S.S.

JAIN SUBODH LAW COLLEGE

FAMILY LAW

A STUDY OF KINDS OF HEIRS AND THEIR SHARE IN

PROPERTY

Submission To: Submitted By:

Miss Bhavya Gangwal Kushagra Shukla
Assistant professor Sem –6 Sec-A
Family Law Roll No. 38
 CERTIFICATE

This is to certify that KUSHAGRA SHUKLA, student of B.A. LL.B. of S.S. Jain
Subodh Law College, Jaipur has completed his project on “A Study of Kinds of
Heirs And Their Share in Property” under the guidance of Miss Bhavya Gangwal,
Assistant professor, Family Law, S.S. JAIN SUBODH LAW COLLEGE.
This project is an original, independent work to the best of my knowledge and has
not been published anywhere and has been pursued solely for academic interest.
 ACKNOWLEDGEMENT

This project is incomplete without thanking a few people who have been my pillar
of support throughout this work. I owe my gratitude to all those people who have
made this project possible.

I would like to express my deep and sincere gratitude to my teacher Miss Bhavya
Gangwal for her continuous support. She has always been there to listen, guide and
help me and has been constantly monitoring the progress of my work and showed
me the different ways to approach a research problem and also the need to become
persistent to accomplish any mission.

I am also obliged to acknowledge the college administration for providing a

wonderful library which is a storehouse of knowledge and also for providing all the
electronic resources without which no such research could have been possible.

Finally I would like to thank everybody who played a significant role in successful
completion of my dissertation.
 CONTENTS

1. CERTIFICATE

2. ACKNOWLEDGEMENT

3. INTRODUCTION

4. HINDU SUCCESSION LAW

5. PROPERTY UNDER SUCCESSION LAW

6. ISLAMIC INHERITANCE

7. BIBLIOGRAPHY
 INTRODUCTION

What is Heir

An heir is a person who is legally entitled to inherit some or all of the estate of
another person who has died without legal will and testament. If a person dies
intestate, without a valid will, their heir receives property according to the laws of
the state in which the property is probated.

The rules of descent and distribution determine to whom property transfers when a
person dies without a will. The heirs who inherit the property are typically
children, descendants or other close relatives of the decedent. Spouses are usually
not legally considered an heir unless mentioned in a will, as they are entitled to
properties via marital or community property laws.

Breaking down Heir

When there is more than one heir with the same relation to the deceased, such as
two children, they will typically share equally in the estate. For example, if the
father of two children dies intestate and there are no other living relatives, each of
the two children who become heirs to the estate will receive property equal to half
of the estate.

The part of a deceased person's estate that is given to an heir is known as an

inheritance. This can involve cash, stocks, bonds, real estate and other personal
property such as automobiles, furniture and jewelry.

There are many specific types of heir, such an heir apparent, the person supposed
or expected to receive an inheritance; a presumptive heir, someone who'd get an
inheritance unless a child was born to the property owner first; adoptive heir, a
legally adopted child who has the same rights as natural child of the parents; a
collateral heir, a relative who isn't a direct descendant but is a family member1.

Heir versus beneficiary

While heir refers, legally, to a person who receives the property of another person
who has died intestate, the term heir, in common parlance, is often used to describe
those inheriting property as designated by a will.

The proper term for this is a beneficiary – someone who is entitled to property left
by will, trust, insurance policy or some other arrangement. Not all heirs are
beneficiaries, such as the case with an estranged adult child who is intentionally
left out of a will.

Likewise, not all beneficiaries are heirs. For example, a person can designate a
friend or companion to receive property. In this case, the friend is not an heir (he or
she would not be the recipient of property if left intestate because he or she is not a
child or direct relative); however, the friend is a beneficiary as designated through
the deceased person's will or other arrangement. A female heir is often referred to
as an heiress, particularly if the inheritance involves substantial wealth.

