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This article is written by Tripti Gupta pursuing Certificate Course in Real Estate Laws from LawSikho.

Table of Contents

Introduction 

The law of succession is the law governing the devolution of property (transfer of property from the owner of the property to his legal successors because of his death). The laws dealing with inheritance in India are not uniform. Diversity of laws are involved and their application depends on multiple factors like the religion of the tribe or the domicile of the parties; communities or sects in the communities to which they belong, marital status of the parties, and also the religion of the spouse. Succession can be classified into Intestate succession and Testamentary succession. 

This article has been written to acquaint a common man with some important concepts and succession rules for Christians, Jews, and Parsis. It will give an overview of the legal provisions and basic principles related to testamentary and intestate succession across these religions. It will also briefly analyse the provisions and point out the loopholes.

Testamentary succession 

Testamentary succession or disposition by wills refers to a case when the deceased leaves behind a will and the devolution of property take place as per his wishes expressed in his will. 

Intestate succession  

Intestate succession refers to a case when the deceased person has passed away (a) leaving behind the property for which he has not left succession plan i.e. a will (b) if the bequest of property is for illegal or immoral purposes (Section 127 of the Indian Succession Act, 1925). In such instances, the devolution of property of the deceased happens as per the laws applicable to the succession of the property of the deceased which in India depends upon the religion followed by the deceased at the time of death. 

Intestate and testamentary succession across religions

Before the advent of British rule in India, major laws of inheritance either had their roots in religion or were deeply influenced by Personal Laws which owed their emergence to customs and religion. It was only after the enactment of the Indian Succession Act, 1865 which was later replaced by the Indian Succession Act, 1925 that many communities (Christians, Jews, and Parsis)  in India started being governed by codified laws.

  • For Hindus, Jains, Buddhists, and Sikhs 

For intestate succession, the devolution of property happens according to the scheme laid down under Chapter III of the Hindu Succession Act, 1956. For testamentary disposition, provisions of Part VI of the Indian Succession Act, 1925 are applicable. 

  • For Christians and Jews

For intestate succession, the provisions under Sections 31 to 49 of the Indian Succession Act, 1925 are applicable. For testamentary disposition, provisions of Part VI of the Indian Succession Act, 1925 are applicable.

  • For Parsis

For intestate succession, the provisions under Sections 50 to 56 of the Indian Succession Act, 1925 are applicable. For testamentary disposition, provisions of Part VI of the Indian Succession Act, 1925 are applicable.

  • For Muslims

The Muslim Personal Law (Shariat) Application Act, 1937 is applicable for intestate succession. However, for testamentary succession Muslim law states that a will shall be valid for only 1/3rd property of the deceased if it is not given formal consent by all the heirs of the deceased. 

  • For marriages registered under the provisions of the Special Marriage Act, 1954 

The laws for succession to the property for a person whose marriage is registered under this Act, are governed by the Indian Succession Act, 1925 unless both of them are Hindus.

Important concepts of testamentary succession

The Indian Succession Act, 1925 is identically applicable for Testamentary succession across all religions (Hindus, Sikhs, Jains, Buddhists, Christians, Jews, and Parsis), other than Muslims. Therefore, rules regarding the construction of wills, the validity of wills, concepts of capacity and restrictions, clauses for revocation and revival of will, and many more important concepts are elaborately defined in Part VI under Sections 57 to 391 of the Indian Succession Act, 1925. Some important concepts of Testamentary succession are stated below.

1. Persons capable of making wills

Section 59 of the Indian Succession Act, 1925 states that a person who is of sound mind and is not a minor can transfer his property by will. A blind, deaf or dumb person or a married woman is not incapacitated from making a will if they know the consequences of it. Thus, only people devoid of making the will, are the people who are of unsound mind or in an improper state of mind due to intoxication, illness, etc. 

2. Testamentary guardian

Section 60 of the Indian Succession Act, 1925 states that a guardian or guardians can be appointed by will by a father for his minor child. 

3. Revocation of will by testator’s marriage 

Section 69 of the Indian Succession Act, 1925 states that all kinds of wills that were made before one’s marriage, stand revoked by the marriage of the testator.

