ prescribed share is paid. They are split into three classes.

  • Residuary in their own rights: This includes only the male relations in four kinds as descendants, ascendants, descendants of father, and descendants of true grandfather, how highsoever.

  • Residuary in another’s rights: This includes those heirs who are not residuaries in their own place discreetly but become one due to another residuary relative.

  • Residuary with others: These become residuary because of co-existing with another female during inheritance.

These are the relatives who inherit if and only if there are no sharers and residuaries. This group is not recognised by the Shia sect.



Dissimilarities between Hindu and Muslim laws of inheritance

  • The Hindu inheritance law is regulated by the Hindu Succession Act, 1956, while the Muslim Shariat Law Act, 1937, regulates Muslim inheritance law.

  • The groups for the distribution of property/estate is divided into four classes (Class I, Class II, Agnates and Cognates) under Hindu inheritance law, while under Muslim Law of Inheritance it is grouped into three, namely Sharers, Residuary and Distant Kindred.



  • The Hindu inheritance law has a separate concept for ancestral and self-acquired property. Such is not the case in Muslim law of inheritance. There exists no difference between the properties on the basis of acquirement.

  • The idea of joint Hindu family property is prevalent in the Hindu inheritance law, whereas the Muslim inheritance law recognises no such thing.

  • Inheritance rights arise upon the death of a person in Muslim inheritance law. Meanwhile, in Hindu inheritance law, the right to inherit is vested by birth.



Upon the death of the decedent, their estate is distributed to each heir in the proportion provided by the Muslim inheritance law. It is so because it is believed here that the interests and concerns of each heir are distinct in nature from the others. It is unlike the Hindu inheritance law, which believes in representation.



This article is written by Manu Mishra of Banasthali Vidyapith.

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