1 Info.legalzoom.com
 HINDU SUCCESSION LAW

In the case of males

The property of a Hindu male dying intestate, or without a will, would be given
first to heirs within Class I. If there are no heirs categorized as Class I, the property
will be given to heirs within Class II. If there are no heirs in Class II, the property
will be given to the deceased's agnates or relatives through male lineage. If there
are no agnates or relatives through the male's lineage, then the property is given to
the cognates, or any relative through the lineage of females.

There are two classes of heirs that are delineated by the Act.

Class I heirs are sons, daughters, widows, mothers, sons of a pre-deceased son,
widows of a pre-deceased son, son of a, pre-deceased sons of a predeceased son,
and widows of a pre-deceased son of a predeceased son.

If there is more than one widow, multiple surviving sons or multiples of any of the
other heirs listed above, each shall be granted one share of the deceased's property.
Also if the widow of a pre-deceased son, the widow of a pre-deceased son of a pre-
deceased son or the widow of a brother has remarried, she is not entitled to receive
the inheritance.

Class II heirs are categorized as follows and are given the property of the deceased
in the following order:

1. Father

2. Son's / daughter's son

3. Son's / daughter's daughter

4. Brother

5. Sister
 6. Daughter's / son's son

7. Daughter's / son's daughter

8. Daughter's / daughter's son

9. Daughter's /daughter's daughter

10. Brother's son

11. Sister's son

12. Brother's daughter

In the case of females

Under the Hindu Succession Act, 1956, females are granted ownership of all
property acquired either before or after the signing of the Act, abolishing their
"limited owner" status. However, it was not until the 2005 Amendment that
daughters were allowed equal receipt of property as with sons. This invariably
grants females property rights2.

The property of a Hindu female dying intestate, or without a will, shall devolve in
the following order:

1. upon the sons and daughters (including the children of any pre-
deceased son or daughter) and the husband,

2. upon the heirs of the husband.

3. upon the father and mother

4. upon the heirs of the father, and

5. upon the heirs of the mother.

2 Dr. Paras Diwan

 PROPERTY UNDER HINDU SUCCESSION LAW

When a Hindu male dies intestate, that is without leaving a will, the devolution of
his property upon his heirs is done by the rules specified under the Hindu
Succession Act 1956. An amendment was made to this Act in 2005, prior to which
women did not have right as coparceners on their ancestral property post their
marriage.

In 2017, the Supreme Court reiterated that all assets in a Hindu Undivided Family
(HUF) would be presumed to be joint property belonging to all members equally3.

Yet, the law mentions conditions wherein a person is disqualified from inheriting
the property, or he or she may not be the first preference, as the case may be.

Half-blood

If the nature of the relation is the same in every other aspect, the person who is the
biological child of an intestate is preferred to half-blood - where persons share a
common parent and either the father or the mother might have remarried. That is,
the person who is of a biological descent (born of the previous wife) acquires the
first right over the property.

In case of simultaneous deaths

Inheritance is based on a presumption in cases when two persons have died in

circumstances which makes it uncertain as to which of them survived the other.
Then for all purposes affecting succession to property, it is presumed that the
younger survived the elder until it is proved to be contrary.

3 Investopedia.com
Daughters

According to the amendment, a daughter becomes a coparcener in her own right in

the same manner as a son. However, if the Karta (eldest surviving male member)
of the HUF dies intestate, survived by both sons and daughters, and if his property
includes a dwelling house - may or may not be wholly occupied by either of these
heirs, then the daughter’s right to the property will arise only after the sons choose
to segregate their share. However, she has the right to live in the house till then if
she is unmarried, separated, deserted or a widow.

Remarried widows

The widow of a predeceased son or a widow of a brother cannot inherit the

property if they have remarried by the time the succession takes place.

Crime

Section 25 of the law says that a legal heir is disqualified from inheriting the
property of the person murdered, if he or she is found guilty of murder or abetment
of murder.