4. Probate of will

Probate’ means a copy of a will certified by the court granting the administration of the property of the testator. In case of Parsi dying after the commencement of the Act, probate is mandatory, if the will is made or the immovable property to be devolved under the will is situated within the jurisdiction of three presidencies; Calcutta, Madras, and  Bombay. On the other hand, a Christian does not need to obtain Probate for his will. The will alone would suffice.

5. Privileged and unprivileged wills

Every testator (who is not a soldier, mariner, or airman) can execute an unprivileged will by fulfilling some essential conditions of Section 63 of the Indian Succession Act,1925, which are :

  • Every will must be signed by the testator or his mark should be affixed to the will, or the testator can get it signed by some other person in his presence and by his direction.
  • The testator’s signature or mark, or the signature of the person signing for him, shall appear intentional. 
  • The will must be signed/attested by at least two witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person signing the will for the testator. All the witnesses shall sign the will in the presence of the testator. However, the presence of all the witnesses at the same time is not mandatory. Also, no particular format of attestation is required.

A privileged will, on the other hand, is made by a soldier engaged in warfare or expedition, or, an airman, or a mariner at sea. These wills are made under Section 66 of the Indian Succession Act, 1925, the was and can be either oral or in writing. The will must be handwritten by the testator himself. Though the testator needs to sign the privileged will, it does not need to be attested. 

6. Bequeath of property to religious or charitable causes 

Section 118 of the Succession Act, 1925 (applies to Christians and not Parsis) states that a person having a nephew or niece or nearer relative can bequeath his property to religious or charitable causes only if he fulfills two conditions:

  • Such a will has been executed at least twelve months before his death.
  • Such a will has been deposited within six months from its execution in the safe custody of wills of living persons, provided by law. 

However, in the case of John Vallamattom v. Union of India, (2003) 6 SCC 611, Supreme Court declared Section 118 as invalid and unconstitutional as it was discriminatory and violative of Articles 14,15, 25, and 26 of the Constitution

As a consequence, Christians and Parsis can bequeath their property to charity without fulfilling the above conditions. 

Intestate Succession under Indian Succession Act, 1925 for Christians and Jews

Before the enactment of the Indian Succession Act, 1865 which was later replaced by the Indian Succession Act, 1925, the Jews were regulated by their customary practices in matters of inheritance and succession. They were governed by the ‘Pentateuch’ (religious text of Jews) and by the conciliation committees formed by the Jews in their settlements. 

Similarly, Christians living in mofussil areas (rural districts) were governed by their customary laws while those living in the provincial area were governed by British Laws. 

The rules of succession among the Christians have been codified under the Indian Succession Act,1925.  Cochin Christian Succession Act, 1921 and the Travancore Christian Succession Act, 1916 were revoked and now the Christians follow the provisions of inheritance under the Indian Succession Act, 1925.

Portuguese Civil Court 1867 governs the Christians in the State of Goa and the Union Territories of Daman and Diu, whereas the governing laws for Christians in Pondicherry are French Civil Court 1804, Customary Hindu Law, or Indian Succession Act. On the other hand, customary practices are also influencing the principles of succession. Customary laws of inheritance govern the inheritance for Protestant and Tamil Christians (residing in certain talukas) to date.  Further, the Garos of Meghalaya still follow their customary matrilineal system of inheritance and not the provisions of the Succession Act.

Who is an ‘Indian Christian’?

  • Section 2(d) of the Indian Succession Act defines an ‘Indian Christian’ as a native of India who claims to be of unmixed Asiatic descent and who practices any form of Christianity.
  • The definition of ‘Indian Christian’ was clarified in the case of Abraham v. Abraham wherein a Tamil liquor vendor died without any will and the judiciary had to decide whether his brother or his Anglo-Indian wife would inherit the property of the deceased. This case highlighted that a Hindu who has converted to Christianity shall not be governed by Hindu laws of Succession anymore and any forceful exercise of Hindu laws on him shall stand void. However, he was given an option to permit the old law to be exercised on him, despite the religious conversion. 

In the case of testamentary succession for Christians and Jews, where there is a will executed by the deceased, the general provisions under Sections 57 to 391 of the Indian Succession Act, 1925 apply. 

