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Hindu Succession

The Hindu law on Succession was very complicated to begin, with. Different parts of the

country subscribed to the views held out by different schools of Hindu Law. For example

while the Dayabagha law prevailed in Assam and West Bengal, the Aliyasanthana law

pervailed in Kerala. The rest of the country more or less subscribed to the views of theMitakshara school.

With different parts of the country subscribing to the views of different schools of Hindu

Law the situation was rather fluid and the administration of law of Hindu Succession was

rather uncertain. In this background, the Legislature or the law makers of the country thoughtit fit to codify the law relating to Succession among Hindus which culminated in the passing of

Hindu Succession Act in 1956. It is important to remember that the Hindu Succession Act

deals only with intestate succession which means succession to the property of an Hindu maleor female who has not made a Will. If a Hindu male or female has in fact made a Will, the

provisions of the Indian Succession Act, 1925 take over. It therefore follows that if a Hindu

male or female has made a Will but has not dealt with his/her entire property in the Will, theproperty not so dealt will be subjected to the provisions of Hindu Succession Act with the

Indian Succession Act governing the properties taken care of in the Will.

The main intention of the Legislature or the law makers of our country in passing the Act

was of two fold :-

a. to bring about uniformity in Hindu intestate succession all over the country

b. to bring about parity between males and females in regard to he right to property in

intestate succession.

With the passing of the Hindu Succession Act, 1956, the law of Hindu succession isgoverned by the provisions of the Act and not by the dictates of different schools of Hindulaw.

Muslim Succession

Muslim Law is founded upon Al-Quoran which is believed by Muslims to have existed frometernity. The Quoran is effectively the relevations of God which were made to Prophet

Mohamad at different times. The Quoran besides being the holy book for Muslims, also

contains references to law which forms the basis of Sharaa. However, Quoran is not a legal

text as such and wherever the Quoran is silent on aspects of law recourse is taken to the Sunnatand the Hadis which are respectively the acts and approvals of the Prophet and his sayings

respectively.

Muslim Law is therefore a combination of relevations from God i.e., the Quoran as alsothe sayings and actions of the Prophet in the form of the Hadis and the Sunnat.

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Muslims can be broadly divided into three sects :-

1. The followers of the Sunni School which would include the Hanifis, Malikis, Shafis andAmbalis.

2. The Shias which include within their fold the Ismailyas, Zaidyas and Imamias.

The Ismailyas in turn include Khojas and Bohras.

The Imamias include Akhabari and Usuli.

3. Motazila

The Muslim Law of Succession varies from sect to sect.

Adoptions-Hindus

The ancient Hindu law of adoption was mainly based on the religious belief that a son was

absolutely essential not so much for the material welfare of man as for his spiritual salvation.

However, with the passing of the Hindu Adoptions and Maintenance Act, 1956, the law ofadoption applicable to Hindus has undergone a radical change. Under the present law, the

religious motive underlying adoption is completely superseded. Unlike the ancient Hindu law,

the Act now allows not only an adult person, married or unmarried, to adopt a child (a boy or agirl), and also allows an adult woman (unmarried, widowed or divorcee) a right to adopt a

child to herself. The broad areas where the Act has changed the customary law of adoption are

in the matters of

the capacity to adopt;

the capacity to be adopted

the capacity to give in adoption, and

the effect of adoption.

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Intercountry Adoption

If it is not possible to find suitable adoptive parents for the child within India, the childmay be given in adoption to parents outside India. This is known as inter-country

adoption. The guide lines for inter country adoption has been laid down by the SupremeCourt of India.

Wills

A Will or a Wasiat', as it is normally referred to in the Indian sub-continent is a legal

declaration made in writing by a person which clearly sets out the manner in which s/hewould like his or her property (movable and immovable), where ever situated, to be

distributed after his death. The Maker of the Will is called the Testator in law. A Will istherefore, a document which comes into effect the moment the Maker dies. A Will lies

dormant so long as its Maker is alive. A Will can be altered as many times as the Maker

wants.

