Wills / Trusts

Intestate Succession or Succession without a WILL: Things you should know

Soumya Shekhar
Soumya Shekhar 05 min read 1629 Views
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Intestate succession means a succession without a will. A will generally dictates how a person plans to transfer his assets or properties after his death to his/her heirs. A person dies intestate when he has not bequeathed his properties according to a will. Succession can either be testate or intestate. 

Meaning of Testate Succession

In some cases, a person leaves behind a Will, which specifies property distribution after their death. In such cases, the Will controls succession.

When succession takes place in this manner, it is known as testamentary succession

Meaning of Intestate Succession

In other cases, a person does not leave behind a will. In such cases, intestate succession law controls succession. Thus, the persons who become entitled to the deceased's properties are the deceased's, legal heirs. In India, the succession law applicable to a deceased's estate depends on their religion. Hindus, Muslims, Christians, Parsis, etc., have different succession laws. When succession takes place in this manner, it is known as intestate succession. 

Intestate Succession under Hindu Law

If the deceased is a Hindu, Hindu Succession law will govern the succession. The Hindu Law of Intestate Succession is in the Hindu Succession Act, 1956. 

Two Types of Property

Under Hindu Law, the property is of two types: 

  1. Joint Family Property: The Hindu Joint Family is an ancient social structure prevailing in Indian society. In Hindu Law, specific properties are considered Joint Family Property. Generally, all property inherited from one's father, paternal grandfather, and paternal great-grandfather are considered Joint Family Property. 

  2. Self-Acquired Property: All other properties are considered the Self-Acquired Property of the respective person. The most unambiguous indication of Self-Acquired Property is that it is acquired with the money of one's efforts.

This distinction is important because, depending on where you reside, different rules govern the succession of Joint Family Property and Self-Acquired Property. 

People Also Read This: How to Inherit Property in India?

The succession of Joint Family Property

Depending on where you reside, you will be governed either by Dayabhaga Law or Mitakshara Law. Generally, Hindus living in West Bengal, Orissa, and parts of Assam, are governed by Mitakshara Law, and Mitakshara Law governs all other Hindus. Both of these refer to old schools of religious Hindu law that prevailed in these respective geographical regions. Once upon a time, these schools of law governed the substantial part of Hindu succession. Today, there are of minimal significance. Legally, its only importance in the present is determining the order of intestate succession.

Section 6 of the Hindu Succession Act governs the Mitakshara Joint Family Property's succession. When a coparcener dies, their share in the Joint Family Property passes to the legal heirs according to the rules contained in this Section. The process is as follows: 

  1. You divide the whole joint family property amongst the deceased and their legal heirs. Usually, the deceased, their wife, their children (both sons and daughters), and their parents get equal shares.

  2. The share the deceased person receives becomes his self-acquired property. This share passes to the deceased's legal heirs according to the rules governing Self-Acquired Property's succession (see below).

The succession of Self-Acquired Property

The rules governing the succession of Self-Acquired Property of the deceased varies based on the gender of the deceased. However, the same rules apply to all Hindus regardless of whether Dayabhaga Law or Mitakshara Law governs them. 

For male Hindus, there are four categories of legal heirs: Class I heirs, Class II heirs, agnates, and cognates. The Schedule of the Hindu Succession Act, 1956 specifies Class I heirs and Class II heirs. An agnate is a person who is (i) neither a Class I heir nor a Class II heir, but (ii) is a descendant of the deceased through a pure male line. A cognate is a person who is (i) neither a Class I heir nor a Class II heir, but (ii) is a descendant of the deceased through a line consisting of both males and females. The order of intestate succession in self-acquired property is as follows:

  1. Class I Heirs: If any Class I heir[s] exist, they get the deceased's whole Self-Acquired Property. If more than one such heir exists, they both get equal shares. The deceased's wife, sons, daughters, and mother are notable Class I heirs. However, the father of the deceased is not a Class I heir. 

  2. Class II Heirs: If not a single Class I heir exists, the whole Self-Acquired Property of the deceased goes to the Class II heirs. The deceased's father, brothers, and sisters are notable Class II heirs. If the father is alive, he takes the whole property. If he isn't alive, then the brothers and sisters take the property in equal shares. 

  3. Agnates: If there are no Class I and Class II heirs, the deceased's agnates take the whole of the Self-Acquired Property. 

