INHERITANCE RIGHTS OF GRANDCHILDREN

INTRODUCTION

Inheritance, also known as succession, is the transfer of property to an heir or heirs after the owner’s passing. Inheritance also refers to the actual property. The procedure is closely regulated by law in contemporary society. The relevant branch of the civil law in the continental European pattern is typically referred to as the law of succession. In this article we will discuss about the inheritance rights of grandchildren.The relevant inheritance law will determine whether or not the grandson has a claim to his grandfather’s possessions. It is significant to remember that India does not have a unified system of inheritance laws.

Depending on the religion, different personal laws apply to succession and inheritance. The kind of property and how it is handled, such as whether it is self-acquired, ancestral, or if a Will is formed for a self-acquired property, determine the grandson’s rights in his grandfather’s property.As we all know that there are two types of property, one is a)self-acquired property and the other is b)ancestral property.According to the Hindu Succession Act of 1956, a person’s self-acquired property includes whatever assets he or she acquires by independent means or through the partition of inherited assets. Similar to self-acquired property, property gained as a legal heir, through a gift deed or “will,” etc., is likewise included in this category. Property obtained by oneself also includes property inherited from a deceased sibling, uncle, etc.Ancestral property is what a Hindu inherits from his father’s father and father’s father. His separate property includes anything other relatives inherit. The key characteristic of ancestral property is that any sons, grandsons, or great grandsons of the person inheriting it become co-owners with him.We will look after the inheritance right of grandchildren in both the cases of self acquired as well as ancestral property.

GRANDCHILDREN’S RIGHT ON SELF ACQUIRED PROPERTY

According to the Hindu Succession Act of 1956, a grandson does not have a birthright in the self-acquired property of his grandfather.If the property is given to his father after partition of the family, he is not the co-owner of the property, he can only get it as a legal heir and is not directly transferred to him after his grandfather dies. Whoever the grandfather wants and selects can inherit the property.Thus, A grandson has no direct right over his grand father’s self acquired property unless the grandfather chooses him to inherit the property.

Section 8 of Hindu Succession Act specifies that if a male hindu dies intestate i.e without making a will then according to the provisions of the section it will be inherited by relatives specifies in Class I of the schedule that is the wife, son and daughter and others as specifies in the schedule.If there is no heir of Class I then it will devolve upon Class II heirs of the schedule. Further if there is no heir in class II then it will get transferred to the agnates[Section 3(1)(a) of the said act specifies that a person is said to be an agnate of another if the two are related by blood or adoption wholly through males]of the deceased, and lastly if there is no agnates it will get transferred to the cognates[Section 3(1)(c) of the said act specifies that a person is said to be a cognate of another if two of them are related to each other by blood or adoption wholly through males] of the deceased. Thus from this section it is clarified that of the grandfather passes away without leaving a will, only his spouse, son(s), and daughter(s) will have the legal right to inherit the assets he left behind. No one else has the right to claim any portion since the properties inherited by the deceased’s wife, son(s), and daughter(s) will be treated as personal property of those who inherit the same.

However if the father of the male dies before the grandfather in that case there is direct right of the son of predeceased son in grandfather’s property.The lawful heir of the grandfather’s predeceased son or daughter will receive the portion that the predeceased son or daughter would have received if they had died before the grandfather. 

But in this case also the grandfather’s grandchild is only eligible to receive a share of the estate of his or her deceased grandfather; if the grandfather is still living, the grandchild is not eligible for a part.

GRANDCHILDREN’S RIGHT ON ANCESTRAL PROPERTY

As said earlier ancestral property is whatever that a Hindu inherits from his father, his father’s father, or his father’s father. Unlike the case in self acquired property, the right to a share in such a property is acquired by birth itself. Per-stirpes, not per-capita, calculations are used to determine the rights to the ancestral property. According to per stripes, A and B will each receive half of the share after a hypothetical division, and their shares will be distributed to their respective offspring in accordance with the applicable intestate succession laws. According to per capita, B will receive the full estate, with no share going to A’s heirs. In order to calculate per capita distribution, the generational line’s surviving heads are counted. A person’s inherited part will go to his heir in Per Stripes. 

In the Per Capita system, heirs are not given any stake.Therefore, each generation’s share is first calculated, and then succeeding generations split what their respective predecessors inherited into smaller portions. According to Section 18 of Hindu Succession Act, If the nature of the relationship is the same in every other way, full blood relatives of an intestate will be given preference over half blood relatives. Under Section 19,If two or more heirs share ownership of an intestate’s property, they must do so (a) as tenants-in-common rather than joint tenants and (b) per capita, unless otherwise expressly specified in this Act. 