However, intestate succession for Christians and Jews is governed by the provisions laid down in Chapter II, Part V under Sections 31 to 49 of the Indian Succession Act, 1925. 

This Act recognizes three types of heirs:

  1. Spouse (widow/widower)
  2. Lineal Descendants (Section 25 of the Act defines lineal descendants as a descendant born out of a lawful marriage, in a direct line e.g. children, grandchildren)
  3. Kindred or consanguinity (Section 24 of the Act defines kindred as blood relations through a lawful marriage, in a direct line.)

Kindred of an intestate can be divided into three categories as; a) descendants- children, grandchildren; b) ascendants- his father, mother, grandfather, grandmother; c) collaterals- firstly includes his brothers and sisters and their descendants and secondly, his uncles, cousins and other relations of either sex, who are not the descendants of the siblings of the deceased. 

Note: The husband or wife of the deceased is not his or her kindred. 

A. Basic principles regarding intestate succession among the Christians and Jews

  • No differentiation between paternal and maternal relations. If the paternal and maternal relations are equally related to the intestate, they are entitled to an equal share of the property. 
  • No distinction between half-blood/full blood/uterine relations.
  • A posthumous child is treated as a lawful successor, as long as he is born alive and was in the womb of the mother when the intestate died.
  • No recognition is given to illegitimate children who are born out of wedlock.  
  • Recognizes adoption and the rights of a natural born child are given to the adopted child.
  • No recognition is given to polygamous marriages.

Succession in Christians and Jews can be done in two ways

  1. ‘Per capita’: Each heir of the same degree of relationship is given one share each. 
  2. ‘Per stirpes’: When the degrees of relationship are discrete, the division is done according to the branches. 

B. Intestate Succession laws in Christianity and Jews

Section 32 of the Indian Succession Act, 1925 states that the property of the intestate shall devolve upon the widow/widower or the kindred (lineal descendants, collaterals, and ascendants) of the intestate in the following manner:

Rights of the widow and the widower 

Sections 33,33A and 34 codifies the rules of succession to the widow of the intestate, which are summarized in the table below:

S.No.

Particulars

Rules of succession

Section

1(a)

If the intestate has left the widow as well as lineal descendants.

Widow (1/3rd) and the remaining (2/3rd) will be shared equally by the lineal descendants.

33

(b)

If the intestate has left the widow, no lineal descendants but some people who are kindred to him.

Widow (1/2) and the remaining (1/2) to be shared by the kindred.

33

(c)

If the intestate has left the widow, no lineal descendants and no kindred

The entire property will devolve to the widow/widower

33

(d)

If the intestate leaves behind a widow but has no lineal descendant or kindred and if the net value of his property does not exceed Rs. 5000/-

The entire property will devolve to the widow/widower

33A

2(a)

If the intestate is not survived by the widow, then the property shall devolve to his lineal descendants and in absence of lineal descendants, to those who are kindred to him, (either ascendants or collaterals). 

The property shall devolve (as the case may be) as per the provisions of Sections 42 to 48.

34

(b)

If the intestate has left no kindred (lineal descendants, ascendants, collaterals)

The entire property shall go to the government.

34

3.

The rights of the widower/husband of the intestate woman. 

The widower has the same rights as the widow in respect of the property of his intestate spouse.

35

Rights of children and other lineal descendants

Section 36 of the Act specifies that the rules for the distribution of the intestate’s property (which will be 2/3rd, after deducting 1/3rd share of the survived widow and one whole if the intestate has left no widow) amongst his lineal descendants are codified in Sections 37 to 40, which are summarized in the table below:

S.No.

Particulars

Rules of succession

Section

1.

If the intestate has left only a child or children and no more lineal descendants.

The property belongs to the surviving child or equally divided amongst the surviving children.

37

2.

If the intestate has left no child,  but only a grandchild or grandchildren and no more remote descendant through deceased grandchild.

The property belongs to the surviving grandchild or is equally divided amongst the surviving grandchildren.

38

3.

If the intestate has left only great-grandchildren or other remote lineal descendants to the same degree only. 

The property belongs to the surviving great-grandchildren or other remote lineal descendants, equally for both males and females.

39

4.

If the intestate is survived by lineal descendants not all in the same degree of kindred to him, and those through whom the more remote are descended are dead.

