Inheritance or succession points towards the idea of following a particular event or object, places of series, however when we regard the term “succession” in law and with respect to lineage it holds a completely different meaning and essence. Every family looks upto to succeeding the ancestral and acquired property with by way of the deceased through Will or as per the law, in case of no valid Will. It is necessary to make readjustments of goods and things, which are left behind by the deceased person, in a legal manner, and hence it is very important to have legislation for succession matters as to who will own, in what proportion and enjoy the goods and property after the death of the person.
So, the legal definition of “succession” can be stated as partition or redistribution of the property of the deceased among the legal heirs of the deceased depending upon the prevailing law. The distribution can be either by way of deceased person’s will, but there are situations where the Will is not acceptable or invalid or not even present. Then in such cases, the property needs to devolve among the family members of the deceased, thus there are set of provisions made under each personal law, which are to be followed by the respective classes, in case of no Will is made or found for devolution of property.
The provisions are inserted looking into the customary practices followed by each class and what is better for the society as whole, keeping the unreasonable practices out of it, and finally the legislation is enacted to have a codified law for succession matters of each personal law. When we talk about succession laws, there are some significant aspects which are covered among these provisions, such as the proportionate distribution of assets among the legal heirs, which relation is has to be preferred first among all and which one has to be latter one, what will be the manner of distribution etc. But the corporate entities such as Company, Firms have perpetual existence and do not come under the scope of succession laws, their distribution of assets and liabilities is handled by different provisions like winding up, reorganization and closure etc.
Succession law concentrates on devolution of property of deceased person and not of some company or firm. The law of succession focuses on devolution and transmission of property whose rights are vested with one person (testator) at that time and will be transferred to other person or persons. Succession can be broadly divided into 2 forms, “testamentary” succession (where there is valid Will) and “intestate” succession, (where there is no Will). In case of intestate succession, then the property is distributed among the legal heirs of the person, as per the law applicable to the succession (which is decided depending upon the religion professed by the deceased person).
Testamentary succession basically means the estate of the deceased is distributed as per the wish of the person mentioned in his Will, and the succession matters of both testate and intestate for Christian and Parsis in India are governed by the provision of Indian Succession Act, 1925. The Act has defined an “Indian Christian” as native of India who is and in good faith claims and appears to be of Asiatic descent, and professes the religion of Christianity. However, the term “Parsi” has not been defined under the Act.
Later in one of the judgments, the Bombay High Court, the term “Parsi” was defined and it was stated that the word “Parsi” used in the Indian Succession Act includes the Parsi Zoroastrians of India as well the Zoroastrians of Iran and no other Zoroastrians. Thus, for referring to the succession laws of Indian Christian and Parsi, it is mentioned under Indian Succession Act 1925 and the rules for testate succession are same for both the religion whereas the rules differ for Intestate succession.
Intestate Succession Among Indian Christians
The devolution of an intestate’s property in case of Indian Christian devolves upon the legal heirs of the deceased, and the specific order and preference in which the property shall be devolved is stated in Chapter II, part V of the Succession Act. All the relevant rules regarding intestate succession of Indian Christian is mentioned in the said part. Some of the striking principles of devolution are as follows-
- If the deceased has some lineal descendants like more than one child, or some remote relatives then the share of widow will be 1/3rd of the property and remaining 2/3rd shall be devolved upon its lineal descendants. But in case, there are no lineal descendants but only the parents of the deceased and other close relatives, then the widow shall be getting ½ share of the property and the remaining half shall go to the close kindred and parents of deceased. And if there are no kindred found of the deceased, then the entire estate shall devolve in favour of the widow. It should be noted that the rights given to widow will be the same for the husband, with respect to the property of his deceased wife.
- In cases, where there is no widow, then the property shall devolve to his lineal descendants directly and if there are no lineal descendants(son/daughter of deceased), then the property shall go in the hands of kindred of the deceased in proportions and not completely, as laid down from section 41 to 48 of the Succession Act.
- Earlier, the Indian law didn’t recognize the adoption, especially the adoption by Christian but in case of Joyce Pushapalath Karkada Alias v. Shameela Nina Ravindra Shiri, 2010, it was held by the Court that even an adopted child has the rights to succession as similar to the rights of a natural-born child. There is no distinction made between the rights of adopted or naturally born child.
- Even a posthumous child has the same rights as the other children, stating as if he was actually born at the time of death of the intestate.