  4. Cognates: If there are no Class I and Class II heirs, the deceased's cognates take the whole of the Self-Acquired Property. 

A different set of rules applies to female Hindus. For female Hindus, the order of intestate succession for legal heirs is: (i) sons, daughters, and husband; (ii) heirs of the husband; (iii) parents; (iv) heirs of the father; and (vi) heirs of the mother. Each category is preferred to the later ones, in that order of preference. All heirs of the same class get equal shares of the property. 

People Also Read This: About Inheritance Rights in India


Position of Illegitimate Children

The intestate succession of an illegitimate child is only through his mother. An illegitimate child's share in intestate succession is restricted to his mother and not his father.  

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What Does the Succession Law Say?
Wills / Trusts

What Does the Succession Law Say?

Throughout your life, you will acquire multiple properties. All of these properties, taken together, comprise your estate. When you pass away, your estate must find new owners. Otherwise, it will be left in an 'ownerless' estate. 

Thus, after you pass away, your estate will pass to new owners. This process is known as Succession or Inheritance. The new owners of your estate are known as your successors. Succession Law is the law that governs this entire process. Succession is different from Inheritance. Inheritance is the process of the heir inheriting his ancestors' Property. Succession governs how the inheritance would take place. Typically, under Indian Succession Law, a succession certificate is required. Succession Certificate is credible proof that the person obtaining the same is the rightful heir. 

 

Types of Succession

Succession is of two types: 

  1. Testamentary Succession. 

  2. Intestate Succession. 

After your death, the succession of your estate will be either testamentary or intestate. It cannot be both at the same time. If you have left behind a Will, the succession of your estate will be testamentary. Otherwise (that is, if you have not left behind a Will), your estate's succession will be intestate. 

 

Testamentary Succession

Testamentary succession is nothing more than executing a will. A will would then govern how your property is distributed among your legal heirs. A will includes the following information: 

a) Who gets your estate 

b) How is your estate distributed among the various heirs? 

Persons named in your will are your legatees. You can choose anyone to be your legatee. It is not required that a legatee is your relative. Wills are recognized under the Indian Succession laws.

The Indian Succession Act, 1925 governs the making and enforcing of Wills. It is the law which governs testamentary succession in India. Indian Succession Act, 1925 applies to everyone, except Muslims. Muslims are governed by their own personal laws. A Will gives you freedom to distribute your property according to your wishes.  However, if you are a Muslim, you cannot bequeath by a Will any more than 1/3 of your estate unless your legal heirs' consent to exceed this cap. There is no such limitation for anyone else.

You can execute your Will in accordance with the Indian Succession Act, 1925, if you are not a Muslim. If you are a Muslim, you have to execute your Will according to the Muslim personal laws. Capture the will in writing and sign it. You can also affix your thumb impression on the Will. Two witnesses need to attest the Will. These witnesses should have seen you sign the Will. A Will can be executed on plain paper. A Will need not be executed on a stamp paper. It is also not necessary to be registered.

Muslims can execute their Wills through a far easier procedure. Your Will need not be signed or written. It can even be oral. There is no need for attesting witnesses. You need to make your intent clear through your Will. However, oral wills are difficult to prove. Hence, It is preferable to capture your will in writing. 

After one passes away, a person should be made responsible to execute the will. Typically, lawyers are given this responsibility.  When another person implements the instructions given in the Will of a deceased, it is called executing the Will. The person who executes the Will is called an executor. Executors take care that the estate is distributed in accordance with the Will. There can be multiple executors. You can choose one person or more than one person to act as executors of your Will.  Remember to take their consent. Choosing an executor should be a careful process. If you don't appoint an executor, or the executors refuse to act as executors after your death, the competent court can appoint some of your legal heirs as the executor[s].

 

Intestate Succession

If you die without leaving a Will, your property would pass on through Intestate succession. Laws governing intestate succession in India are not uniform. You are governed by the personal law of your religion. 

Different laws of intestate succession govern different religions in India. For instance, Hindu Succession Act, 1956 governs the intestate succession for Hindus.  Indian Succession Act, 1925, governs the intestate succession for Christians. Hence, if you are a Hindu, then the Hindu Succession Act, 1956 will apply; if you are a Christian, then the Indian Succession Act, 1925 will apply, etc.

While different laws apply to different religions, the core provisions are uniform across all laws. Certain persons will become the new owners of your estate. These persons are known as your legal heirs.

Each legal heir will inherit a specific share of your estate. The applicable Law of Intestate Succession will hence specify both your legal heirs and the shares of your estate each legal heir is entitled to inherit.

For instance, consider a married Hindu male. If you are a Hindu married male, ordinarily, your wife, sons, daughters, and mother are your legal heirs. They will each take an equal share of your estate. If you pass away leaving behind,a son, daughter and a wife, each of them will be entitled to an equal share. If your daughter is already deceased and is survived by her daughter, then your grand-daughter would also have a right in the property through her deceased mother. 

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Hindu Law of Succession

The Hindu Law of Succession is contained in the following three sources: 

  1. The Indian Succession Act, 1925, which governs the testamentary succession of the estate of a Hindu. 

  2. The Hindu Succession Act, 1956, which governs the intestate succession of the estate of a Hindu. 

  3. The succession of Hindu Joint Family Property, in almost the whole of India except some eastern regions, continues to be governed by ancient religious rules. This is quite a small portion of the Hindu Law of Succession. 

Succession in Hindu Law makes a distinction between two types of Property: (1) Joint Family Property and (2) Self-Acquired Property. In almost all parts of India except portions of the eastern region, the rules of succession governing Joint Family Property, and Self-Acquired Property, are different.  

The Hindu Succession Amendment Act of 2005 has now started giving daughters also succession rights. 

 

The Indian Succession Act, 1925

The Indian Succession Act 1925, is one of the oldest Indian statutes governing succession. It governs intestate succession for Christians, Parsis, and some other religions. 

However, the Indian Succession Act is special for two other reasons. 

  1. It is the uniform law that governs testamentary succession for all religions except Islam. Hence, unless you are a Muslim, the entire process of preparing and executing a will, beginning from you authoring it to your wishes in it being carried out, will be governed by the Indian Succession Act, 1925. 

  2. Even in cases of intestate succession controlled by other religious laws, the Indian Succession Act has a role to play in some respects. For instance, the Act contains the procedure for appointing administrators for your estate. Administrators are responsible for distributing your estate to your legal heirs. Another important function is, succession certificates are issued under the Indian Succession Act. A Succession Certificate issued to a particular person will establish that they are entitled to succeed as a part of your estate.

Intestate Succession or Succession without a WILL: Things you should know
Wills / Trusts

Intestate Succession or Succession without a WILL: Things you should know

Intestate succession means a succession without a will. A will generally dictates how a person plans to transfer his assets or properties after his death to his/her heirs. A person dies intestate when he has not bequeathed his properties according to a will. Succession can either be testate or intestate. 

Meaning of Testate Succession

In some cases, a person leaves behind a Will, which specifies property distribution after their death. In such cases, the Will controls succession.

When succession takes place in this manner, it is known as testamentary succession

Meaning of Intestate Succession

In other cases, a person does not leave behind a will. In such cases, intestate succession law controls succession. Thus, the persons who become entitled to the deceased's properties are the deceased's, legal heirs. In India, the succession law applicable to a deceased's estate depends on their religion. Hindus, Muslims, Christians, Parsis, etc., have different succession laws. When succession takes place in this manner, it is known as intestate succession. 

Intestate Succession under Hindu Law

If the deceased is a Hindu, Hindu Succession law will govern the succession. The Hindu Law of Intestate Succession is in the Hindu Succession Act, 1956. 

Two Types of Property

Under Hindu Law, the property is of two types: 

  1. Joint Family Property: The Hindu Joint Family is an ancient social structure prevailing in Indian society. In Hindu Law, specific properties are considered Joint Family Property. Generally, all property inherited from one's father, paternal grandfather, and paternal great-grandfather are considered Joint Family Property. 

  2. Self-Acquired Property: All other properties are considered the Self-Acquired Property of the respective person. The most unambiguous indication of Self-Acquired Property is that it is acquired with the money of one's efforts.

This distinction is important because, depending on where you reside, different rules govern the succession of Joint Family Property and Self-Acquired Property. 

People Also Read This: How to Inherit Property in India?

The succession of Joint Family Property

Depending on where you reside, you will be governed either by Dayabhaga Law or Mitakshara Law. Generally, Hindus living in West Bengal, Orissa, and parts of Assam, are governed by Mitakshara Law, and Mitakshara Law governs all other Hindus. Both of these refer to old schools of religious Hindu law that prevailed in these respective geographical regions. Once upon a time, these schools of law governed the substantial part of Hindu succession. Today, there are of minimal significance. Legally, its only importance in the present is determining the order of intestate succession.

Section 6 of the Hindu Succession Act governs the Mitakshara Joint Family Property's succession. When a coparcener dies, their share in the Joint Family Property passes to the legal heirs according to the rules contained in this Section. The process is as follows: 

  1. You divide the whole joint family property amongst the deceased and their legal heirs. Usually, the deceased, their wife, their children (both sons and daughters), and their parents get equal shares.

  2. The share the deceased person receives becomes his self-acquired property. This share passes to the deceased's legal heirs according to the rules governing Self-Acquired Property's succession (see below).

The succession of Self-Acquired Property

The rules governing the succession of Self-Acquired Property of the deceased varies based on the gender of the deceased. However, the same rules apply to all Hindus regardless of whether Dayabhaga Law or Mitakshara Law governs them. 

For male Hindus, there are four categories of legal heirs: Class I heirs, Class II heirs, agnates, and cognates. The Schedule of the Hindu Succession Act, 1956 specifies Class I heirs and Class II heirs. An agnate is a person who is (i) neither a Class I heir nor a Class II heir, but (ii) is a descendant of the deceased through a pure male line. A cognate is a person who is (i) neither a Class I heir nor a Class II heir, but (ii) is a descendant of the deceased through a line consisting of both males and females. The order of intestate succession in self-acquired property is as follows:

  1. Class I Heirs: If any Class I heir[s] exist, they get the deceased's whole Self-Acquired Property. If more than one such heir exists, they both get equal shares. The deceased's wife, sons, daughters, and mother are notable Class I heirs. However, the father of the deceased is not a Class I heir. 

  2. Class II Heirs: If not a single Class I heir exists, the whole Self-Acquired Property of the deceased goes to the Class II heirs. The deceased's father, brothers, and sisters are notable Class II heirs. If the father is alive, he takes the whole property. If he isn't alive, then the brothers and sisters take the property in equal shares. 

  3. Agnates: If there are no Class I and Class II heirs, the deceased's agnates take the whole of the Self-Acquired Property. 

  4. Cognates: If there are no Class I and Class II heirs, the deceased's cognates take the whole of the Self-Acquired Property. 

A different set of rules applies to female Hindus. For female Hindus, the order of intestate succession for legal heirs is: (i) sons, daughters, and husband; (ii) heirs of the husband; (iii) parents; (iv) heirs of the father; and (vi) heirs of the mother. Each category is preferred to the later ones, in that order of preference. All heirs of the same class get equal shares of the property. 

People Also Read This: About Inheritance Rights in India


Position of Illegitimate Children

The intestate succession of an illegitimate child is only through his mother. An illegitimate child's share in intestate succession is restricted to his mother and not his father.  

Gift Deed: All you should know.
Wills / Trusts

Gift Deed: All you should know.

You want to gift your near and dear ones some property? You can do so by drafting a gift deed! A gift deed is a legal instrument for transferring moveable and immoveable property. The transfer of property by a gift deed is voluntary and without any consideration. A gift is generally made based on love and affection, for example, the gift of ancestral property by a grandfather to grandchildren. Section 122 of the Transfer of Property Act, 1822 governs a gift deed. Under Section 117 of the Registration Act, it is compulsory to register the same if you gift an immovable property. 

How to Draft a Gift Deed?

A gift deed should include the following information: 

  • Date and place where you will execute the gift deed. 

  • Names of the donor and donee.

  • Address of the donor and donee. 

  • What is the relationship between them?

  • What is the property being gifted?

  • Signatures of two witnesses. 

  • Signatures of the donor and the donee. 

People Also Read This: What is the difference between a conveyance deed and a sale deed?

How to Draft a Gift Deed of Immovable Property?

A Gift Deed is mandatory for a gift of immovable property to be effective. It would help if you keep the following in mind while drafting a gift deed of immovable property:

  1. It should be in writing. 

  2. The donor must sign it. 

  3. Two independent witnesses should attest it. Hence, the witnesses must not be the donor, or the beneficiary, of the gift. 

  4. Stamp duty is payable on gifts of immovable property. The Gift Deed must be executed on stamp paper of the same value as the stamp duty payable. The exact stamp duty payable varies from state to state. It is usually 2-5% of the market value of the property. Some states offer stamp duty concessions for gifts to blood relatives. 

  5. Finally, the duly executed and stamped Gift Deed must be registered with the local Sub-Registrar of Assurances. Some states charge a registration fee, which varies from a few hundred to 1-2% of the property's market value. 

A good Gift Deed of Immovable Property should contain at least the following elements in its content: 

  1. You should describe the property you are gifting. Typically, a statement of the plot number, the locality/street, the local post office, the panchayat or urban authority, the block, the sub-district, the district, the state, and the PIN Code, will be sufficient to identify any property in India uniquely. 

  2. It may be prudent also to specify the boundaries and size of the property and the survey number of the property in the state's land records. These details can be obtained from the land records of the state in which the property is situated. 

  3. A statement of the nature of the donor's title over the property. How the donor acquired title over the property must be mentioned. The best practice is to identify the Deed by which the donor came to be the owner of the property by its registration number, year of execution, and the office where it was registered.   

  4. The fair-market value of the property should be explicitly mentioned. This is necessary to calculate the stamp duty payable on the gift. 

  5. An explicit statement that the transfer of the property has been made, for no consideration and freely and voluntarily. 

  6. A statement of acceptance by the beneficiary of the gift. This is essential because a gift doesn't take effect unless the beneficiary accepts it. 

How to Draft a Gift Deed of Movable Property

A Gift Deed is not mandatory for a gift of movable property. However, you can draft a Gift Deed for gifts of movable property too. If a Gift Deed is executed, it must be executed in exactly the same way as, the process for executing a Gift Deed of Immovable Property as explained above. 

A good Gift Deed of movable Property should contain at least the following elements in its content: 

  1.  Try to identify the property by some unique identification associated with it. For instance, a car can be uniquely identified by its motor vehicle registration details; the machinery can be uniquely identified by its invoice number and supplier details, etc. 

  2. A statement of the nature of the donor's title over the property. 

  3. Mention the fair market value of the property.

  4. An explicit statement that the transfer of the property has been made, for no consideration and freely and voluntarily. 

  5. A statement of acceptance by the beneficiary of the gift. A gift doesn't take effect unless the beneficiary accepts it. 

  6. Date, place, and time of execution.

People Also Read This: Land & Property Registration: All You Need To Know

How to Draft a Gift Deed of Money?

No stamp duty is payable on a gift of money. A Gift Deed of Money is not required to be registered. If the parties wish to, then they can register it, but this is not mandatory. Hence, a Gift Deed of Money can very well be executed on plain paper and signed by the parties. You can also execute it by an exchange of letters between the parties containing a clear offer followed by an unconditional acceptance of that offer. 

A good Gift Deed of Immovable Property should contain at least the following elements in its content: 

  1. The amount of money being gifted

  2. Identify the money being gifted by the currency note numbers, cheque numbers, bank transfer numbers, etc.  

  3. An explicit statement that the transfer has been made for no consideration. 

Documents Required for Registration of Gift Deed

  1. The duly executed, and stamped, Gift Deed must be presented to the office of the local Sub-Registrar of Assurances for registration. 

  2. Some states may require the advocate, or registered deed-writer, who drafted the Gift Deed to affix a declaration, and their registration number, on the Deed. 

  3. A true certified copy of the Gift Deed. This copy will be retained by the registering authority. The Registration Rules of the state in which the Deed is being registered will specify the procedure for making a true certified copy of the Deed. 

  4. Proof of payment of the registration fees payable, if any. 

  5. Identity, and Address, Proofs of all the parties and the attesting witnesses. 

What is the Difference Between A Gift Deed and a Property Sale?

Once a property is transferred to you as a gift, you are its owner. The gifted property can be sold. But, a gift deed is different from a property sale. A property sale involves the payment of some money for the transfer of property. A gift deed is voluntary and without any payment of money. Hence, once you have validly registered the gift deed and are the property owner, you can sell the gifted property for consideration. 

Drafting a gift deed for an immovable property may involve many legal implications, such as tax considerations. Prefer hiring a lawyer to draft a gift deed for immovable property. 

Testamentary Succession: Will it fair and square
Wills / Trusts

Testamentary Succession: Will it fair and square

It is hard to cope up when a loved one passes away, even harder when the deceased is the head of the family. Some plan for succession and create a Will while they are alive. However, many don’t foresee the need and leave it to chance. In such situations, it is tough for the rest of the family members to decide how the property Will be divided amongst and transferred to heirs. Who gets what, when and how remains some uncomfortable questions?

Testamentary Succession is the possible answer. This post shares insights on what does it mean, frequently used terms related to Testamentary succession under The Indian Succession Act 1925, characteristics of a valid Will, importance of having a Will and how Hindu Law governs Testamentary succession.

Meaning of Testamentary Succession:

In simple terms, it is defined as the succession of property by a WILL or TESTAMENT as per applicable rules of law. As per Hindu Law, any male or female can make a Will to transfer his or her property or assets to anyone. The Will is treated as valid and enforceable by law. 

An important point to note here is that the transfer of property happens as per provisions mentioned in the Will and not as per the inheritance law. However, if the Will is invalid or illegal then the transfer or devolution of property happens as per the law of inheritance. Alternatively, Testamentary succession is also referred to as right of inheritance.

People Also Read This: The Law of Inheritance Rights in India

Common Terms related to Testamentary Succession under Hindu Law

It is important to understand the frequently used terms that might sound complicated but are easy to interpret. They are:

  • Will – A legal declaration created by a person expressing clear intention or wish with regards to how his or her property and assets Will be transferred after death.

  • Testator – A person who creates his or her Will.

  • Executor – A person appointed by the Testator for executing the Will.

  • Administrator – A person appointed by the Court for executing the Will.

  • Attestation of Will – It is the process of signing the Will by two witnesses to verify the signatures of the executant.

  • Codicil – A legal document made by Testator and signed by two witnesses for making minor changes in the Will that has already been executed.

  • Probate – It is a documentary evidence of the appointment of the Executor and establishes the validity of the Will.

  • Letter of Administration – A certificate granted by the Court for appointing an Administrator of the Will.

Important Characteristics of a Valid Will

A Testator must consider the following essential characteristics while creating his or her Will:

  • It is a written document expressing the testator's clear intentions or desire with respect to transfer of his or her assets or property.

  • It can be created by any person of age 18 years or above who is capable of entering into an agreement.

  • A person influenced by alcohol or fear or affected by illness or fraud cannot make a Will.

  • The Indian Succession Act, 1925 does not prescribe any specific format of writing a Will.

  • Minor unintentional errors in a Will – error in name spellings or details of property – does not alter the true intention of the testator.

  • The Testator should sign the Will which should be countersigned by two witnesses. In cases where the testator cannot sign, thumb impressions of the testator should be taken.

  • The signature of the testator should appear at the bottom of the page or at the end of the contents of the Will.

  • The witnesses to the Will should not be the beneficiaries themselves.

  • A Will comes into force only after the death of the testator.

  • And finally, it is not mandatory to make the Will document on a stamp paper and register it. The testator can also write it on a plain paper.

People Also Read This: How to Inherit Property in India?

Why is having a Will Important?

Each person wishes that his legal heirs stay a part of the cohesive family even after his or her death and that there are no fights over property matters. After all, fair division of property is a sensitive matter. In today’s times, if it is done properly, it can make long lasting relationships and if done otherwise, it breaks relations forever.

It is for this purpose, making a fair Will comes very handy. The testator must clearly document his or her desires with respect to the assets that his legal heirs would carry out after his or her death. The Will must clearly state how the testator's property Will be transferred, to whom it Will be transferred, how much share of property Will be transferred to different heirs and so on.

Generally, a very common question arises here as to what happens if a person dies without leaving a Will behind? In such cases, the division and transfer of property happens by way of law. This is called intestate succession.

Which law governs Testamentary Succession?

In India, Testamentary succession is governed by The Indian Succession Act 1925 including the intestate succession. Most importantly, this law extends to the whole of India but is only applicable to the Wills and codicils of Hindus, Sikhs, Buddhists and Jains by religion.

Also, for Hindus, the intestate succession and all its exceptions are codified in the Hindu Succession Act, 1956. It does not apply to Muslims, Christians, Parsis and Jews. For example, Muslims are allowed to dispose their property and assets according to Muslim Law.

Conclusion

It is always advisable to write a well thought and a fair Will. In case of any ambiguity or in the absence of a Will, there is a possibility that the legal heirs of the deceased would engage in unwanted ugly legal battles for claiming their rightful share.

Legal Experts at LegalKart can help draft a Will that best suits your requirement. 

Who gets the child’s custody anyway?
Child Custody

Who gets the child’s custody anyway?

It is nerve-wrecking for me to even think about the agony couples suffer while their marriage falls apart. But it pains us so much more to imagine the suffering their child experiences in the process. Yes, you read it right, we are talking about the painful process of getting divorced from your spouse and the struggle thereafter of getting the custody of your child(ren). The whole journey of separation is ugly but settling the matter of child custody is even uglier. While amicable resolution is a possibility, in reality it is farfetched considering the relations between two adults have already turned bitter due to irreconcilable differences and sometimes inflated egos.

This makes us ponder over the first thought that would possibly come in the minds of divorced parents – who gets the child’s custody after separation? There could be reasons for which each parent would want to win the custody of the child after divorce. Division of parental property, financial support for child’s education, good upbringing, safety and maintenance, visit rights, alimony, comfort with the child, right to take decisions with regard to child’s life, etc. are some that we could imagine. They would hire the best child custody lawyer to win the custody and block it for the other parent. However, as per the Indian child custody law, both parents have equal rights over the child even after their legal separation. The custody of the child who is less than 18 years in age only implies, with which parent the child will physically stay. One parent winning the custody does not mean that the other parent seizes to be the parent of the child and loses all rights over the child. The child custody law clearly states that irrespective of their marriage being annulled, they continue to be the natural guardians of the child. In other words, the custodial parent becomes the primary caretaker and the non-custodial parent retains the right to meet the child.

People Also Read This: Child’s wish & will is important in a Child Custody matter: Hon’ble Supreme Court

In most of the cases in India, the custody of the child is granted, by the family court, to one parent and the access of child is granted to both of them. Data clearly shows that out of around 90 cases in a particular year, the custody of the child has been granted to fathers in only 2 cases. What does this signify? Do mothers have an upper hand in the child custody cases in India? No, despite data favouring the mothers, it is not the case. Many-a-times fathers also believe that they can claim the custody once the child attains a particular age. However, this is nothing more than a myth, a disbelief that many continue to live with.

It has been evident in several landmark judgements that the courts have given high importance to the best interest and the ‘right of the child’ compared to the ‘right of a parent’ than anything else while assigning the custody after divorce to a particular parent. However, there may be exceptions or special circumstances that courts consider on case-to-case basis. For example, a) in case a child is less than 5 years old, the custody is usually given to the mother, b) generally father gets the custody of older boys and mother is given the custody of older girls and c) courts also consider the choice of the child who is above the age of 9 years.

Types of Child Custody

It brings us to a point where it becomes imperative to throw light on the types of child custody allowed by Indian law. It can be one of the following kinds:

  • Physical Custody – where the child is handed over to the custodial parent for living and the other parent is allowed to visit, meet and interact with the child at regular intervals.
  • Joint Custody – where child lives with both parents on rotational basis and duration of child’s stay may vary from several days to weeks to months based on mutual agreement between the separated parents.
  • Sole Custody – where the child is handed over entirely to one parent in case the court finds the other parent to be abusive, unstable, offensive or incapable of upbringing the child.
  • Third Party Custody – where a guardian or third person gets the custody of the child from court instead of the biological parents. This is also often termed as non-parental custody.

Child Custody Laws In India

We must also briefly know legal provisions that are applicable. In India, the Guardian and Wards Act 1890 has provisions related to child custody after divorce. At the same time, India is a vast nation with diverse religions and there are corresponding laws to deal with separation and child custody. The legal provisions that exist in the Indian Constitution based on the religion we belong to are:

  • Custody under Hindu Law – which has provisions under the Hindu Marriage Act 1955 (section 26), the Special Marriage Act 1954 (section 38) and the Hindu Minority and Guardianship Act 1956.
  • Custody under Muslim Law – which allows only the mother to seek custody of her child(ren) under the Right of Hizanat.
  • Custody under Christian Law – which allows for child custody under the Divorce Act 1869 (section 41) only after separation decree is granted.
  • Custody under Parsi Law – which allows for child custody under the Guardian and Wards Act 1890 and gives high importance to welfare of the child.

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It is already a nightmare for parents who are beleaguered with separation. Adding to woes, is the complications of getting the custody of their biological child(ren). It is a battle that none would want to lose. Imagine yourself in this situation where you are looking for information on how decisions are taken and judgements granted with respect to child custody after divorce. The best way is to contact a child custody lawyer who not only can guide you in the process but sail you through with bare minimum stress. 

चाइल्ड कस्टडी की मामलों में बच्चे की इच्छा भी बहुत महत्वपूर्ण: सर्वोच्च न्यायलय
Child Custody

चाइल्ड कस्टडी की मामलों में बच्चे की इच्छा भी बहुत महत्वपूर्ण: सर्वोच्च न्यायलय

Case: Smriti Madan Kansagra v Perry Kansagra (Civil Appeal No. 3559/2020)

Section 17(3) of the Guardian & Wards Act 1890

17(3), the preferences and inclinations of the child are of vital importance for determining the issue of custody of the minor child. Section 17(5) further provides that the court shall not appoint or declare any person to be a guardian against his will".

Smriti Madan Kansagra v Perry Kansagra (Civil Appeal No. 3559/2020) केस जहाँ Guardian & Wards Act 1890  की धारा 17(3) को समक्ष रखते हुए माननीय सर्वोच्च न्यायालय ने ये माना की चाइल्ड कस्टडी की मामले में नाबालिग की इच्छा भी सामान रूप से महत्वपूर्ण है तथा उसकी वरीयताओं पर भी विचार किया जाना चाहिए खास कर जब वो एक ऐसे उम्र में हो जहां उसमे अपनी पसंद और नापसंद की बारे में पर्याप्त जानकारी हो तथा वो भी अपनी वरीयता की अनुसार चुनाव करने योग्य हो.

सुप्रीम कोर्ट की तीन जज की बेंच जिसमे न्यायमूर्ति यु यु ललित, न्यायमूर्ति इंदु मल्होत्रा तथा न्यायमूर्ति हेमंत गुप्ता थे उन्होंने एक अत्यंत महत्वपूर्ण फैसले में एक नाबालिग बालक की कस्टडी उसके पिता को प्रदान की जो की नैरोबी, केन्या  में रहते है।

यह क़ानूनी लड़ाई लगभग दस साल चली जिसमे आदित्य (वह नाबालिग बालक जिसकी कस्टडी की लिए ये केस था) की कस्टडी की लिए उसके माता पिता ने परिवार कोर्ट से ले कर सुप्रीम कोर्ट तक ये कठिन कनूनी राह तय की तथा अंततः सुप्रीम कोर्ट ने आदित्य की सम्पूर्ण कस्टडी उसके पिता को प्रदत्त की।

यह जानना भी बेहद रोचक है की इस लम्बी और कठिन क़ानूनी लड़ाई की दौरान माननीय न्यायमूर्ति आदित्य से व्यक्तिगत रूप से अपने चैम्बर में कई बार मिले और यह जानने की कोशिश करी की आदित्य की व्यक्तिगत राय क्या है तथा उसकी वरीयता में उसके माता या पिता में उसकी अधिक नज़दीकी किसके साथ है। इस प्रकार की अनौपचारिक बातचीत से माननीय न्यायमूर्ति संतुष्ट हुए की बालक की समझ और वरीयता में वो अपने पिता से ज्यादा करीब था तथा उसकी इच्छा अपने पिता के साथ रहने की थी।

माननीय सुप्रीम कोर्ट ने अपने फैसले में स्पष्ट तौर Guardian & Wards Act 1890 अधिनियम की धारा १७(३)  का उल्लेख किया तथा स्पष्ट किया की इस केस में बालक की भविष्य का फैसला इस प्रकार से होना चाहिए जो उसके भले के लिए सर्वोपरि हो तथा उसके सभी हितों की सम्पूर्ण रक्षा भी हो।

माननीय सुप्रीम को ने परिवार कोर्ट, हाई कोर्ट के फैसले तथा कौंसिलर की रिपोर्ट को भी बहुत गौर से परखा और पाया की बालक आदित्य ने अपने पिता की अधिक झुकाव दिखाया था। अपने फैसले को अंतिम रूप देते हुए माननीय सर्वोच्च न्यायालय ने बालक की हितों को सर्वोपरि मानते हुए उसकी संगरक्षण की ज़िम्मेदारी उसके पिता को सौंप दी। सुप्रीम कोर्ट का पूरा फैसला यहाँ से पढ़े।:

https://main.sci.gov.in/supremecourt/2020/8161/8161_2020_34_1501_24506_Judgement_28-Oct-2020.pdf

 

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