The property is shared equally by all the lineal descendants of the intestate who qualifies in the nearest degree of the kindred to him at the time of his death or of the like degree of the kindred to him, who died before him leaving lineal descendants.

For Example, A has three children, X, Y, and Z; X died leaving four children; Y died leaving one child; Z alone is the surviving child of his father. On the death of A, the intestate, 1/3rd of the property’s share of A will devolve to Z; 1/3 rd to Y’s only child; and the remaining 1/3rd will be equally distributed amongst X’s four children in the ratio 1/12 each. 

40

Succession laws when there are no lineal descendants

Section 41 of the Act specifies that the rules for the distribution of the intestate’s property (which will be 1/2 share after deducting 1/2 share of the survived widow and one whole if the intestate has left no widow) when the intestate has died without leaving behind any lineal descendants but only kindred are codified in Sections 42 to 48, which are summarized in the table below:

S.No.

Particulars

Rules of succession

Section

1.

If the intestate’s father is living 

Widow (1/2 share) and Father (1/2 share); or Father (one whole if no widow of intestate), even if there are other kindred

42

2.

Where the intestate’s father is dead, but his mother, brothers, and sisters are living.

Widow (1/2 share) and remaining 

(1/2 share) to be shared equally between mother, sisters, and brothers or full share to be shared equally between them, if no widow of intestate.

43

3.

Where the intestate’s father is dead and his mother, a brother or sister, and children of any deceased brother or sister, are living.

Widow (1/2 share) and remaining (1/2 share) to be shared equally per stirpes by mother, brother, sister and children of deceased brother or sister (such children if more than one, would equally divide the share of their deceased parent amongst themselves). 

44

4. 

Where the intestate’s father is dead and his mother and children of any deceased brother or sister are living.

Widow (1/2 share) and remaining (1/2 share) to be shared equally per stirpes by mother and children of deceased brother and sister (such children if more than one, would equally divide the share of their deceased parent amongst themselves)

45

5.

Where the intestate’s father is dead, but his mother is living and has no brother, sister, nephew, or niece.

Widow (1/2 share) and mother (1/2 share) or if no widow of the intestate, then the entire property will go to the mother. 

46

6.

Where intestate has left neither lineal descendant, nor father, nor mother

Widow (1/2 share) and remaining (1/2 share) to be equally divided per stirpes between his brothers and sisters and children of deceased brothers and sisters (such children if more than one, would equally divide the share of their deceased parent amongst themselves) 

47

7. 

Where intestate has left neither parent, nor lineal descendant, nor any sibling

Widow (1/2share) and remaining (1/2 share) to be divided equally amongst the kindred (blood relatives) who are at the nearest degree to the intestate. e.g. If the intestate is survived by grand-father and grand-mother (both being in the second degree), the property will be equally shared by them. Any surviving uncles, aunts, great-grandfather, great-grandmother will be excluded as they are third-degree kindred. On the other hand, if second-degree kindred is not living, then the property will be equally divided amongst all the kindred in the third-degree, fourth-degree kindred will be excluded, and so on.

The entire property to be divided if the intestate leaves no widow.

48

Intestate succession under Indian Succession Act, 1925 for Parsis

In matters of succession, Parsis have followed various customary laws till the codification of laws during British times in 1865. As per these customs, Parsi Panchayats (also called Parsi Anjuman) were given the authority to pass jurisdiction on matters related to succession, land disputes, marital disagreements, and domestic conflicts. The composition of these Panchayats would be influential persons from the Parsi community. 

The term ‘Parsi’ is not defined in the Indian Succession Act,1925. However, it was held by the Bombay High Court that the succession laws codified in the Act for ‘Parsi’ would not only cover the Parsi Zoroastrians but also the Zoroastrians of Iran. 

After the enactment of the Indian Succession Act,1925 Parsi were made to be governed by this codified law. There is a separate scheme of succession for Parsi codified under Sections 50 to 56 of the Act for Intestate succession for Parsi.

In the case of testamentary succession for Parsi, where there is a will executed by the deceased, the general provisions under Sections 57 to 391 of the Indian Succession Act, 1925 apply.

