THE INDIAN SUCCESSION ACT, ACT No. 39 OF 1*. [30th September, ] An Act to consolidate the law applicable to intestate and testamentary. LAW COMMISSION OF INDIA. ONE HUNDRED AND TENTH REPORT. ON. THE INDIAN succession Act, FEBRUARY, Act Info: Preamble1 - INDIAN SUCCESSION ACT, Part 1. Section1 - Short Section5 - Law regulating succession to deceased person's immovable and.
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Indian Succession Act, Bare Act. Indian Section Law regulating succession to deceased person's immoveable and moveable property, respectively. Download This Paper Open PDF in Browser Section 63 of the Indian Succession Act, declares the substantive law regarding the execution of an . The Indian Succession Act, Language English. Attachment File: PDF icon Download The file ( KB) pdf Icon. Act No.:
More improvement in the status of Christian women can be brought by the changes in the ISA, II Inheritance Right of Christian Widow under ISA, Unlike other personal laws, widow of deceased husband under Christian law has been given the main preference in devolution of property of spouse dying intestate. Property devolves on others heirs only after share of property is first reserved for her which share varies with the presence or absence of lineal descendant. Presence of lineal descendants of the spouse dying intestate decreases her share whereas their absence leads to increase in her share.
Hindu Succession Act, 1956
Though her share varies with presence of different degree of kindred she is never denied any share. Christian widow of deceased husband being placed highest in the order of succession tacitly recognizes her contribution in the accumulation of property by the deceased. ISA, following the English doctrine of pre-nuptial settlement, for the first time in the history of India had introduced the concept of pre-nuptial agreement for persons governed by the Act which also includes Christian women.
Such an ante-nuptial agreement between husband and wife excluded the widow from claiming her share in the estate of her husband if he died intestate. Such provision rendered her destitute at the time when she became a widow so the need was to remove such a provision.
The issue was brought under Indian Succession Amendment Bill, It proposed for deletion of pre-nuptial agreement provision from the statute as it was against the interest of a widow. Though the Bill lapsed it was again brought before the Legislature by 35 Section. Devolution of such property.
The then Law minister, Mr. Arun Jaitley while defending the proposal for deletion of such a provision, observed that the object of pre-nuptial agreement was the protection of those Englishmen, who came in large numbers to India before independence, marry here but made sure that their Indian wives were not entitled to inheritance to their British properties Since the provision was made for that purpose which was no more relevant the Legislature agreed for removal of such provision.
Accordingly the IS A Act, had done way with such explanation under the provision. Since the Act majorly affects Christian in India such omission of provision which curtailed the rights of Christian women restores the primacy to the rules of devolution notwithstanding any pre-nuptial agreement with the husband.
In presence of lineal descendants widow including Christian widow inherits only one-third estate and the remaining two-third goes to the lineal descendants. When there is more than one child then the share reserved for widow seems justified, for it gives her better share but when deceased husband has left behind a widow and only one child, her share being reduced to one-third appears to be unjustified as the single child gets the majority share of two-third and the widow is to be satisfied with lesser share of one-third.
Though the Hindu law38 provides for equal distribution of shares among sons, daughters, their issues, widows and mothers who are placed under Class I it answers such instance by dividing equal share between widow and the single child in absence of mother and other children or their issues. Neither the th Law Commission Report40 nor did the recently submitted th Law Commission Report on ISA, , which though has recommended plethora of changes in the ISA, , has envisaged such a situation and suggest accordingly.
When other English statute can make changes in their law by providing equal share to both widow and single child there appears to be no justification for still continuing the primeval law under the Indian statute. The net value has to be ascertained by deducting from the gross value all debts, funeral and administration expenses and all other lawful liabilities and charges to which the property is subject.
Object of placing a condition where certain sum was mandatorily reserved for the widow was to improve the condition of the widow when estate is small.
Further it applies only in case of total intestacy i. But even this benefit of minimum guaranteed payment is denied to Indian Christians women, any child or grandchild of any male person who is or was at the time an Indian Christian and any Hindu, Buddhist, or Jain, succession to whose property is governed by ISA, When the Act was enforced in the year it was basically to protect the rights of widows of Europeans domiciled in India, Eurasians, Jews, Armenians and others. The object was to guarantee added property rights basically 39 Supra 3 40 Supra 7 41 th Report of Law Commission of India on Proposed reforms in sections of Indian Succession Act, September submitted to the Government of India on 12th September to Christian widows of Europeans domiciled in India only and not to extend the benefit to Indian Christian widows or Hindus living in India.
