Fundamental Differences Hindu & Muslim Law of Inheritance

22nd April, 2024 - 6:19 am Categories: News & Updates 0 Comments

INTRODUCTION TO THE PERSONAL LAWS

India’s personal law is diverse because of its many historical influences, unique guiding principles, and the vast majority of substantive law. Broadly there are four different religions in our country that is Hindu, Muslim, Parsi, Christian and they are governed by distinct laws. A variety of succession laws are lawfully functional and valid in India as a result of these factors. One of the most significant things a person can have is property, which is passed down to his or her descendants after the owner’s death. Inheritance and succession symbolise lineage in our Indian society. In simple terms, transferring a person’s assets, debts, titles, rights, and obligations to some other person after his/her death is referred to as property inheritance. In our country, any person who wants to inherit or succeed the property can do via two means, first option is via Will and second option is via laws of succession when an individual passes away without a Will. Post-independence, all Hindus are subject to the same secular laws of succession. The traditional law of succession and the outdated Hindu law are repealed and therefore no more in practice. With the introduction of the Hindu Succession Act, of 1956 and its amendment thereafter, the treatment of men as superior to women in terms of property allocation has been greatly reduced. The Jains, Buddhists, Sikhs, and Hindus are all covered by the Hindu Succession Act. Muslims in our country, in a similar manner are governed via Muslim Shariat Act, 1937. The holy book Quran serves as the primary foundation for the majority of Islamic inheritance law. The remainder property (be it moveable or immoveable) becomes eligible to be inherited after the deduction of funeral costs, costs associated with obtaining Probate/Letters of administration from the court, money spent on personal service rendered to the deceased within three months of his death, debts, and legacies[1].

ANALYSIS

Owing to different sources, customs and beliefs, both the religions have different rules and regulations for inheritance of property. Where on one hand the Hindus have a codified legislation like Hindu Marriage Act,1855 and Hindu Succession Act, 1956, Muslim personal law is majorly uncodified. This therefore, implies a sense of obligation upon the people to follow the codified legislation on contrary to the uncodified.

BASIS OF ADOPTION

Moving further the next difference is on the “basis of adoption”[2]. Prior to the proposals and amendments, adoption was not permitted under Hindu Succession Act. Prior to this adoption was viewed as being illegal. To put in simple words, the adopted child had no claim onto the land once the father/owner passed away. He was not eligible to participate in the succession of that land/property as a result. Even if any transfer of property was made, it was not acknowledged by the society and eventually completely invalid. Post amendment, the adopted child was started to be recognised as a legitimate successor. Whether the child was adopted or be it the biological child of that family, both were given the same treatment after the appropriate amendment took effect. He possesses ownership of the property and is recognized as a qualified person for inheriting the property. If the decedent leaves behind the property without any legal inheritor, the adopted inheritor will fill his shoes and become the inheritor of the property so left and later on the property distribution will take in accordance with that. On the other hand, in Muslim law Adoption is not seen as legal. The adopted son’s ability to inherit the land has not been mentioned by any of the schools. Some schools accept adoption as legitimate, but they do not provide them ownership rights to the property.

CATEGORIES OF PERSONS

There are numerous “categories of persons” [3]who may be qualified for obtaining the ownership over the property, which is where the difference occurs in cases of property distribution. In Hindu Law there are 4 categories which are mentioned below:

1. class I heirs
2. class II heirs
3. Agnates

According to this order, the property will subsequently be divided. Amendment of 2005 increased the number of heirs in class I category from twelve to sixteen. The importance is currently given to those in this class. Class I heirs in broad sense include “widow, son, daughter, mother of the intestate” and last is the intestate’s predeceased children’s heirs (this includes the son, daughter, and widow of the predeceased children too). These heirs all receive their inheritance at once, exclusive of other heirs. The property passes to the listed heirs stated in class II if none of the successors in this group are alive. Category of class II heirs majorly include “father, grand- parents, grand -children, brother, sister and other relatives from father and mother’s side like their mother, father, brother, sister.” The property would descend to agnates in cases where a Hindu male died without forming a will and left no class I or class II heirs. When two people are linked / related via blood or adoption only and only through males, they are said to be agnates of one another. Agnate relationships are limited to those formed by blood and do not include marriage. Additionally, widows of the intestate’s lineal descendants are not considered agnates. Cognates are those who share some male ancestry with the intestate, either through blood or adoption. As a result, the sons of the mother’s brother and the brother’s daughter are cognates and entitled to inherit. The basic succession requirements for male heirs are mentioned in Section 10 of the HSA, 1956 which also addresses the above-mentioned division of family members for the purpose of property inheritance. Class II heirs are next in line to receive the property if none of the Class I heirs claim it[4].

On the other hand, Muslim Law categorization is made into 3 parts which are mentioned below:

1. Sharers
2. Residuary
3. Distant Kindred.

The classification of distant kindred is not recognized by either of the two main schools, but it is recognized under Sunni law because the majority of people adhere to this Sunni Muslim religion. The category of sharers also called Ashabul- Faraiz are total twelve in count- four of them males and eight are females. The very next group of people is known as Residuary or Asabah. The reason behind this being that they receive the leftovers after the sharers who are not excluded have received their share of the proceeds. Residuary class is further divided into 3 classes which are as follows:

1. Residuary in their own right
2. Residuary in another’s right
3. Residuary together with another

The last and the final category of receivers is Distant kindred or Dhauil- arham. Those relatives of a deceased person who neither fall in the category of sharers nor in that of residuary. In the absence of both category 3 inherits the property. This category has no significance in Shafi and Maliki school. They do not consider them as heirs. This category is further classified into four parts:

1. The descendants/successors of the deceased.
2. The deceased’s ancestry
3. His parents’ descendants
4. His grandparents’ descendants (They are taken into account, notwithstanding their remoteness).

