INDIA Law and Practice Contributed by: Rishabh Shroff, Kunal Savani and Chirag Shah, Cyril Amarchand Mangaldas
rules of succession. An individual who owns self- acquired property has the right to dispose of it as per their wishes. The owner can sell, gift or will away the property to anyone they desire. Portuguese civil law as applicable in the state of Goa recognises the concept of community property where- in both spouses are considered joint owners of the property acquired during the marriage. The Uttarakhand UCC eliminates the distinction between ancestral and self-acquired property as out- lined in Hindu Law, but is silent on the coparcenary rights established by the Hindu Succession Act, 1956. Consequently, the same scheme of succession will apply to both ancestral and self-acquired property for Hindus. Notably, Indian courts are increasingly grappling with the recognition of homemakers’ contributions in prop- erty and succession rights. In 2023, the Madras High Court took a progressive stance, equating a wife’s unpaid domestic work with the economic value of an earning husband, thereby expanding her claim over family property. However, in 2025, the Delhi High Court distinguished this view, ruling that mere residence or household management does not automatically confer ownership rights without proof of substantive contribution. Together, these rulings highlight a grow- ing judicial acknowledgment of homemakers’ value but also underscore the need for legislative reform to establish a clear statutory framework for property rights of non-earning spouses. This reflects a broad- er trend toward gender inclusivity in succession and property law, though still constrained by the absence of nationwide binding precedent. 4.2 Prenuptial and Postnuptial Agreements Unlike other jurisdictions, India does not recognise the concepts of prenuptial and postnuptial agreements as legally tenable. The law considers such contracts against the public policy of India and therefore they are void ab initio under Section 23 of the Indian Contract Act, 1872. However, this position can be qualified sub- ject to the provisions of the personal and customary law applicable to the parties, and courts may enforce a pre- or post-marital agreement. Recently, courts in India have been attributing limited persuasive value to
such agreements, provided that they do not attempt to dictate future separation. Agreements which stick to aspects of asset classification, financial contribu- tion and entitlement may be considered during sepa- ration/divorce proceedings on a case-by-case basis. 5. Tax Treatment of Lifetime Transfers and Testamentary Dispositions 5.1 Lifetime Transfers Under the provisions of the ITA, any transfer of a capi- tal asset under a gift or a will is exempt from capital gains tax. Further, a gift is tax exempted provided it is made to a person who qualifies as a “relative” under the defini- tion provided under the ITA. However, whilst the defi- nition of “relative” is wide and covers most relation- ships, a few relationships, like in the case of gifts from nephew to uncle, are not covered under its definition. Hence, a gift which is not covered under the purview of the definition shall be taxed. For the definition of relatives, see 6.2 Tax and Regulatory Constraints . 5.2 Testamentary Dispositions There is no estate or inheritance tax in India. Further, property received under a gift or will or inheritance is exempt from capital gains tax. Hence, any property whatsoever can be passed down to next generations tax free via a will or even intestacy. India does not undertake revaluation or rebasing of assets that have been inherited. The Indian tax laws allow receivers of such assets to carry forward the period of holding and cost of acquisition from their previous title owner. Thus, the income arising from the transfer of such inherited assets shall be taxable in India in a similar way that of its previous title owner.
6. Lifetime Succession Planning Mechanisms 6.1 Common Planning Techniques
Private trusts are widely recognised, respected and used as an effective tool of succession and ring-fenc- ing of assets in India. India recognises both – private
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