Sucession

The laws of inheritance are complex. In case a person dies without making a WILL, the Law of succession defines the allotment of property. The law provides precise details regarding the percentage of property that will be inherited by the concerned persons.

It is preferable for a person to prepare WILL to manifest his intentions regarding the property and its inheritance. The ignorance of Succession Laws, often lead to a situation that, legitimate heirs do not receive the reasonable share of the ancestral property.

When a person dies unexpectedly and there is no WILL, it often creates problems for the legal heirs and successors. This can result to injustice.

SUCCESSION CERTIFICATE

• Succession Certificates are granted by the Court to prove the authenticity with respect to the ownership of the property (movable or immovable) succeeds or inherits by a person or to realize the debts and securities of the deceased and to give valid discharge.
• A succession certificate, when granted to a person, which empowers him:
  • To receive profits, interest or dividends etc.
  • To negotiate the transfer any of them
  • To deal with the securities of a deceased person
    (E.g. bond, stock, debenture or security)
• The successor is required to dispose of the amount so realized in accordance with the rights of the person entitled thereto.
• The person, who is in need of Succession Certificate may
  • File an application in the court, where the properties of the deceased relative are situated, or where he / she normally resided.
    • Depending on the value of the estate of the deceased, the matter shall go to a court, as per the pecuniary jurisdiction of the court, with the names of all the other heirs of the deceased as the respondents in the matter.
  • Send a notice to all the concerned parties and publish it in the newspaper as well, apart from mandatory notice to the respondents.
• Upon the expiry of the time period (normally 1 and a half months) from the date of publication of the notice, and after the reception of the ‘no objection’ from the respondents, the court passes the orders for issuance of the Succession Certificate to the person/s making such an application.
• Judicial Stamp papers of sufficient amount as per the prescribed court fees structure, to be submitted in the court, upon which, the Certificate is typed by the court staff, duly signed, sealed and delivered.
• Normally it takes 6 months to 1 year, but now it takes about 2-3 years because of long pending cases in the Court of Law.

Certain Notable Features Of The Hindu Succession Act, 1956

• The Act shall apply to all intestate Hindu succession ex¬cept (i) to the property of a person to whose marriage pro¬visions of the Special marriage Act (1954) apply, and (ii) to the impartibly estates of Rulers, of Indian States, suc¬cession to which is regulated by special covenants or agree¬ments or any existing enactments. (Vide Sec. 5).
• The Act will also not apply to a Mitakshara coparcenary.Property except when a coparcener dies leaving female heirs mentioned in Section 6.
•  The Act lays down new provisions for the devolution of the property of a male Hindu (Vide Sec. 8) and of a female Hindu (Vide Sec. 15), dying intestate.
• The Act abolishes Hindu women’s limited estate and con¬fers on her absolute property right. (Vide Sec. 14).
• Where property of an intestate devolves upon two or more heirs and any one of such heirs proposes to transfer his or her interest, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. (Vide Sec. 22).
• Section 23 gives right of residence to a female heir in the dwelling house of the intestate family, if she is unmarried or is married but discarded or is a widow.
• A convert’s descendants have been disqualified from in¬heriting the property of their Hindu relatives, unless such- descendants are Hindu at the time when the succession opens. (Vide Sec. 26). The convert himself, in view of the Cast Disabilities Removal Act, 1850, however, will not be so disqualified,
• No person shall be disqualified from succeeding on the ground of any disease, defect or deformity or on any other ground not provided in the Act. (Vide Sec. 28).
• Section 30 entitles a male member of a Hindu Mitakshara coparcenary to dispose of his interest in the coparcenary by will.

What is an HUF?

In the Hindu society, there is a presumption that Hindu families are living in a state of union unless the contrary is established. Members of Hindu families are ordinarily joint and undivided in estate, food and worship. The concept of a Hindu Undivided Family (HUF) as understood today, is an integral feature of the Hindu society and is one that has evolved on the basis of customs.

Coparceners and Members

A coparcener is a person who acquires interest in the joint family property by birth. The essential difference between a ‘coparcener’ and a ‘member’ of an HUF is that a coparcener can enforce partition of the HUF, while a member cannot.

Prior to the year 2005, an HUF was understood as a family with a common ancestor and all lineal male descendants together with their wives and unmarried daughters. The 2005 Amendment to the Hindu Succession Act, 1956 however brought about a vital change to the concept of an HUF.

Prior to the Amendment of 2005, only lineal male descendants were regarded as coparceners whereas daughters merely attained the status of members on birth and not coparceners. The Amendment of 2005 however has conferred equal rights upon daughters. Daughters, just as sons, become coparceners of their father’s HUFs on birth, with the result that they have equal rights as sons in the properties of the HUF.

Woman as a Karta

With daughters being granted coparcenary rights, an important question looming was whether a daughter can be a Karta of an HUF. Not being a coparcener, a woman could not be a Karta of an HUF prior to 2005. However, now that a woman is a coparcener in an HUF, there remains no reason for her not to assume the position of a Karta.

HUF property

Existence of joint property is not a prerequisite for constituting an HUF. The concept of HUF is not related to possession of any property by the family. An HUF is a situation which is understood not with reference to the existence of a joint estate as an essential requisite. A family which does not own any joint property may still have the character of a Hindu joint family. This jointness is understood in terms of faith and food. The reason is that a Hindu is born as a coparcener of the joint family. In the context of the situation, it would follow as a consequence that it is not necessary that at any point of time an HUF must have connection with ancestral property. The main requirement is the manifestation of jointness and the very basic foundation that a Hindu is born as a coparcener of the family.

A coparcener in an HUF may have separate properties, which are distinct from the properties of the HUF. Such separate properties may be the coparcener’s self-acquired properties or may have been acquired by such a coparcener through gifts or under a bequests. A coparcener may however choose to integrate such property into the joint family property by voluntarily pooling it in the common stock of the HUF, with the intention of abandoning his/her separate claim in such property. However, to establish such abandonment, the coparcener pooling such property must express a clear intention to waive separate rights over such property.

Partition of an HUF

Severance of the joint and undivided status of an HUF can be brought about by a partition. Such a Partition can be initiated by one or all of the coparceners together. Partition of an HUF which is joint in food, worship and estate can be effected both as regards persons and properties. Such a partition could be either complete or partial.

A complete partition of an HUF would involve a partition of all of the constituents and of all of its properties. A partial partition, on the other hand, would entail either (a) only some constituents separating from the family and the others remaining in the common hotchpotch or (b) only some of the properties being partitioned and others continuing to remain joint.

Partition results in shares of (each or some, as the case may be) the coparceners being ascertained. Actual division of property by metes and bounds is not a necessary facet of such a partition. Division of properties by metes and bounds would involve allotment of separate properties towards ascertained shares of family members. After partition but till such time as the joint family property is divided by metes and bounds, the members of the erstwhile joint family will hold the properties as tenants-in-common. As a result, on the death of a coparcener, his/her share in the joint family property will devolve by testamentary / intestate succession, as the case may be, and not by survivorship.

Courts have observed that partition is really a process in which and by which a joint enjoyment of the property is transformed into enjoyment in severalty. Each of the sharers has an existing title and therefore no conveyance is involved in the process.

A partition does not confer title in property in favour of a coparcener. It only enables a coparcener to obtain what is his own in a definite and specific form for purposes of disposition, independent of wishes of the former co-sharers. It is not necessary that partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate a partition among coparceners and to confer right to a separate share in property and enjoyment thereof.