● Laws for distribution of intestate’s property
I. Distribution of property where lineal descendants are present (section 37 to 40)-
The rules for distribution of property of an intestate where the lineal descendants are present is mentioned under section 37 to 40 of the Act. If the deceased has left widow/widower, then deducing the share of widow from the property, the remaining distribution among the legal heirs is as follows-
- Section 37 states that, if only the deceased had only one child or children and no further lineal descendants then the property shall be divided equally among the surviving children of deceased.
- Section 38 states that if there are no surviving children, but there is grandchild or grandchildren, then the property shall devolve entirely upon the surviving grandchild or in case of grandchildren, it shall be distributed equally.
- Section 39 of the Act states, that if there are only great grandchildren alive or some other lineal descendants in the same degree, then the property shall devolve upon the great grand children or the other remote lineal descendants equally among the males and females.
- Section 40 states that, if the intestate has left lineal descendants but not of the same degree of kindred, and those descendants through whom the succession descended have already died, then the property shall be divided into the equal shares with respect to number of lineal descendants of the intestate who belong to the closest degree of the kindred of the intestate, who died before the intestate, leaving their lineal descendants who have succeeded him.
For example- if A had three children, B, C and D, and B died in an accident leaving behind 2 children, D also dies leaving behind one child and only C is the surviving child of A, then the property shall be divided into 3 parts, one part shall go to C (surviving child), one part to 2 children of B and the remaining part to single child of D.
II. Distribution of property where there are no lineal descendants (section 42 to 48)-
Distribution and devolution of property where there are no lineal descendants of the intestate person is mentioned under section 42 to 48 of the Act. The person who dies without leaving any children or remote lineal descendants behind, then the rules for distribution of property is marked in order of preference and is as follows-
- Section 42 states that Widow shall get ½ of the share and father of the deceased shall get remaining half of the property, even if other kindred are still present
- Section 43 mentions that Widow shall get ½ share of the estate and if there is no father, then the mother, brother and sister of the deceased shall distribute the remaining ½ equally among themselves
- Section 44 states that, widow gets ½ of the share, and mother, brother, sister and children of any deceased brother or sister will be getting the rest of the ½ share equally per stirpes
- Section 45 states that, widow gets half of the share and mother and children of the deceased brother or sister get the rest of the half equally per stirpes
- Section 46 states that widow shall get ½ share of the estate and if only mother is surviving then she will get the other ½ of estate
- Section 46 states that widow shall ½ of the share and if there is no mother, then brother, sister and children of predeceased brother or sister shall get remaining half distributed equally per stirpes
- Section 47 mentions that if there are no parents and siblings, then widow gets ½ share and rest of ½ shall be given to remote kindred of the closest degree.
Intestate Succession among Parsis
The Parsi intestate are administered by the rules mentioned under Part V chapter III of the Act and it states the manner in which the estate is distributed among the legal heirs of the deceased. Section 51 to 56 state about the intestate succession of Parsis, the general rules of Parsi intestate succession are-
There is no share for a lineal descendant of an intestate who has died before the death of intestate, only if the remote issue of predeceased child of the intestate has left neither any widow or widower, child or children nor any widow of any lineal descendant of such predeceased child. If the predeceased child of the intestate has any one of the abovementioned relations alive, then that child’s share shall be counted for the distribution of the estate. This is mentioned under section 53 of the Act.
Further, it has been mentioned under section 53(b) of the Act, that if the predeceased child is a daughter, then the widower shall not get any share but the children of the predeceased daughter shall be receiving the share of their mother, which has to distributed equally among them. And in case there is no lineal descendant of daughter, then her share won’t be counted at all.
No share shall be given to any widow or widower of any relative of the intestate if that person has remarried during the lifetime of the intestate. Although, this rule has an exception that if the mother or paternal grandmother of the intestate marries again during the lifetime of intestate, then also they will be entitled to share in the estate.
Testamentary Succession among Christians and Parsis
The testamentary succession of a person can be done by making a Will or Probate. But the Will should be valid and the person making it, should be competent enough to make it or else the Will is considered to be invalid. Some of the important aspects of testamentary succession for the Christian and Parsis are-
- Persons who are capable of making a Will– Every person who is of sound mind and is not a minor can make a Will to dispose of his property. Hence, even a married woman or dumb, deaf or blind person are capable of making a Will, if they have the knowledge of what are they doing and have the intention to do so. The competency of a person is same as mentioned under the Indian Contract Act, for example a person who is intoxicated or ill might not have the proper state of mind to make a Will.