A. Basic principles regarding intestate succession among Parsis (Section 50)

  • A posthumous child is treated as a lawful successor similarly to those born during the lifetime of the intestate, as long as he is born alive and was in the womb of the mother when the intestate died.

 

  • A lineal descendant of the intestate who dies during the lifetime of the intestate, without leaving his widow or children, shall be completely ignored when the distribution of the property of the intestate is done after his death. 
  • If the widow of any lineal descendant of the intestate marries during the lifetime of the intestate, then she will not be entitled to any share in the intestate’s property after his death and shall be considered as non-existing. 

B. Intestate succession laws in Parsis

Section 51 of the Indian Succession Act, 1925 codifies the rules for the division of intestate property among widows, widower, children, and parents. Section 52 of the Act has been repealed. Section 53 defines the rules for the division of share of the predeceased child of intestate leaving lineal descendants. Section 54 specifies the rules where intestate leaves no lineal descendant but leaves a widow or widower or a widow or widower of any lineal descendant. Section 55 defines the rules for the division of property where a Parsi who dies intestate is not survived by the widow/widower, no lineal descendants, no widow of any lineal descendant. Section 56 states laws for the division of property where there is no relative entitled to succeed under the other provisions of  Chapter 3 of Part V, in which the Parsi has died intestate.

All these rules of succession have been summarized in the table below:

S.No. 

Particulars

Rules of succession

Section

1 (a)

When a Parsi dies leaving behind a widow or widower and children, but no parents

Each child and widow/widower will receive equal shares 

51

(b)

When a Parsi dies leaving children, but no widow or widower, and no parents

The property will be divided amongst the children in equal shares.

51

(c)

When a Parsi dies leaving behind one or both parents, along with children and widow/widower

The parent or both the parents shall receive a share equal to half the share of each child. 

51

2 (a)

If an intestate dies leaving a deceased son 

Widow and children of the deceased son take shares as if he had died immediately after the intestate’s death.

53

(b)

If an intestate dies leaving a deceased daughter

The share of the daughter is divided equally among her children.

53

(c) 

If any child of the deceased child has also died 

Then his/her share shall also be divided in like manner following the rules applicable to the predeceased son or daughter. 

53

(d)

Remoter lineal descendant has died

Provisions set out in 2(c) shall apply mutatis mutandis to the division of any share to which he or she would have been entitled to

53

3(a)

Intestate dies without lineal descendants and leaves a widow or widower but no widow or widower of any lineal descendants

The widow or widower shall take 1/2 of the intestate’s property;

The residue shall be divided as below:

54

(b)

Intestate dies without lineal descendants and leaves a widow or widower and also widow or widower of lineal descendants

Widow or widower of intestate (1/3rd), Widow or widower of lineal descendant (1/3rd), and residue (1/3rd) as below:

54

(c)

Intestate dies without lineal descendants and leaves no widow or widower, but leaves one widow or widower of lineal descendants

Widow or widower of lineal descendant (1/3rd); and the residue (2/3rd) as below:

54

(d)

Intestate dies without lineal descendants and leaves no widow or widower, but leaves more than one widow or widower of lineal descendants

Widows or widowers of the lineal descendants together (2/3rd) to be divided equally;  and the residue (1/3rd) as below:

54

(e)

The residue after division as above 

To be distributed among the relatives of the intestate in the order outlined in Schedule II Part I, male and female in the same degree shall receive equal shares.

54

(f)

If no relatives entitled to the residue

The whole of the residue shall be distributed among the persons entitled to receive shares under this section, in proportion to the shares specified.

54

4.

If the Parsi dies intestate leaving behind no widow/widower, no lineal descendants, no widow of any lineal descendants

The whole of the property of the intestate

shall be succeeded by the next-of-kin, in the manner defined in Schedule II Part II (where the next-of-kin standing first is given preference over those standing second, third, and so on, also the property is shared by next-of-kin in the same degree, others are excluded. ) 

55

5. 

No relative entitled to succeed under the other provisions of  Chapter 3 of Part V, in which a Parsi has died intestate.

