Authored By: Tejasvi Gour
Des Shri Navalmal Firodia Law College, Pune
INTRODUCTION
Transgender is a community whose needs are overlooked in most cases despite having a population of 4.88 lakhs according to the 2011 census. This community is considered as a part of a broader populace namely known as LGBTQIA+ where the “T” stands for the transgender.
Now the question is why only the transgender face the problems relating to the legal issues. It’s because every other individual in the LGBTQIA+ falls under the biological binary genders, unlike transgender who fit into none of them.
Various laws in India only focus on the binary notion, leaving individuals like transgender people on the sideline and one such area includes the succession or inheritance laws of India.
EVOLUTION OF THE PERCEPTION OF TRANSGENDER PERSON IN INDIA
The community of transgender have shown their existence from a very ancient time in Indian history and mythology.
The word “transgender” is derived from the Latin term “trans” which means across and the term “genus” which means gender.
People do have a lot of misconception regarding the transgender people as to what makes a person a transgender, transgender are the humans who feel that their gender doesn’t belong to their assigned biological body. Hence they undergo various surgeries to look like another gender therefore, termed as transgender man or transgender woman. Another type of people who have genetic disorders like klien felter’s syndrome are also termed as transgender people. In such a syndrome people have either extra X or Y chromosomes in their body giving rise various complications and disabilities in both looks and body.
The historical background of transgender persons was marked by various Vedic and Puranic Hindu scriptures like Ramayana and Mahabharata. At the time of Mughal rule, these people were part of royalty and were provided with all the civil rights but still, the inheritance rights of this community were not in existence. After the arrival of the British in India, the civil rights of this community were abolished and were discriminated against based on socio-cultural values.[1]
India, despite being a rich value-ethical country whose history had huge significance for the transgender community, for instance, Sanskrit, the most ancient language of India was itself divided into three forms- Puling which means masculine, Striling which means feminine, and Napunsakling which means gender-neutral. But still, the rights of this community in India are overlooked and they have to struggle for their basic civil rights among which one of the problems is of succession laws of India.
TRANSGENDER COMMUNITY AND THEIR LEGAL RIGHTS
As time passed by, the Indian law became more inclusive of transgender persons as was seen in the landmark case of NALSA v. Union of India, AIR 2014 SC 1863, where the Supreme Court recognized the non-binary gender i.e. the “third gender”. The Supreme Court also ordered the government of India to make schemes inclusive of every individual i.e. inclusive of non-binary people as well as directed to safeguard their fundamental rights and to make laws specifically for protecting their interest and identity. This landmark judgment was the one that led to the inclusion of “other” as the gender option in various legal documents and other identity forms.[2]
Eventually, the Transgender Persons (Protection of Rights) Act 2019 was introduced which prohibited discrimination against transgender people in terms of their right to education, residence, employment and purchase of property and also safeguarded their various other legal rights.
ARE SUCCESSION ACTS INCLUSIVE OF THIRD GENDER
Indian Succession Act, 1925
The term “succession” is defined as the transmission of the property or obligations of the deceased related to transmissible rights. According to this act the property can be transferred in two ways: A) Testamentary Succession in which the property is transferred according to the will of the deceased. B) Intestate Succession in which the deceased died intestate i.e. without executing any will or deeds.[3]
The property can be devolved either by will or by the operation of law. Every succession law defines the transmission of property if the person dies without making any will. It defines the distribution of property among legal heirs.[4] These legal heirs include only binary genders like mother, father, daughter, wife, husband, and son which makes no room for the third gender i.e. non binary gender for the inheritance of the property. Although the Indian Succession Act has the usage of gender-neutral terms like lineal descendants the inclusion of transgender is not explicitly specified. This means even if the transgender people are the legal heir of the so-called property they would be denied to hold those property as the act does not define the specific term for transgender people.
Hindu Succession Act, 1956
The Hindu Succession Act, 1956 governs the distribution of property of all Hindus which also includes Buddhists, Sikhs, and Jains. The act defines devolution based on agnates and cognates rights based on the binary notion of gender.
Here, the ‘agnate’ refers to when two people are related either by birth or adoption wholly through males whereas, ‘cognate’ refers to when two people are related either by birth or adoption but not wholly through males. [5]
The act defines the term ‘heir’ which is either male or female but does not conceive of transgender or persons who have changed their sex. It defines the rights of the son and daughter in acquiring the property. But mostly transgender people have to identify themselves as the gender assigned to them at the time of birth or usually, they recognize themselves as female which is a violation of Article 15[6] of the constitution based on sex.[7]
Overall, the act is gender neutral as it also describes the grounds for disqualification in sections 24 and 26[8] of the act where being transgender is not a ground for disqualification.
Muslim Personal Law (Shariat) Application Act
Muslim Personal Law consists of rules written in their holy book Quran. Their inheritance laws are mostly in favour of males. It is divided into two parts i.e. Shia and Sunni which also indicates that the subject matter of Muslim Law is based on male and female. Under this law, females are given one-third part due to their less responsibility than men. Therefore it is a gender restricted law where transgender people are less likely to be considered for the transmission of the property.[9]
But unlike Hindus and Muslims, Christian property rights under Indian Succession have broader scope as it specifically includes transgender under Section 44 of the act which makes transgender as the subject matter for the inheritance of the property.[10]
CONCLUSION
Despite being the most marginalized community, the number of reforms is still less. But there is still a ray of hope as the government is being more inclusive of other identities and is granting them the recognition they deserve through various legal mechanisms. In the meantime, we can just wait and hope that the judiciary will soon review and come up with solutions for safeguarding civil rights like inheritance, marriage, education etc. for the transgender community.
Reference(S):
[1] Akansha Jain, Ankita Manchanda, ‘Inheritance rights of Transgender People: A Grey area in the Personal Laws’ (Law times journal, 8 October, 2021) < ‘Inheritanc https://lawtimesjournal.in/inheritance-rights-of-indian-transgender-people-a-grey-area-in-the-personal-laws/ e Rights of Indian Transgender People’ (lawtimesjournal.in)> accessed on 4 August, 2026
[2] NALSA v. Union of India, AIR 2014 SC 1863
[3] Chapter II, The Indian Succession Act, 1925
[4] Adv Hemant More, ‘Introduction to Indian Succession Act, 1925’ (The Legal Quotient, 18 August 2022) < The Indian Succession Act: Historical background and features (thelegalquotient.chttps://thelegalquotient.com/family-laws/indian-succession-act/indian-succession-act/110/om) > accessed on 5 August 2026
[5] Section 3(a), Section 3(c), The Hindu Succession Act, 1956
[6]Article 15, Part III, The Indian Constitution
[7] Gyaneshwar Joshi, ‘Status of Inheritance rights of Transgender under Indian Law’ (16 October 2021) < https://blog.ipleaders.in/status-inheritance-rights-transgenders-under-indian-law/ > accessed on 5 August,2026
[8] Section 24, Section 26 ,The Hindu Succession Act, 1956
[9] Section 2, The Muslim Personal Law (Shariat) Application Act, 1937
[10] Ankita Manchanda, ‘Inheritance rights of Transgender People: A Grey Area In Personal Laws’ (Law times journal, 8 October, 2021) < ‘Inheritanc https://lawtimesjournal.in/inheritance-rights-of-indian-transgender-people-a-grey-area-in-the-personal-laws/ e Rights of Indian Transgender People’ (lawtimesjournal.in)> accessed on 5 August 2026
