Home Speak to a lawyer Meet a lawyer Flat fee services About Blog Careers Contact Us Terms & Conditions Privacy Policy Legal Topics
It\'s ME
Blog
Recent Post

Get Legato App on your mobile.

Inheritance Law in India
  • By: Adv. Jayatinn B Laalwani
  • Date: 20 Nov 2019
  • Family
  • Comments:
  • Views:8
  • Likes:

Inheritance means Succession, succession follows the death of a person. Inheritance of property means the passing on property, its title, debts, rights and obligations to the other party upon the death of an individual. The term inheritance is referred to whatever an individual receives upon the death of the relative according to law whichever is applicable when no will is present. Inheritance is the integral component of the family. It is the process of passing the material property from one generation to another. The transmission in inheritance is regulated and governed by specific laws in India. The law of testamentary or inheritance can be easily segregated in terms of religions.

 

Laws Related To Inheritance

 

The Hindu Succession Act was passed in the year 1956 by the parliament to amend and codify the laws relating to the intestate. The Hindu Succession Act was established to assure equal inheritance rights to both son and daughters. The Act states, every Indian is entitled to an equal share on inheriting the property. The Act applies to all Hindus, Sikhs, Buddhists and Jains. It plays an important role in the process of dealing with the inheritance of property. In India, inheritance or how the property is to be distributed is determined by the law of succession. In 2005, the Hindu Succession Act was amended by clarifying the right of women in dealing or disposing of the property as per her will.

The governing law applicable to Parsis for the intestate succession is the Indian Succession Act 1925 under section 50 and 56. Also, the governing law applicable to Christian and Jews inheritance is governed under section 31 to 49 of the Indian Succession Act, 1925.

Laws of succession governing Muslims in case of non-testamentary succession is the Muslim Personal Law (Shariat) Application Act, 1937. And if any Muslim has died intestate, then the issue of an intestate is governed under the Indian Succession Act 1925. Law of succession in case of interfaith marriages is governed under the Special Marriage Act, 1954. The Indian Succession Act, 1925, states that everyone is entitled to equal inheritance.

 

Intestate Succession

 

The property gets delegated upon the relatives of the deceased in two ways:

  1. Testamentary Succession
  2. Intestate Succession

 

Testamentary Succession refers to succession resulting from a legally executed testament. It is also known as the right of inheritance. The testamentary succession is fixed at the time of a decedent’s death. It occurs when a person dies and leaves a will.

Intestate means when a person died without making a will, which is capable of taking effect. If a person is said to have died intestate that means he has not disposed his assets under a will. Or the disposition mentioned under a will is not capable of taking effect on account of the illegal bequest. If a person dies intestate, the assets in his possession are distributed as per the provisions of the Indian Succession Act.

 

Intestate Succession Among Hindus/Muslim/Christians

 

India has several laws governing the intestate succession among the different religions. The mains laws that governers the intestate are as follows:

  1. Hindu Succession Act
  2. Intestate Succession Act
  3. Sharia Law
  4. Indian Succession Act

 

Hindu Succession Act applies to Hindus, Buddhists, Sikhs and Jains. The laws applicable to inheritance depends on the gender of the deceased. In the case of males, there are four classes of people who can inherit the property of a man. The first preference goes to the Class I heirs than for Class II and so on. ‘Heir’ is a person, who under the law of intestacy is entitled to receive the property of the intestate deceased.

 

As per the Hindu Succession Act, 1956, further amended in 2005, if a Hindu male dies intestate then the following person can make a claim:

  • Class I heirs: The class I heirs are the immediate relatives of the deceased that is the wife, children, mother, siblings and grandchildren. If the children of the deceased died before the deceased, then their spouses will form part of Class I heirs.
  • Class II heirs: The class II  heirs include the father, grandfather, uncle, aunt, nephews and nieces of the deceased.
  • Class III heirs: The class III heirs are the relatives of deceased from the male line, but it is limited to the blood relatives. They are called as agnates.
  • Class IV heirs: They are the relatives of the deceased from the female line; they are called cognates.

 

If a Hindu female dies intestate, the four classes of heirs are slightly different:

  • Class I heirs: The husband and children of the female are the clas I heirs.
  • Class II heirs: The heir’s of her husband are the class II heirs of the female.
  • Class III heirs: The class III heirs are her parents.
  • Class IV heirs: The heir’s of her mother are the class IV heirs of the female.

