The legal discourse has been provided to HalfSamosa by Mr. Pradeep Ghose, Retired Senior Advocate who practiced in Patna High Court, Jharkhand High Court and Supreme Court of India.
Most people are laymen when it comes to the laws of the country. It is our duty to be aware of these laws so that we lead responsible and hassle-free lives.
A Will is the disposal of the property as per the desire of the deceased person. Whether a person dies with or without a Will in India, certain laws have been described for the heirs succeeding the property as per the Indian Succession Act, 1956. There are many sub sections in the Act such as the Hindu Succession Act, Muslim Succession Act, Widow Succession Act etc.
All Hindus in India follow inheritance rules as per the Hindu Succession Act, 1956. In that Act, it has been described if any person dies intestate (without a Will), the Succession Act will apply wherein it has been provided that in the schedule of that there is a List. Example – Successors Class I, Class II, Class III etc. If all Class I successors are alive, no Class II or Class III would receive property. In Class I successor, generally comes wife, son, daughter, mother, wife and children of predeceased son, children of predeceased daughter etc. However father comes as Class II heir.
If any person before his death wants to dispose his property after his death not according to the Succession Act, then he has to make a testimony describing the distribution of his property after his death; not according to the Act but according to his desire. In that case if testator (maker of the Will) drafts a Will in his hand, then it will be called holograph and it is the most authentic Will. Otherwise, the testator can also go to a legal practitioner and it can be printed or typed. In all these cases, two witnesses are necessary who have to attest the Will giving statement that the Will has been made by the testator in their presence as the testator’s free-will without any pressure or fear.
If any soldier in war field drafts a Will, it may not need any witness. This is called a privileged Will. Oral will is also accepted if parties agree without any dispute.
Murderers of the owner of the property are disqualified from inheritance.
Rules of succession for a Hindu in India
There are two Schools of Law that are followed by Hindus – Dayabhaga and Mitakshara.
Dayabhaga School of Law depends upon the principle that if any person succeeds a property, he would be the absolute owner. No other succession like wife, son or daughter will have any right to claim any part of the property. The rule was first started by Manu, the earliest lawmaker in India, to hold on to the family. Dayabhaga rule is applicable to the Bengalis in India.
So far as the Mitakshara School of Law is concerned, any succeeded property by any person, cannot be owned absolutely by that person. Son or daughter can claim the share of the property during his lifetime.