According to some estimates, Indian emigration is the largest in the world, with approximately more than 30 million people of Indian origin leading their life outside the country. Many of these people maintain some connection with India through their nationality or ownership of assets. In accordance with this global estate and succession planning universally involves elements of Indian succession law. Indian succession rules are complex and multi-layered and may astonish those who come up against international estates with an Indian connection.
India and other most common law countries have a succession to immovable property of an expired person are regulated by the law of the jurisdiction where the property is located, irrespective of their nationality or domicile. On the contrary, succession to the movable property of a dead person is regulated by the law of the country in which such person had their domicile at the time of their death. In some countries, succession to moveable property is governed by nationality.
Succession laws in India are divergent and depend on:
- The personal law of the deceased, which is primarily based on their religion; and
- The nature of the assets.
‘Intestate succession’ occurs when the deceased does not leave a will in respect of their assets.
The rules of intestate succession are completely based on the personal law which applies to the deceased, which is entirely based on the religion of the deceased. For Hindus, Jains, Buddhists, and Sikhs, the rules set out in the Hindu Succession Act 1956 (HSA) are applicable. In the case of Muslims, the law is uncodified and it is based on principles of Sharia, which are further classified into rules applicable to various sects and subsects. For instance, the rules which apply to Sunnis may vary from those applicable to Shias, and even among Shias, the rules applicable to Bohras may differ from those applicable to Cutchi Memons.
The succession of the deceased person without leaving a valid and enforceable Will is called Intestate Succession. The distribution principle of an asset in this regard is based on the personal laws applicable to the Deceased. Where a person creates a Will for some of the properties only, or where Will is not found valid for whatever reason, such balance property shall assign in accordance with principles of Intestate succession. If the property owner is dead due to some reason without an appropriate will, then the case is dealt with based on the Hindu Succession Act,1956. If there is no will in written form, the Indian Succession Act, 1925, is not relevant because of the existence of the Hindu system as Hindu Undivided Family (HUF) as per the Hindu Law
To consolidate matters, marriage may differ the rules of succession which apply to a person’s estate, irrespective of whether they are male or female. The principle-based on customs belongs to the parties who are following the same religion marry under the personal laws applicable to their religion. However, persons following different religions typically marry under the Special Marriage Act 1954 (SMA) which provides a special jurisdiction for inter-religion marriage.
When a person’s marriage is formalized under the SMA, the succession to his estate is regulated by the Indian Succession Act instead of the relevant personal laws. Accordingly, if a Hindu-Muslim marriage is solemnized under the Special Marriage Act, then neither the Hindu Succession Act nor Sharia rules would apply to them; instead, the Indian Succession Act would. Accordingly, forced heirship rules will cease to apply to the Muslim spouse.
In accordance with this if both the parties are Hindus, Buddhists, Jains, or Sikhs then this would be not the case. Another method by which persons following different religions may marry is by conversion of one of them into the religion of the other. On conversion, succession will be as per the personal law applicable to the religion to which the other person has converted. While the above rules apply across India, an exception to this 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 the succession to the estates of persons domiciled or born in Goa instead of the personal law applicable to the person by the integrity of their religion.