 CLASSIFICATION OF PROPERTIES

The difference between both the personal laws also arises on the basis of “classification of properties”[5]. Property can broadly be categorised into ancestral property and self-acquired property. Ancestral property is also called as co- parcenary property. Section 6 of the Hindu Succession Act, 2005 post amendment now includes the devolution of property among both male and female co heirs. Now just like males, females too have inherent right by birth. They enjoy the same rights and are bound by the obligations and liabilities over the property just like a son does. But when it comes to self- acquired property, it is not bound by any such law. If the ownership or title of the property is independent of a will, a person may claim inheritance rights. This is referred as “intestate succession”. If the deceased left behind a will, the property should pass according to the priorities and directions stated in the will.

On the flip side Muslim Law doesn’t take into consideration ancestral property.[6] They follow the concept of single or joint property. This law governs the inheritance rights of those properties. The property is passed on, on the basis of “per capita” and “per stripes” concept. Shia law acknowledges the concept of  per-strip distribution system. This technique of passing down property divides the assets among the heirs in accordance with the strip to which they belong. Branch and number of branch members, therefore determine the size of the property they will inherit.  Sunni law on the other hand follows the per capita approach. This method divides the heirs’ share of the estate left behind by the forefathers evenly. The number of heirs determines how much of the property each person receives.

FEMALES INHERITING THE PROPERTY

A very notable difference is on the basis of “females inheriting the property[7]”. Prior to the amendment males were the only receivers. Post amendment, a widow received top consideration because she was more righteous than any other female member. She was lawfully entitled to receive her dead husband’s property. This amendment made in 2005 was considered to be a landmark decision as it led to others treating women with full dignity who are not less than their counterpart in any manner. Section 15 of HSA, 1956 provides for rules and regulations for succession of property for a female Hindu. According to Islamic law, a woman was granted the right to a portion of the property as soon as their own legislation was passed. But they are granted a smaller percentage of share in property than Muslim men do. Shia law prescribes that women be receiving half of the shares of what men get because they receive maintenance and mehr (dower) as well at the time of marriage whereas men are only granted ancestral property. Widows are also granted access to inherit the property. In the absence of any children, she is entitled to 1/4^th of the property and in presence of a child or grandchildren the share is changed to 1/8^th of the husband’s property. In this sense, after the change was made, Hindu law just like Muslim law has started to treat equally women in terms of property inheritance. The Amendment Act further states that married girls’ right to request a part of property is an unalienable right that is not subject to any restrictions[8].

CHILD UNDER WOMB

One more point of difference arises on the basis of “child under womb”[9]. According to Hindu law, a child is regarded to be alive if it is in the mother’s womb and will receive a share of the coparcenary property. A child in a mother’s womb is only eligible to inherit property under Islamic law if the infant is born alive. If not born alive the share is cancelled and distributed further accordingly.

SUCCESSION BY GOVERNMENT

And the last point of difference is “succession by government”[10]. Under Muslim law if a person dies without a legal heir the government can inherit his property via the process of “escheat”. Under HSA, 1956 section 20, it states that the property shall be automatically taken into possession of and used by the government if there are no living legal heirs or heirs as common to the deceased.

CONCLUSION AND SUGGESTION

Personal laws are the rules that differ from one religion to another. However, when we study them, we realize that all laws are practically identical to one another; the only difference is in the tradition and practice that have been observed for a long time. Every religion has personal laws that are somewhat dissimilar from the each other but are generally the same and are applied according to their own procedures. Due to the fact that it includes several religions, India’s property inheritance law is highly extensive. Over time, it has undergone a number of modifications. Hindus and Muslims, both have distinct legal heirs, and each religion also has distinct forms of succession. Hindu Succession Act has by and large made provisions to cover all aspects when it comes to inheritance of property. The amendment in 2005 has also covered the loophole where now a female too has the same rights as that of men. But if we look into the Islamic Laws even though they vested females with rights of inheritance and succession of property, at some point these rights are more biased when it comes to Muslim males than Muslim females. Therefore, a son would get twice the amount of share of what a daughter would get in their father’s property. This seems little primitive when compared with Hindu law which has become fair, just and unbiased towards females. A little pragmatic approach is therefore required so that both the personal laws are at par with each other.

Author: Anavi Jain and Sonakshi Pandey, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

[1] Dr. Poonam Pradhan Saxena, Family Law II 551 (Lexis Nexis, 5^th ed. 2022).

[2] Dr. Poonam Pradhan Saxena, Family Law II (Lexis Nexis, 5^th ed. 2022).

[3] Dr. Poonam Pradhan Saxena, Family Law II 323 (Lexis Nexis, 5^th ed. 2022)

[4] Kalyan kumar v. Pratibha Chakraborty, AIR 2010 (NOC) 646.

[5] Supra note 2.

[6] Sharma, Naina. “Comparison of Succession under Hindu and Muslim Law.” Journal of Legal Studies & Research 8, no. 6 (2022): 247-265.

[7] Prakash Chand Jain, WOMEN’S PROPERTY RIGHTS UNDER TRADITIONAL HINDU LAW AND THE HINDU SUCCESSION ACT, 1956: SOME OBSERVATIONS, Vol. 45, No. ¾. JIIL 515, 509-536 (2003).

[8] Nagammal vs. Desiyappan, AIR 2006 Mad 265.

[9] Supra note 2.

[10] Supra note 2, at 481.