 

The apex court in case of DanammaSumanSurpurvs Amar &Ors clarified that the position of law relating to the Hindu Succession Act, 2005 held that the right is inherent and can be availed by any coparcener, as per the amended act of 2005, even a daughter is a co-parcener.

 

Indian Succession Act is the act that applies to Parsis, Christians and other religions that are not mentioned in the Hindu Succession Act. The spouse of the deceased takes one-third of the total inheritance in the absence of children and no living relatives. 

The remaining two-thirds are divided between the children and surviving relatives in the following order of preference:

  • Father
  • Equally between mother, brothers and sisters (nephews or nieces if brothers and sisters are dead)
  • Mother (in case if there are no brothers, sisters, nieces or nephews)
  • Other close living relatives

 

As per section 2 of the Indian Succession Act 1925, the legal heirs of the Christians are husband, wife or the kindred of the deceased. In Mary Roy v. the State of Kerala, the apex court decided upon the inheritance rights of a Christian Women against the law for the first time. It also held that no personal law can be held above the Constitution of India.

 

Sharia law applies to Muslims. Under this law, one can divide only upto the one-third of the estate. In Sharia law, whether the succession is testate or intestate, the son, daughter, father, mother, brothers, sisters, grandsons and granddaughters are the nine relatives that inherit the remaining two-thirds of the estate.

 

Conclusion

 

To avoid the complications and disputes within the family, proper planning should be adopted by the families. Due to the evolving nature of inheritance and succession law, proper steps should be taken to understand the inheritance rights. Despite several developments in law, the awareness regarding inheritance law is on a downward graph and hence it is the need of the hour.

Read More

Inheritance Law in India

By: Adv. Jayatinn B Laalwani Family 20 Nov 2019

Inheritance means Succession, succession follows the death of a person. Inheritance of property means the passing on property, its title, debts, rights and obligations to the other party upon the death of an individual. The term inheritance is referred to whatever an individual receives upon the death of the relative according to law whichever is applicable when no will is present. Inheritance is the integral component of the family. It is the process of passing the material property from one generation to another. The transmission in inheritance is regulated and governed by specific laws in India. The law of testamentary or inheritance can be easily segregated in terms of religions.

 

Laws Related To Inheritance

 

The Hindu Succession Act was passed in the year 1956 by the parliament to amend and codify the laws relating to the intestate. The Hindu Succession Act was established to assure equal inheritance rights to both son and daughters. The Act states, every Indian is entitled to an equal share on inheriting the property. The Act applies to all Hindus, Sikhs, Buddhists and Jains. It plays an important role in the process of dealing with the inheritance of property. In India, inheritance or how the property is to be distributed is determined by the law of succession. In 2005, the Hindu Succession Act was amended by clarifying the right of women in dealing or disposing of the property as per her will.

The governing law applicable to Parsis for the intestate succession is the Indian Succession Act 1925 under section 50 and 56. Also, the governing law applicable to Christian and Jews inheritance is governed under section 31 to 49 of the Indian Succession Act, 1925.

Laws of succession governing Muslims in case of non-testamentary succession is the Muslim Personal Law (Shariat) Application Act, 1937. And if any Muslim has died intestate, then the issue of an intestate is governed under the Indian Succession Act 1925. Law of succession in case of interfaith marriages is governed under the Special Marriage Act, 1954. The Indian Succession Act, 1925, states that everyone is entitled to equal inheritance.

 

Intestate Succession

 

The property gets delegated upon the relatives of the deceased in two ways:

  1. Testamentary Succession
  2. Intestate Succession

 

Testamentary Succession refers to succession resulting from a legally executed testament. It is also known as the right of inheritance. The testamentary succession is fixed at the time of a decedent’s death. It occurs when a person dies and leaves a will.

Intestate means when a person died without making a will, which is capable of taking effect. If a person is said to have died intestate that means he has not disposed his assets under a will. Or the disposition mentioned under a will is not capable of taking effect on account of the illegal bequest. If a person dies intestate, the assets in his possession are distributed as per the provisions of the Indian Succession Act.