Under Section 20, a child who was in the womb at the time of an intestate’s death and is subsequently born alive has the same right to inherit from the intestate as if he or she had been born before the intestate’s death, and the inheritance shall be distributed in accordance with the terms of the intestate’s will.Thus the inheritance right of a child in case of ancestral property comes once a child is born whether it is a male or female.The grandchild has an equal share in the property if it is an inherited one. Along with a plea for emergency relief, he may bring a civil lawsuit for declaration and partition. Legally protected rights cannot be disregarded. The inheritance rights of a grandson are acquired through birth. The right becomes effective the moment the grandson is born; it is not conditional upon his grandfather’s passing. As a result, a grandson has always had an equal part of inherited property. Each share of property is distributed so that it is further divided among next generations.

GRANDCHILDREN’S INHERITANCE RIGHT IN CASES WHERE THE GRANDFATHER MAKES A WILL AND WHERE A GRANDFATHER DIES INTESTATE

1)In case where the grandfather makes a will before passing away. The grandfather’s grandchild will only be eligible to inherit that specific share of his estate, property, assets, or money if the grandfather made it clear in his will before passing away that the grandchild would be a legatee or beneficiary of that share. However, the succession shall be governed by the laws of succession if the grandpa passes away without a valid Will as discussed in above paras.

2)In case where grandfather dies intestate-If the deceased Hindu did not leave a will, the Hindu Succession Act, 1956 governs the succession of the estate.A grandchild can only inherit from their grandfather’s property if the parent through whom they are linked passed away before the grandfather. In these situations, the grandchild and their siblings will each receive a portion of the inheritance that the parent would have received if they were still alive. This portion is split evenly.

Other personal laws

Muslim law does not distinguish between privately acquired property and inherited property. In essence, a grandparent’s will must include their grandkids in order for the grandchildren to receive an inheritance. 

Notably, the provisions of the Indian Succession Act shall apply if there is no personal law for a succession of any particular faith. Christian’s succession was covered by Sections 31 to 49 of the Indian Succession Act. According to the Indian Succession Act, there are three types of heirs: spouses (widows and widowers), lineal descendants (children and grandchildren born out of a valid marriage), and kindred or consanguinity (blood relations through a lawful marriage). 

In contrast to Sections 50 through 56 of the Indian Succession Act, which deal with the succession of Parsis, Section 53 of the Indian Succession Act states that when an intestate passes away and leaves a deceased son behind, the son’s widow and children get a portion of the estate. Therefore, grandchildren have the right to claim a share in the property of the grandpa in specific circumstances in both segments, Christian and Parsi.

Relevant case laws

1)In Fakirappa v. Yellappa, it was determined that as between united sons and a separated grandson, Hindu law gives priority to the united sons for the succession of the self-acquired property bequeathed by the grandfather. In that situation, it appears that the property was purchased before the partition. The succession of the male issue is by right of survivorship to joint estate, and must be limited to sons who are united coparceners. The appellant cannot be included because he is not related to the grandpa and the uncles. Sons who have split from their father and his family are given preference over sons who have remained close to them and their family in the case of a joint succession.

2)The same ruling discussed in the above case law was upheld in Nana Tawker v. Ramachandra Tawker, where it was determined that under Mitakshara law, an undivided son inherits self-earned property when a father passes away, to the exclusion of a divided son, even when the partition occurred after the father obtained the property. Inferentially, this would also apply to any property the father obtained after the split. 

3)In Rajah Ram Narain Singh v. Pertum Singh, it was decided that when passed down to the following generation, self-acquired property becomes joint family property. It was also stated that the person who is the holder of it has no one else to consult regarding the disposal of it but himself so long as it is separate and in the condition of self-acquired property. But the instant it enters the hands of someone in the following generation after leaving his hands through descent, it becomes joint family property—the property of many people who have come to view it as a joint family—the property of a new joint family that has emerged from a new root. And it keeps dropping.

CONCLUSION

The rights of the grandchildren on the property of the grandparents have long been a source of contention. Legislators were forced to establish the inheritance rules for inherited property. According to the relevant succession law, grandchildren have the right to inherit their grandparents’ assets. There is no standardised inheritance law, nevertheless. Religious authority generally governs inheritance laws. Due to the fact that laws governing succession and inheritance vary depending on the religion. As an example, although other religions have their own civil laws for dividing property, Hindus have different prevailing ideas.However be it hindu law or other personal laws the first step is to determine the nature of property.

SOURCES

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