The property shall be shared equally by the intestate’s kindred who are at  the nearest degree to him

56

Analysis of Christian, Jews, and Parsis succession laws 

The principles of the succession of property shared by Christian, Jews, and Parsis are:

  1. No distinction between paternal and maternal relations. If the paternal and maternal relations are equally related to the intestate, they are entitled to an equal share of the property. 
  2. No distinction between half-blood/full blood/uterine relations.
  3. A posthumous child is treated as a lawful successor, as long as he is born alive and was in the womb of the mother when the intestate died.
  4. No recognition is given to illegitimate children who are born out of wedlock.  
  5. Recognizes adoption and the rights of a natural born child are given to the adopted child.
  6. No recognition is given to polygamous marriages.
  7. Daughters and sons enjoy equal rights of inheritance in parental property.
  8. No distinction between an inherited, self-acquired and ancestral property. All the property owned by the intestate is treated as self-acquired. This gives an absolute right to the intestate to dispose of the property at his discretion during his lifetime. 

Critical Analysis of Christian and Parsi succession laws

1. Sections 42-46 of the Indian Succession Act, 1925: Unjust and unfair for Christian or Jewish mothers. 

  • The mother of the intestate is not entitled to inherit along with the father of the intestate (Section 42 of the Indian Succession Act, 1925). Even if the father of the intestate is not alive, the mother gets share equal to brothers and sisters of the intestate, rather than getting the share that her husband (intestate’s father) would have been entitled to, had he been alive (Section 43 of the Indian Succession Act, 1925). 
  • Injustice runs through Sections 44 and 45 as well. It is only when the intestate’s father is dead, no brother, sister, nephew, or niece are living, then the property goes to the mother under Section 46.

These provisions seem to be obscure and highly discriminatory against the mother of the deceased. 

  • On the other hand, according to the provisions of Section 53 of the Indian Succession Act, which governs succession rules for Parsi, the surviving parent or both the parents of the intestate receive a share equal to half the share of each child. Thus, this provision seems to do justice to the mother of the Parsi intestate. 
  • This leads us to conclude that the provisions codified under Section 42-46 of the Indian Succession Act, 1925 need to be rectified to ensure that the law is fair and just towards Christian women and does not provide superior status to men in inheriting the property of the deceased. 

This matter has been raised by many Christian organizations. Several representations with suggestions, expressing this unfair and unjust treatment had been addressed to the Government and the Ministry of Law and Justice at different times in the past few years. The decision from the Ministry of Law and Justice is still awaited and pending.

2. The spouse of the son and daughter (i.e. daughter-in-law or son-in-law) is not the legal heir

  • If the sons or daughters of the Christian or Jews intestate are deceased, then their lineal descendants are entitled to inherit the property, the spouse of the deceased son and daughter have no share. This can be observed in Section 38 of the Indian Succession Act,1925 which governs succession laws for Christians and Jews. 
  • Whereas in Section 53 of the Indian Succession Act,1925 which governs succession laws for Parsis, if the deceased child of the Parsi intestate is a son, his widow and children will take his share. But, if the deceased child is a daughter, her share will go to her children, not her spouse.  

Conclusion

If we summarize the contents of this article, we can conclude that the testamentary succession laws apply uniformly to the wills of persons of all religions (Christians, Jews, Parsis, Hindus, Sikhs, Buddhists, and Jains), other than Muslims. Also, some principles of the intestate succession laws for Christians, Jews, and Parsis are quite similar. 

Another observation is that the inheritance laws to be followed depend drastically upon the religion which the intestate purports to profess at the time of his/her death. The multiplicity of succession laws in India owing to the diverse religions in force have made the succession laws even more complex. But, it is evident that whatever may be the religion, the basic motive behind intestate succession laws is the devolution of property among the legal heirs without any family disputes. But, who all qualify as legal heirs and their order of preference are governed by the succession laws of the religion professed by the person who died intestate. Hence, the religion of the intestate is of immense importance to understand the laws applicable to a person making a will or planning the succession of his property. 

India is a country with diverse religions and our constitution has given equal rights to all religions. But to keep pace with the multiplicity of succession laws can be quite confusing and tedious for the common man as well as law enforcers. Like every citizen of India, irrespective of religion, caste, and culture are given equal recognition in the fundamental rights, similarly, if a uniform code of succession laws across all religions is followed throughout the country, it would facilitate the understanding and enforcement of laws for the common man as well as law enforcers.

References


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