 

Intestate Succession Among Hindus/Muslim/Christians

 

India has several laws governing the intestate succession among the different religions. The mains laws that governers the intestate are as follows:

  1. Hindu Succession Act
  2. Intestate Succession Act
  3. Sharia Law
  4. Indian Succession Act

 

Hindu Succession Act applies to Hindus, Buddhists, Sikhs and Jains. The laws applicable to inheritance depends on the gender of the deceased. In the case of males, there are four classes of people who can inherit the property of a man. The first preference goes to the Class I heirs than for Class II and so on. ‘Heir’ is a person, who under the law of intestacy is entitled to receive the property of the intestate deceased.

 

As per the Hindu Succession Act, 1956, further amended in 2005, if a Hindu male dies intestate then the following person can make a claim:

  • Class I heirs: The class I heirs are the immediate relatives of the deceased that is the wife, children, mother, siblings and grandchildren. If the children of the deceased died before the deceased, then their spouses will form part of Class I heirs.
  • Class II heirs: The class II  heirs include the father, grandfather, uncle, aunt, nephews and nieces of the deceased.
  • Class III heirs: The class III heirs are the relatives of deceased from the male line, but it is limited to the blood relatives. They are called as agnates.
  • Class IV heirs: They are the relatives of the deceased from the female line; they are called cognates.

 

If a Hindu female dies intestate, the four classes of heirs are slightly different:

  • Class I heirs: The husband and children of the female are the clas I heirs.
  • Class II heirs: The heir’s of her husband are the class II heirs of the female.
  • Class III heirs: The class III heirs are her parents.
  • Class IV heirs: The heir’s of her mother are the class IV heirs of the female.

 

The apex court in case of DanammaSumanSurpurvs Amar &Ors clarified that the position of law relating to the Hindu Succession Act, 2005 held that the right is inherent and can be availed by any coparcener, as per the amended act of 2005, even a daughter is a co-parcener.

 

Indian Succession Act is the act that applies to Parsis, Christians and other religions that are not mentioned in the Hindu Succession Act. The spouse of the deceased takes one-third of the total inheritance in the absence of children and no living relatives. 

The remaining two-thirds are divided between the children and surviving relatives in the following order of preference:

  • Father
  • Equally between mother, brothers and sisters (nephews or nieces if brothers and sisters are dead)
  • Mother (in case if there are no brothers, sisters, nieces or nephews)
  • Other close living relatives

 

As per section 2 of the Indian Succession Act 1925, the legal heirs of the Christians are husband, wife or the kindred of the deceased. In Mary Roy v. the State of Kerala, the apex court decided upon the inheritance rights of a Christian Women against the law for the first time. It also held that no personal law can be held above the Constitution of India.

 

Sharia law applies to Muslims. Under this law, one can divide only upto the one-third of the estate. In Sharia law, whether the succession is testate or intestate, the son, daughter, father, mother, brothers, sisters, grandsons and granddaughters are the nine relatives that inherit the remaining two-thirds of the estate.

 

Conclusion

 

To avoid the complications and disputes within the family, proper planning should be adopted by the families. Due to the evolving nature of inheritance and succession law, proper steps should be taken to understand the inheritance rights. Despite several developments in law, the awareness regarding inheritance law is on a downward graph and hence it is the need of the hour.

Read More
Comments:
Views: 8
Likes:

Surrogacy (Regulation) Bill, 2019

By: admin Family 06 Aug 2019

The Surrogacy bill was approved by Lok Sabha and introduced in Rajya Sabha on Monday, 5th August 2019. The Bill regulates the surrogacy services to prevent exploitation of surrogate mothers and to protect the rights of children born through surrogacy.

The Surrogacy (Regulation) Bill, 2019 regulates surrogacy by establishing National and State Surrogacy Board in India. The State and Union Territories shall constitute a State Surrogacy Board. The 228th report of Indian Commission recommended the prohibition of commercial surrogacy and has allowed the altruistic surrogacy by enacting legislation.

Altruistic surrogacy refers to those surrogacy agreements where the surrogate does not receive any monetary compensation. In most altruistic surrogacy agreements, the surrogate is a close relation to the intended parents (family member/close friend). 