Conversion

Converts cannot be disqualified from ancestral or father's acquired property. But,

as per Section 26 of the law, a convert’s descendants and the children born to such
descendants are disqualified from inheriting the property of any of their Hindu
relatives. However, the rule does not apply if they are Hindus at the time when the
succession opens.

Disqualified heir
If a person is disqualified from inheriting the property, as per the law, it is
considered as if the person had expired before the intestate. The father or the
disqualified heir may not inherit his share but his son or class I heirs are entitled to
their share in the property. Thus, distribution of property will take place among
class I heirs in a Hindu Undivided Family per the rules stated.

Note: The law states that “No person shall be disqualified from succeeding to any
property on the ground of any disease, defect or deformity or save as provided in
this Act, on any other ground whatsoever.” In the absence of any legal heir, such
property is transferred to the government.

Anomalies in the Hindu Succession Act (HSA)

Although the HSA is sacrosanct, there could be issues arising due to certain
anomalies in the succession system. The 204th report of the Law Commission was
presented to the Supreme Court judge, Dr Hans Raj Bhardwaj. The motive was to
point out certain problems that could come in the way of succession.

For example, four categories of heirs that were initially Class II heirs, that is, a)
son’s daughter’s daughter b) daughter’s son’s daughter c) daughter’s daughter’s son
and d) daughter’s daughter’s daughter were moved up as Class I heirs. However,
these entries were not deleted from the list of Class II heirs thereby creating
confusion. Also, by this equation, a) son’s daughter’s son and b) daughter’s son’s
son should also find a place among Class I heirs which is presently among Class II
heirs.

This was not all. While the mother was part of Class I heir, quite surprisingly a
father was placed as Class II heirs. The Commission had suggested that both
parents ought to be Class I heirs to avoid the confusion and should take one share
in their son’s (who has died intestate) property.

Thirdly, while ‘mother’ is part of Class I heirs, the entry of ‘father’s widow’, which
again refers to one’s mother is placed among Class II heirs. Could ‘father’s widow’
then refer to a stepmother? This needs to be clarified.
Fourthly, while grandchildren through a predeceased son or daughter are added as
Class I heirs, a brother or a sister finds a mention in Class II heirs among some
remote relations.
 ISLAMIC INHERITANCE

There are 3 main categories of heirs when it comes to Islamic Inheritance. These
are:

1 – Zaawil Furoodh: These are the “obligatory heirs”. They are all the heirs who
have fixed shares prescribed to them.

2 – `Asabaat: These are the “residuaries”. After the zaawil furoodh get their
respective shares, the left over estate (if any) will be given to them.

3 – Zaawil Arhaam: These are relatives through the female line. Although
they do inherit in some cases, right now we will simply refer to them as “non-
heirs”. As far as you are concerned, these relatives are automatically deprived from
inheriting. Insha’Allah, these will be explained at a later, more advanced stage4.

It should be noted that anytime a relative is being talked about, it is from the point
of view of the mayyit (deceased). So “Father” means, “The mayyits father”. Now
lets list the relatives in each category.

Zaawil Furoodh:

1. Father

2. Paternal Grandfather (Father’s father, or higher)

3. Husband

4. Akhyaafi brother

5. Mother

6. Paternal Grandmother (Father’s mother, or higher)

4 Inheritancelawsblog.wordpress.com
 7. Maternal Grandmother (Mother’s mother, or higher)

8. Wife

9. Daughter

10. Granddaughter (through son)

11.Haqeeqi sister

12. Allaati sister

13. Akhyaafi sister

Some important things to note here. An akhyaafi sibling is a half sibling with
which you share the same mother, but different fathers. If your mother was
divorced, then remarried and had a child with her new husband, then that child is
your akhyaafi sibling. An allaati sibling is a half sibling with which you share the
same father, but different mothers. If your father has multiple wives, then any
children he has with other than your birth mother will be your allaati siblings.
Similarly, if your single father remarries, then has a child with his new wife, that
child will be your allaati sibling. A haqeeqi sibling is a sibling with which you
share the same father and same mother. This is your “full” brother/sister.