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Transfer of Property

Transfer of property between two living persons in India is mainly governed by the Transfer

of Property Act 1882. The Act refers to certain kinds of transfer of property, such as sale ofproperty, lease or renting of property, mortgage of property, gifting property and

exchange of property. Apart from these, there are certain other transactions which

resemble transfer of property, though they do not actually amount to a transfer, such aspartition, availing paying guest accommodation, creation of a charge etc. Also closelyconnected with transfer of property are the concepts of registration and payment of stamp

duty and drafting of deeds' . Property transactions generally involve huge amounts ofmoney and so, it is advisable to know the relevant laws and procedures and take proper

precautions. If you are not sure about where you stand, don't hesitate to ask us or consulta lawyer.

Sale/Purchase of property

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Sale is an absolute transfer of ownership with all rights in the property, for a price. Once

the sale is completed, you get all rights of ownership, possession etc. over the property.The seller cannot claim any rights over your property after the sale.

Procedure :Every sale of property above the value of Rs.100/- (i.e. practically every sale)

has to be in writing and compulsorily registered. The registration takes place in the officeof the Registrar within whose jurisdiction [the area over which the Registrar exerciseshis/her authority] the property is situated.

Procedure : Stamp duty has to be paid depending on the value of the property [Each statehas a law which prescribes the value of the stamp paper required for a particular

deal/transaction. The state government fixes the market value of properties in differentareas depending on the location and, demand etc. Stamp duty cannot be calculated for a

value lesser than this fixed value]. The sale is complete upon registration.

Seller's Questions

As a seller, you have to ensure that

you get the price of the property, and

you transfer the property completely to the buyer, without giving any opportunity

for him to drag you to the court later.

Your rights and obligations have been listed in the Transfer of Property Act, but the buyer and

you are free to determine between yourselves your rights and obligations.

Buyer's Questions

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As a buyer of property, you should ensure that you get complete rights over the property.

For this, you should verify whether your seller has complete rights in the first place,because he cannot sell you something that he does not have. You should be aware of your

rights and the safeguards that you should take, in order to avoid legal complications infuture.

Your rights and obligations have been listed in the Transfer of Property Act, but the seller andyou are free to determine between yourselves your rights and obligations.

Mortgage

A mortgage is a transfer of an interest in immovable property as security for a loan. There

are different kinds of mortgages some of these are listed in the Transfer of Property Act andsome have evolved over practice.

Procedure : Most, but not all, kinds of mortgage require a written instrument and

registration. Once a mortgage is created, it flows along with the property, even if you sellor gift the property to anyone else.

A gift is a voluntary transfer of your property to another person without payment of any

price, out of natural love and affection.

Procedure : A gift should be accepted by the person to whom it is made.

Renting/Lease

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Renting a property involves transfer of the right to possess and enjoy the property, inreturn for a monetary consideration and for a certain period. Legally, this is called a

lease'. A lease does not come to an end with the death of any one of the parties, butpasses on to the legal heirs of the deceased party if payment of rent is continued.

How Do I Rent/Lease

Before entering into property transactions, you should know the procedure and

precautions by which you can safeguard your rights.

Rights And Duties Of Landlords & Tenants

The rights and duties of landlords and tenants are laid out in a general manner in the

Transfer of Property Act. But you are free to fix the terms of the tenancy in an agreementbetween you and the other party. If your state has a rent control law, these rights and

duties may be changed or increased by that law. Hence the exact right/duty of a

landlord/tenant in a particular situation can be determined by looking into all these threefactors.

Rent Control Laws

In order to prevent exploitation of tenants, various states in India have passed Rent ControlActs. These Acts have substantially added to the rights and obligations of landlords and

tenants. But have also given rise to a lot of litigation.These Acts seek to

Control the amount charged as rent,

Lay down the rights and obligations of landlords and tenants, and

List out the reasons for which a landlord can ask a tenant to leave, i.e. the grounds

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