  1. The main purpose of the bill is to prohibit illegal commercial surrogacy. It states that the intending couples should not abandon a child under any situation. Our country has emerged as a surrogacy hub for couples from other countries. 
  2. The unethical practice, exploitation of surrogate mother, abandonment of children born out of surrogacy and rackets involved in intermediaries importing human embryos and gametes are reported in our country on a large scale. Ethical Surrogacy for couples will be allowed on the fulfilment of specific conditions. 
  3. No permanent structure is created in the proposed bill. The government assures that there will be no financial implication except the National Surrogacy Boards and appropriate authorities to get the administrative budget of respective departments.
  4. Another clause added is that the couple should be legally married for at least five years before attempting to deliver a baby through surrogate mother.
  5. This clause attracted the issue of why should a couple have to wait for five years after marriage and what is the definition of a legally married couple.
  6. Critics say that bill had left single parent and aspiring parents from alternative sexualities out of the ambit of the law and hence making it very narrow. 
  7. The bill allows only altruistic surrogacy by infertile Indian couples from a close relative, and prohibit the foreigners from commissioning surrogacy. Single parents, homosexuals and live-in couples, cannot apply for surrogacy.
  8. Some amendments moved by the opposition are rejected. Health Minister, Dr Harsh Vardhan said that India has emerged as a hub for surrogacy in recent years due to the absence of any specific law regulating the sector. 
  9. The offences under the Bill include undertaking or advertising commercial surrogacy, exploiting the surrogate mother and abandoning, exploiting or disowning a surrogate child.
  10. The bill aims to keep a check on such clinics by protecting many poor women from exploitation. 
  11. According to Bill, women within the age group of twenty-three years to fifty years and men with the age group of twenty-six years to fifty-five years will be eligible for surrogacy.

Read More
Comments:
Views: 135
Likes:

Rajya Sabha passes the Triple Talaq Bill

By: admin Family 31 Jul 2019

Rajya Sabha passes the Triple Talaq Bill

  1. Triple Talaq is an age-old practice followed by Muslim men wherein it gives them a right to instantly divorce their wife on the utterance of a single word ‘Talaq’. 
  2. Talaq means divorce in the Arabic language. 
  3. Some Indian Muslim groups believe that the Triple Talaq is grossly against women; however, they are of the opinion that this practise should be reviewed by the Muslim community leaders rather than the government. 
  4. A lot of Muslim leaders had earlier opposed the Triple Talaq bill stating that the BJP was entering their houses using the legislation. 
  5. But there were actual instances of Triple Talaq ending marriages over WhatsApp chat that started taking place. 
  6. Hence there was a dire need of legislation despite the Supreme Court ruling that the Triple Talaq is arbitrary and unconstitutional because the accused man will now face punitive action.
  7. The BJP hailed the passage of the Triple Talaq bill by Parliament as a step that will help correct a historical wrong done to Muslim women, even as the Congress questioned the relevance of criminalising the practice.
  8. The National Democratic Alliance (NDA) succeeded in getting the Muslim Women (Protection of Rights on Marriage) Bill, 2019 voted through despite the fact that it is in the minority in the Upper House, pointing to the government’s effective floor management.
  9. Despite stiff opposition from the Congress and other Opposing parties that demanded the bill be sent to a parliamentary committee for scrutiny, the government won the day by 99:84 votes. 
  10. The missing 30 parliamentarians helped the NDA government pass the bill. 
  11. The passing of the Muslim Women (Protection of Rights on Marriage) Bill was a major legislative success for the BJP.

PM Narendra Modi wrote on Twitter:

“An archaic and medieval practice has finally been confined to the dustbin of history! Parliament abolishes Triple Talaq and corrects a historical wrong done to Muslim women. This is a victory of gender justice and will further equality in society. India rejoices today!"