`Asabaat:

1. Son, or sons son (and lower down the line)

2. Father, or father’s father (and higher)

3. Haqeeqi brother

4. Allaati brother

5. Haqeeqi brothers son (haqeeqi nephew), or his son’s son

 6. Allaati brothers son (allaati nephew), or his son’s son

7. Haqeeqi paternal uncle (your father’s haqeeqi brother)

8. Allaati paternal uncle (your father’s allaati brother)

9. Haqeeqi paternal uncles son, or his sons son (and lower down the line)

10. Allaati paternal uncles son, or his sons son (and lower down the line)

It should be noted that whenever a whole line of relatives is mentioned, the farther
relative will only inherit in the absence of the closer relative. Examples: Grandson
will only inherit in the absence of a son. Haqeeqi brothers sons son (i.e. haqeeqi
nephews son) will only inherit in the absence of the haqeeqi brothers son (haqeeqi
nephew). Paternal grandfather will only inherit in the absence of the father, and
similar with the mother and grandmothers.

Also, note that the father and paternal grandfather are listed in both Zaawil
Furoodh and `Asabaat. Why is this? These two heirs are assigned a specific
fraction of the estate (what that fraction actually is will be discussed later), but
above and beyond that, in certain cases, they will also get the residue (if any)
which remains after the other heirs get there shares. This is in addition to the
specific share they are already assigned. Hence, they are both from among the
zaawil furoodh and `asabaat simultaneously.

Zaawil Arhaam

1. Children of daughter and their descendants

2. Children of sister (whether haqeeqi or allaati or akhyaafi) and their

descendants

3. Children of akhyaafi brother

4. Daughters of haqeeqi brother

 5. Daughters of allaati brother

6. Daughters of haqeeqi paternal uncle

7. Daughters of allaati paternal uncle

8. Daughters of haqeeqi paternal uncle’s son

9. Daughters of allaati paternal uncle’s son

10. Maternal uncle (Mother’s brother, whether haqeeqi or allaati or

akhyaafi) and his descendants

11.Akhyaafi paternal uncle (Father’s akhyaafi brother), and his descendants

12. Paternal aunt (Father’s sister, whether haqeeqi or allaati or akhyaafi )

and her descendants

13. Maternal aunt (Mother’s sister, whether haqeeqi or allaati or akhyaafi)

and her descendants

14. Maternal grandfather – Mother’s Father

15. The Maternal grandfather of the mayyit’s father – Father’s Mother’s

Father

16. The Paternal grandfather of the mayyit’s mother – Mother’s Father’s

Father

17. Mother’s maternal grandfather – Mother’s Mother’s Father

18. Mother’s paternal grandmother – Mother’s Father’s Mother

As mentioned before, the zaawil arhaam will be thought of as non-heirs for now.

Memorize these categories and the relatives in them as best you can, as they will
help you to know who inherits and how he/she inherits. Eventually (as we get more
advanced) you’ll know the members of at least the first two categories off the top
of your head, insha’Allah.
It is important to note that only the sons children are heirs. Sons daughter is zaawil
furoodh, while sons son is an `asbah. The daughters children (whether male or
female) are non-heirs (zaawil arhaam). Also note that all aunts are non-heirs, along
with maternal uncles. Even though a maternal grandfather is a non-heir, the
maternal grandmother is an heir. In fact, both paternal and maternal grandmothers
are from among the zaawil furoodh. These kinds of nuances should be kept in mind
so as not to confuse relatives into the wrong category.

BIBLIOGRAPHY

WEBSITES
Info.legalzoom.com

Investopedia.com

Inheritancelawsblog.wordpress.com

BOOKS
Dr. Paras Diwan