For widows falling under such exceptional group she is not to be given additional share but is to be just allotted half share in absence of lineal descendants of the deceased husband. With the fall of value of rupee the th Report recommended for amendment in the provision. The Law Commission had tried to draw the attention of the Legislature for change in the guaranteed sum given to the widow considering the plunging cost of rupee.
Indian Succession Act, 1925- Bare Act
The Government introduced Indian Succession Amendment Bill by proposing to extend the benefit to Indian Christians and to raise the minimum amount owing to spirally inflationary conditions but no step has been taken in this respect to make it a concrete law. Such provision of added benefit was placed during that time when Europeans domiciled in India were in abundance to essentially benefit those Europeans widows domiciled in India.
Continuing of such provision even after decades of independence when such residents are none or negligible and negating those beneficial rights to Indian Christian widows need introspection.
Though it is creditable that the framers of the ISA, thought of supporting the widow by granting her mandatory sum, such issue not even being touched under other personal laws, denial of such benefits to Indian Christian widows for whom Act was primarily framed frustrates the very purpose of continuing the provision in present period. As it is a beneficial provision for uplifting the financial and social position of women primarily Christian widows it would be better if this benefit is extended to Indian Christians widows by removing the exception clause under the provision.
Since this proviso seeks to give better rights to a widow without lineal descendants, the denial of the benefit to the above mentioned groups cannot be justified on the grounds of policy42 and therefore the exceptions are illogical and should be deleted Despite attention of Legislature being diverted to the archaic provisions, Legislature has yet to take a call on extending the benefit to Indian Christians and increasing the mandatory sum to be given to widows.
When apart from widow the issues of brothers or sisters are present and none else, even then widow is entitled to half the property and remaining half goes to those distant kindred.
The Act only recongnises relationship by consanguinity therefore lineal descendants from lawful wedlock only have right in the property. Lineal consanguinity is that which subsists between person, of whom one is descended in a direct line from the other e.
No rights are reserved for relations brought in family by marriage, therefore no shares are reserved for widow of pre-deceased son or widow of pre-deceased son of a pre-deceased son. That right is denied to the widowed daughter-in-law who has given birth to such child. It may have been logical for ISA, originally intended for Europeans to exclude relation by marriage. Under law of England such exclusion does not result in much hardship because of the prevalence of marriage settlements, the higher social status of women, the larger opportunities available to women to engage in professions and the greater frequency of widow remarriages but in Indian conditions a different approach is necessary The Act primarily focused on such widows to deny them the rights but lost sight that it also applied to Indian Christians, Parsis, Armenians, Jews etc.
As Hindu law, apart from recognizing relation by consanguinity recognizes relation by affinity, widow of pre-deceased son or widow of pre-deceased son of a predeceased son inherits property of the intestate. She loses her right to inherit only when she gets remarried before property devolves on her in the capacity of widowed daughter-in-law. Similarly the ISA, could be amended to include relation by affinity and grant property rights to widowed daughter-in-law.
The need for change of law is far greater as ISA, is also applicable to succession of persons who solemnize their marriage under SMA The complete rights of the widow over property of deceased husband are thus depended on the presence or absence of any kindred mentioned in the Schedule of the Act.
Presence of any kindred under the schedule reduces her share to half and the other half is reserved for that distant kindred of the deceased.
Property is reserved for that distant kindred of the deceased whom the deceased may not have even met during his lifetime. During such time when the dimensions of family is narrowing day by day, variation in share of widow being dependent on the presence or absence of the distant kindred or the property being reserved for that distant kindred whom the deceased may not have even met during his lifetime does not appear to be justifiable.
Consequently the issue was brought by Indian Succession Amendment Bill, which also suggested for giving full rights to widow in the property of her deceased husband if husband dies without making a will and without leaving children and parents. It also suggested that in such situation there was no need to share the assets with the remote kindred of the deceased.
The suggested change has not seen light of the day by being brought up as amendment in ISA, Under Hindu law the widow is made the Class I heir along with the mother, children and issues of predeceased children of the deceased husband.
The share of widow only varies with the number of claimants present under Class I. The claimant under Class I are all lineal descendants of the deceased along with mother. Even father belongs to Class II along with brothers and sisters of the deceased. If no other scheduled heir is present under Class I widow inherits the entire property of the deceased husband.
Her share is not even dependent on the presence of father or brother or sister of the deceased. Varying of her share in the presence of distant kindred of the deceased is out of question under Hindu law. Rights in property to Muslim widow though have been granted but her share is not equal to the share received by lineal descendants. She is a sharer and her share is fixed under Quran. She either inherits one-fourth in absence of lineal descendants and one-eighth in their presence. The presence of other sharers or residuaries does not affect her allotted share.
If there are other sharers, allotted shares are given to them and rest passes on to the residuaries. After allotting of specific shares to different sharers if share is left but no residuaries are left, by doctrine of radd the property returns back to all the sharers except the spouse.
Distant kindred under Muslim law inherits only when there are no residuaries unlike ISA, where they inherit together with the widow in absence of lineal descendant, father, mother, brother and sister or their issues. Women before advent of Prophet Mohammed was considered to be property herself with no vested inheritance rights which state of affairs was changed by Prophet by making inheritance rules just and equitable. Women are given inheritance rights but her share is to be one half of the corresponding male relations share thus there exists sex-linked discrimination.
ISA, lays down 49 Supra 7 uniform rules of succession for both males and females and does not discriminate heirs on the basis of sex. The philosophy of Muslim law and that of ISA, are quite different thus ISA, relying on Muslim law for granting entire rights in property to widow only on the condition that none of the kindred relatives of the deceased husband is present appears to be erroneous. The Act discriminates between father and mother in devolution of property.
The opportunity of other near relatives to the deceased to inherit arises only in absence of lineal descendants. In absence of lineal descendants, one-half share of the property is reserved for the widow and the other half devolves on father, if living. In his absence it passes to mother, brothers and sisters and issues of predeceased brother or sister Mother is deprived of the share in presence of father.
Even when she inherits, she is to share the property with brothers and sister or their issue. Since no amount of share is fixed for mother it varies with the presence or absence of siblings of the deceased. Increase in the number of brothers or sisters further decreases her share.
It is only when brother, sister or their issues do not survive that she inherits the entire other half of the property. The provision excluding one parent completely in presence of other parent appears to be illogical. To exclude the mother in presence of the father ignores the role that the mother plays in the upbringing and settlement of the child from the beginning to the attainment of maturity.
These provision is not in conformity with current thinking as to the status of women. Under law of England52 both mother and father takes equally even in presence of brothers and sisters of the intestate. If only one of them survives he or she takes the whole share.
Under Hindu law mother inherits as Class I heir of male dying intestate. Her importance can be judged from the fact that she is the only ascendant given the right under Hindu law to inherit as Class I heir, rest all other Class I heirs, fifteen in number, are the descendants of the deceased related to him by consanguinity or affinity.
It is only when none of the sixteen heirs as mentioned in scheduled Class I, the property devolves on Class II. Thus under Hindu law only mother inherits in presence of father in property of male dying intestate.
Mother she has been placed in Class I heir to recognise her sanctity and also on the logic that she would be in more need for property than the father of the deceased. Also she receives equivalent share as received by each child of deceased. Muslim law also gives due importance to mother than to father. Father inherits as a sharer in presence of child and in his absence takes as residuary.
But mother irrespective of absence of presence of child always takes as sharer with only variation in share in presence or absence of such child. The Portuguese Code, also gives equal right in the property of the deceased to both father and mother in absence of descendants of the deceased.
Presence of father and mother or either of them excludes the right of brother and sister under this Code. If deceased is survived only by mother and his brothers and sisters, mother takes the entire property. The Code also does not treat mother and brothers or sisters of the deceased to be on the same platform as is being done under Indian Succession Act, The 52 Administration of Estates Act, s.
The Indian Succession Amendment Bill, had suggested for dividing equal shares between father and mother but the Bill lapsed. After a decade initiative has been taken by Law Commission of India which has recently submitted its recommendation for uplifting the position of Christian mothers Bringing into light the wrong done to the mother in devolution of the property, the Law Commission of India has suggested the following: 1 After allotment of one-half of the share to widow, mother to take equal share with father in absence of lineal descendants of the deceased 2 On death of either of the parents of the deceased, the other parent to succeed the entire other half left after allotting one-half to the widow.
With these changes the status of mother would be uplifted and would be given the same position as being given in other personal laws.
The person and ministry of the Holy Spirit
Biasness against female would, to an extent, be removed by promoting mother to be equivalent to father in matters of inheritance. These changes would go a long way in bringing consonance with time and in addressing concerns of Christian and other community governed by ISA, The Christian widows were required to establish right to property of deceased.
The th Law Commission considered the applicability of s. The Commission recommended for amendment of s. The Commission also took note of uncertainty surrounding probate. Uncertainty is whether the provisions merely bar the passing of decree or whether they bar the very institution of the suit to enforce the right claimed under the will.
The commission recommended for amendment of Section to make it clear that 55 S. Despite such recommendation in for exempting Christians from the applicability of s.
But the Kerala Amendment Act, did not give immunity to wills executed by Christians of Kerala for property outside Kerala. Thus for wills executed for property situated outside Kerala the Christians in Kerala still required probate or letters of administration to establish rights in such property.
For example, A fund is given to A for his life and after his death to B for his life; and after B's death to such of the sons of B as shall first attain the age of A and B survive the testator. The son of B who shall first attain the age of 25 may be a son born after the death of the testator; and such son may not attain age of 25 until more than 18 years have elapsed from the death of and B.
The vesting of fund may thus be delayed beyond the lifetime of A and B and the minority of the sons of B. The bequest after B's death is void. Transfer to a class some of whom may come under above rules.
If a bequest is made to a class of persons with regard to some of whom it is inoperative by reasons of the fact that the person is not in existence at the testator's death or to create perpetuity, such bequest shall be void in regard to those persons only and not in regard to the whole class.
A fund is bequeathed to A for life, and after his death to all his children who shall attain the age of A survives the testator, and has some children living at the testator's death. Each child of A's living at the testator's death must attain the age of 25 if at all within the limits allowed for a bequest.
But A may have children after the testator's decease, some of whom may not attain the age of 25 until more than 18 years have elapsed after the decease of A.
Indian Succession Act, 1925- Bare Act
Transfer to take effect on failure of prior Transfer. Where by reason of any of the rules contained in sections and and bequest in favour of a person of a class of persons is void in regard to such person or the whole of such class, any bequest contained in the same will and intended to take effect after or upon failure of such prior bequest is also void. A fund is bequeathed to A for his life, and after his death to such of his sons and shall first attain the age of 25, for his life, and after the decease of such son to B.
The bequest to B is intended to take effect after the bequest to such of the sons of A as shall first attain the age of The bequest to B is void. Effect of direction for accumulation. Where the terms of a will direct that the income arising from any property shall be accumulation either wholly or in part during any period longer than a period of eighteen years from the death of the testator, such direction shall, save as hereinafter provided be void to the extent to which the period during which the accumulation is directed exceeds the aforesaid period, and at the end of such period of eighteen years the property and the income thereof shall be disposed of as if the period during which the accumulation has been directed to be made had elapsed.
However, this will not affect any direction for accumulation for the purpose of- The payment of the debts of the testator or any other person taking any interest under the will; or The provision of portions for children or remoter issue of the testator or of any other person taking any interest under the will; or The preservation or maintenance of any property bequeathed; and such direction may be made accordingly.
This rule provides that accumulation of income arising from any property bequeathed should come to an end or be determinable on the beneficiaries attaining vested interests within the perpetuity period.
If the direction in the will for accumulation exceeds 18 years, the direction will be void to the extent of the period which exceeds 18 years. At the end of 18 years, the property and the income will be payable as per directions in the will.
However, this rule is not applicable where the direction in a will is for the purposes of payment of the testator's debts or of any other person taking interest under the will or for the raising portion for any child, children or remoter issue of the testator or for preserving or maintaining houses and tenements or charity.
If the will was seen with the testator, but could not be found after the death testator, it will be presumed that the same has been revoked by the testator by destroying the same.It is only when brother, sister or their issues do not survive that she inherits the entire other half of the property.
Also if the widow of a pre-deceased son, the widow of a pre-deceased son of a pre-deceased son or the widow of a brother has remarried, she is not entitled to receive the inheritance. If there is no kindred and no children or grandchildren, the entire property shall be given to the widow.
Explanation as to who shall be considered as Hindus, Buddhists, Jains or Sikhs by religion has been provided in the section: any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion; any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; any person who is convert or re-convert to the Hindu, Buddhist, Jain or Sikh religion.
Administration limited to property in which person has beneficial interest Section Indian Succession Act, was not made applicable to Travancore because power of legislation over Travancore had never been conceded to the British.