President Ram Nath Kovind wrote on Twitter:

“Passage in the Rajya Sabha of Muslim Women (Protection of Rights on Marriage) Bill completes Parliament’s approval of a ban on the inequitable practice of Triple Talaq. A milestone in the quest for gender justice; a moment of satisfaction for the entire country,"

Effects of the passage of the Bill:

  1. The pronouncement of instant Triple Talaq is void and illegal. 
  2. As opposed to the earlier law, Triple Talaq is now a punishable offence which can be punishable with imprisonment up to three years or fine or both. 
  3. The offence is cognizable (within the jurisdiction of the court) if the Muslim women, upon whom the Triple Talaq is pronounced files a complaint to an officer in charge of the police station.
  4. The offence shall be compoundable (those offences where the complainant enters into a compromise and agrees to have the charges dropped against the accused) at the instance of the married Muslim women upon whom Triple Talaq is pronounced. 
  5. An offender can be arrested without a Warrant 
  6. On an application by the accused, no person alleged of a punishable offence shall get bail unless the magistrate is satisfied that there are reasonable grounds to grant bail, after hearing the Muslim women.
  7. Married Muslim women upon whom Triple Talaq is pronounced entitled to receive from her husband, such amount of subsistence allowance as determined by Magistrate.
  8. Married Muslim women shall be entitled to custody of her minor kids in the event of pronouncement of Triple Talaq by her husband, as determined by the Magistrate.

Read More
Comments:
Views: 210
Likes:

Guardian and Ward Act In India

By: Jayatinn B. Lalwani Family 16 Sep 2019

The Guardians and Wards Act is Central legislation enacted by the Parliament in the year 1890 with a view to protect the interests of the minor and to grant security to the minor himself and the property of the minor. The Act is of universal application irrespective of the religion dealing with guardianship of children.

A guardian is someone who gets appointed to take care of the minor himself or property of that person or both. The protected individual, known as the ward, is considered legally incompetent of acting for himself or herself; examples are a child or individuals suffering from a severe illness.

The question of guardianship most commonly arises in the households where there is an issue of parental abuse, negligence, drug dependency, divorce or death (in which case, custody is generally vested in one parent).

The Act aims to define a Guardian and a minor legally, it lays down a procedure for filing a case, manner in which the guardian can be appointed,  the manner to list down the property of the minor in relation to this act. These terms are more specifically described below:

Who is a Minor, Guardian, and a Ward:- 
  1. "Minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority. 
  2. "Guardian" means minor for whose person or property or both there is a guardian. 
  3. "Ward" means a minor for whose person or property or both there is a guardian.

Where can you file the case? 
For the Guardianship of a minor, the case should be filed before the District Court within the jurisdiction where the minor resides, or the place where the child has its property.

If the case of guardianship of the property of a minor is filed before the district court, not within the jurisdiction where the minor resides, the court has a right to return the application or to dispose of the same.

The Guardians and Wards Act, 1890 is a law to replace other rules relating to the guardianship of a minor. It is the only non-religious universal law for the guardianship of a child; It applies to all children despite any difference in caste, creed or race. 

As per the act, a minor is any person who has not completed 18 years of his age. The court and the appointed authority can decide the guardian of a child by selecting the one. No order can be passed without making an application. The application contains all information about the child/minor and reasons for guardianship. Once the court admits the form, then the hearing date is set by the court. The court will hear evidence before making a decision. A minor and his property may have more than one guardian. The court must work in the interest of the minor, taking into consideration the age, sex, religion, character of the guardian, the death of the parent(s) and also the relation of the guardian with a child. The court always considers the preference of the minor. 

The collector of the district within the jurisdiction of minor resides can appoint the guardian of the child. Guardians are not allowed to make a profit, but they can receive remuneration as the court seems fit. One minor cannot be deemed as a guardian of another. A guardian is responsible for the education, health and support of the ward.

Guardians who intend to move the child out of the court's jurisdiction may only do so with the permission of the court. Failure to get approval before moving the child is a punishable offence under this Act. A guardian of a minor’s property is not allowed to mortgage or sell the property of a ward without the permission of minor or the court who must act in the interest of the child.

The guardian must submit the list of ward's immovable and movable property to the court.  The court can allow the guardian of minor to use funds from the property or use the whole property for the maintenance of the minor. A court can remove a guardian for abusing the trust of the court and not performing his role as a proper guardian. A person who intends not to act as a guardian of a minor can apply to the court for the discharge of his duty. 

It is a punishable offence if the guardian fails to produce the property, or if he fails to produce the child before the court when ordered or if he fails to produce an account of the property of the minor. 
Reports submitted by the subordinates of court or collector can be considered as evidence. Such orders can be appealed in a High Court.

Read More
Comments:
Views: 317
Likes: