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The Hindu Succession (Amendment) Act, 2005 introduces gender equality, for the first time, in the succession laws in India.
The 2005 Amendment and the judicial decisions thereafter have clarified that a married daughter has a right over the property of her father, which is equal to that of a son.
The effect of the 2005 Amendment can still be circumvented by making a will to deprive the daughters of their rights.
If a father makes a will and dies thereafter, the will can be executed only after probate is obtained by the executor.
On the other hand, if the father dies intestate, the property devolves equally on his sons and daughters, and the doctrine of survivorship does not apply.
The laws governing succession to the property of ancestors are in the nature of personal laws, i.e. they are peculiar to every religion and governed by legislation which is uniquely enacted to cover every aspect of such succession, as per the religious mandates.
It is important to remember, however, that every religion has started with the norms of patriarchy imbibed in them, and has transformed over time to embrace a more gender equal mindset, even if only through the amendments in the legislative enactments enshrining their principles.
The succession and inheritance to the property of the “Hindus” (i.e. Hindus, Buddhists, Jains, Sikhs and persons belonging to any other religion, which is not Christianity, Islam, Judaism and Zoroastrianism) is governed by the Hindu Succession Act, 1956, whereas the succession laws of the Christians, Jews and Parsis are enshrined in the Indian Succession Act, 1925. On the other hand, the Muslims are governed by their personal laws, i.e. derived from the Holy Quran and the Hadith, which are definite in nature but are not scripted.
Most laws in the past either designated no share in the property to a daughter, especially a married daughter. Or if at all, a share which was much less than that designated for a son. Due to this, certain judicial interventions, and thereafter, an amendment came about, especially in the Hindu laws of succession, which grants gender equality in the arena of inheritance.
The legislature took note of the gender inequality rampant in our inheritance laws and transformed the Hindu succession laws in 2005. Before 2005, the Hindu Succession Act enshrined the principles of coparcenary control over the property of Hindu joint family property. To understand this concept, it is essential to understand what a HUF and a coparcenary system are.
A Hindu Undivided Family (HUF) refers to a traditional, patriarchal Hindu joint family, which is recognized under the succession and taxation laws in India, due to its unique formation. A HUF has the following features:
A HUF is formed by at least two linearly related family members, and thus, can continue perpetually, as long as such a structure continues.
A HUF is led by a Karta, who controls all the work of the HUF and is traditionally supposed to be a patriarch. However, this position has since changed, and the Delhi High Court has held that a daughter of a coparcener can also be a Karta.
A HUF has a joint business, headed by the Karta, from which the members of the HUF derive their income. This is a decisive factor for recognizing a HUF under the Income Tax Act, 1961.
The members of the HUF have limited liability, to the extent of their share in the joint family property, but the Karta has unlimited liability.
A HUF has a certain amount of shared and common property, although the members of the HUF can hold other property personally as well. This common property was traditionally inherited according to the rules of survivorship, but the same can be divested through a will as well.
In a HUF, every male member was traditionally considered to be born with a right to the property of the HUF. This principle has been made gender equal by the 2005 amendment.
Any person born into a HUF, or adopted into the family, becomes a coparcener and is entitled to an equal share in the common property as well as subjected to equal liabilities with respect to the common property, as a matter of principle. Traditionally, only a male member could be a coparcener, and, therefore, the birthright to the HUF property was available only to the sons of coparceners. However, the Hindu Succession (Amendment) Act, 2005 amended the principal Act so as to allow a daughter to be a coparcener to the property of her father if the father passed away after the coming into force of the amendment.
Contrary to the concept before 2005 that daughters cannot have a share in the father’s property, if she is married, the Amendment provides for the following:
The daughter of a Hindu coparcener will be a coparcener by birth, even if she was born before the Amendment.
The daughters and sons of a coparcener will have the same and equal rights and liabilities, in relation to the coparcenary property.
Any property so inherited by a daughter can be disposed of as per her testamentary dispositions alone.
After the death of a Hindu coparcener, after the date of enforcement of the Amendment, the sons and daughters of the coparcener will be entitled to the same share in the coparcenary property.
Thus, since the daughter is a coparcener and has a birthright to the property of her father, the same cannot be taken away merely because she gets married. Thus, the Amendment made sure that even a married daughter would have an equal share in her father’s property.
Now that we have determined that a married daughter has an equal right to the property of her father; as a son, it is essential to understand the means through which a will, if made by the deceased father, has to be executed, and in case the father dies intestate, how a succession certificate can be obtained by any of his/her legal heirs. It is no surprise that the daughters of a coparcener can be deprived of her property rights through the last will and testament of the coparcener.
However, in the case of intestate succession, a succession certificate may be granted to a daughter or a son of the coparcener, and the doctrine of survivorship does not apply, as the estate is equally divided between the sons and daughters (married or unmarried) of the coparcener.
Probate refers to a document issued under the seal of a court of law and is the official evidence of an executor’s authority to dispose of the property according to the will of the deceased. Section 2(f) of the Indian Succession Act, 1925 defines probate as
The copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator.
A person who has been nominated by a testator to act as the executor of his/her will must obtain a grant of probate before he/she can take any steps which require the formal proof of his/her authority over such property. Thus, while the will appoints the person as an executor, the probate certifies the validity of the will and his appointment, thereby certifying his authority.
Any person who has the legal capacity to make a will can be appointed as an executor. Thus, a minor, a person of unsound mind or an association of individuals (not having a separate legal entity) cannot be appointed as an executor.
The executor can apply for probate after seven days of the death of the testator or the person who made the will, and it is issued with reference to Section 213 of the Indian Succession Act. The probate is granted to the executor by the High Court, with a copy of the will attached to it.
When applying for the grant of probate, documents which provide proof of the following are required:
The will is genuine and is the last will made by the testator.
The proof of death of the testator.
The will is validly executed in the clear conscience of the testator.
Once the application is submitted, it will be verified by the judge and notifications will be sent to the relatives of the deceased, informing them about the probate proceedings. A general notice is also published for the convenience of the public, giving them an opportunity for raising any objections to the grant of probate. The probate is granted only if no objections are received from any kind or the general public, or if the objections are found to be unsustainable, and is completed after the payment of court fees, which are dependent on the value of the immovable property involved in the probate.
Although probate is generally granted for the entire will or a whole codicil to the will found subsequently, probate may be granted for special purposes, for which a certain executor was appointed, or with some exceptions to the right of disposal of property and of dealing with the estate of the deceased. In such cases, the probate for the remaining will or estate of the deceased may be given to another executor or any other person entitled to take a grant of probate.
A succession certificate is a certificate granted by a court of law to the legal heirs of a person dying intestate, leaving behind certain debts and securities. It is given to the successor of a deceased person who has not prepared a will, in order to establish the authenticity of the successor and also to give the certificate holder an authority over the deceased person’s debts and securities.
It entitles the holder to service the debt or transfer the securities of the deceased person to the holder of the certificate, without having to ascertain the legal heir entitled to the same.
The rights of the petitioner
Grant of Succession Certificate
The procedure for the grant of a succession certificate is given under Section 373 of the Indian Succession Act, and can be broken down into the following steps:
On consideration of the changes that have come around in the legislative framework, it is evident that India is on a march towards gender equality and is ready to amend the personal laws of different religions in order to achieve that end. However, if the ground realities are looked at, women are still deprived of their right to their father’s property through the making of wills, due to the unchanged regressive mindset of the Indian society.
Thus, the loophole of making a will to dispose of one’s property as one wishes is being misused by the testators to negate the effect of the much needed 2005 Amendment.
In my opinion, although the 2005 Amendment was a step in the right direction, it changes the legal framework but not the patriarchal mindset of the Indians, and as long as that is not transformed through education and awareness about gender equality, it will be impossible to achieve the ends which the Parliament envisaged.
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