- Concept of Testamentary Guardian– A father has been given the right to appoint a guardian or even guardians by the Will for his child or children till the child attains the age of majority.
- Revocation of Will by Testator’s Marriage– Section 69 of the Succession Act, states that all the Wills shall be considered revoked by marriage of the Testator that takes place after the making of Will
- Privileged and Unprivileged Wills– All the Wills that fulfill the terms mentioned under section 63 of the Act, are known as the “Unprivileged Wills” and the wills that are made and executed u/s 66 of the Act are called “Privileged Wills”.
Section 63 states the essentials for a valid will that is-
- Every Will must have the signature of the Testator or his thumb impression could be used as his mark or signed by a person who is directed by the testator and in presence of Testator.
- The Will should also be signed by atleast 2 witnesses, who approve that they have seen the testator sign the Will or affix his mark.
Section 66 states about the “Privileged Wills” which can be made by persons who are in Armed Forces. Basically, this privilege has been given to soldiers or airmen or even mariners who are engaged in war like situation or any expedition involving actual warfare. These men can give their Will either in writing or orally and it is not necessary to have the signature of the Testator or even attestation by anyone else on that Will.
In case of Privileged wills, the mode and manner of making and executing a Will shall be in accordance to Section 66 and it is comparatively less complicated then the ordinary unprivileged Will.
- Bequests to religious and charitable causes– Section 118 talks about the bequests that are made in favour of religious and charitable causes, but this section applies only to the Christians and not Parsis. The section states that no man who is having a nephew or niece or any closer relative shall have the power to donate his property to any religious or charitable uses except by a Will that is executed not less than 12 months before his death and it is submitted within 6 months from its execution in some place as stated in the law for the safe custody of the Wills of the living persons. But this section was struck down for being unconstitutional by the Apex Court and thus Christians and Parsis have the right to leave their property for charity without being chained by the above provision.
- Probate– In case of a Parsi person dying, probate is necessary and needs to be issued if the Will is made or the property bequeathed under the Will is located within the jurisdiction of the three presidencies Calcutta, Madras and Bombay. Even if the Will is made outside the limits of these cities but the property attached to the Will comes under the jurisdiction of these three cities then also, probate has to be issued.
In case of dying Christian, it is not compulsory to obtain a Probate for his Will. The will alone is sufficient.
Mutual Concepts Shared By Christian And Parsi Succession Law
There are certain common ideas with regard to illegitimate child which are shared and followed by both the communities in acquiescence. The principles shared by both Christian and Parsis are-
- Both the communities, Christian and Parsi don’t identify the rights of an illegitimate child who is born out of the wedlock and they give recognition to only those children who are born from legitimate marriages. This was stated in the case of Raj Kumar Sharma v. Rajinder Nath Diwan AIR 1987 Del 323. Thus, child who is born out of the wedlock cannot claim any rights over the succession from his biological parents in the Christian and Parsi law. The community gives importance to relations running from lawful wedlock only.
- The Christian and Parsi succession laws don’t make any distinction between the relations through the father or mother. In cases where there are both, paternal and maternal relations found of the intestate person, the all the relations shall be liable for equal share of the estate distributing in equal manner. Further, Christian and Parsis also don’t make any discrimination when it comes to full blood/ half-blood/ uterine relations and even a posthumous child is considered as a child who was present while the person died intestate on the condition that he was already conceived and was in the womb and is born alive.
Thus, from the above content it can be summarized that the succession laws of Christians and Parsis is very much similar to the Hindus succession law, especially the testamentary succession which is same for Christian, Parsi and even Hindus, except for Mohammaden people. Although, the intestate succession differs drastically from religion to religion, even though the basic idea of intestate succession revolves around devolution of property among the legal heirs of the intestate. But who all come under the category of legal heirs and what will be the preferential order of the heirs is decided by the respective personal law which the intestate was professing at the time of his/her death.
Hence, it is very important to know the religion followed or professed by the person who died intestate, in order to apply the relevant succession law over his goods and property. India is a country with multiple religions in force, and each one of them has been given equal recognition in our fundamental rights but to keep track of different succession laws can be tiresome and even cause confusion, thus it would be a better option, if a uniform law of succession is followed throughout the country to keep it simple for the entire population as well as the law enforcers.
This Article is authored by Rhea Banerjee pursuing B.A.LL.B from Indore Institute of Law.