This blog is written by Shreya Shree, a 3rd year LL.B student of Chotanagpur Law College.
ACTS HISTORY
In the late 19th century, succession was determined on the basis of customary practices and religious laws. Specific rules for devolution of proprietary rights among different religions were followed. Sir Henry Maine proposed the Bill which later became the Succession Act of 1865. The Third Law Commission submitted a draft of Indian Succession Act 1865, which dealt with both testamentary and intestate succession and was based on English law. 1870 the act was once more amended which included that the Act should apply to all Wills and codicils.
INTRODUCTION
The Indian Succession Act 1925 is a central Act of general application and importance, this is the principal legislative measure dealing with testamentary succession in regard to persons other than Hindu and Muslims. This Act also deals with the machinery of succession in respect to both testamentary and intestate succession in respect of people who come under the scope of this Act. The law of succession cannot be regarded as standalone i,e. devoid from relation with other fields.
The institution of succession is connected with private property, but the law of succession serves a variety of values cherished by the society such as the reinforcement of family ties, responsibilities, and economic and social obligations. Moreover, succession is also concerned with the desire to confer one’s property to the immediate family in case of demise. The Act aims to provide an effective law to decide the ownership of property upon a person’s death.
Provisions of the Act.
| Sl. No | Section | Description |
| Part I Preliminary | ||
| 1. | Section 1-3 | Section 2 of the Act. contains important definitions regarding the act like who is an Indian Christian. This section further defines will and as per the act it means a legal declaration of the intention of the testator which he desires to be given effect after his death.Another important definition in this section is that of probate. Probate is defined as a certified will by the court with grant of the letter of administration of the estate to the testator.Section 3 of the Act. grants the state government the power to exempt a particular sect or tribe from the provisions of the act like those granting rights and interests arising out of marriage, testamentary succession, wills, rights to property of intestate, probate of the will etc. |
| Part II Of Domicile | ||
| 2. | Section 4 | This section of the act expressly mentions that the Part II of the act is not applicable to a deceased Hindu, Muhammadan, Buddhist, Sikh or Jaina. |
| 3. | Section 5 | This section of the act says that if a person dies leaving immovable property in India the succession related to that property would be regulated as per law of India, and not the country of his domicile. Sub section 2 provides the moveable property of such person shall however be regulated as per the laws of the domicile country |
| 4. | Section 6 | This section restricts the domicile of a person to only one country. |
| 5. | Section 7-19 | These sections deal with domiciles such as minors, wifes after marriage, lunatics, etc further |
| PART III MARRIAGE | ||
| 6. | Section 20 | This section clarifies that no person shall acquire any interest in the property of the person he or she marries nor will they become incapable of doing an Act with respect to own property which could be done if remained unmarried. This Part does not apply if the marriage is between Hindu, Muhammadan, Buddhist, Sikh or Jaina religion. |
| 7. | Section 21-22 | Section 21 gives us the effect of marriage between a person domiciled and another not domiciled in India. As per this section neither party would acquire any rights to property other than rights mentioned in the marriage settlement in respect of any property which he or she would acquire if both were domiciled in India at the time of marriage. Section 22 deals with settlement of minor’s property in contemplation of marriage, this settlement is only allowed with the permission of the minor’s father or the High Court in absence of the father. |
| PART IV OF CONSANGUINITY(Consanguinity means being descendent from the same ancestor) | ||
| 8. | Section23 | This part is not applicable to testamentary successions or intestate succession of Hindu, Muhammadan, Buddhist, Sikh or Jaina religion. |
| 9. | Section 24-28 | Various Provisions mention conditions when a person shall be considered part of/ descendent of a common ancestor/ common stock of ancestor. |
| PART V INTESTATE SUCCESSION CHAPTER I—Preliminary | ||
| 10. | Section 29 | This part is not applicable over the succession of property of anyHindu, Muhammadan, Buddhist, Sikh or Jaina. |
| 11. | Section 30 | A person is considered to die intestate in respect of all properties for which he has not made a will but was capable of making a will. |
| CHAPTER II—Rules in cases of Intestates other than Parsis | ||
| 12. | Section 32 | The property of an intestate is succeeded by wife, husband or by the kin of the deceased as per rules given in this chapter. |
| 13. | Section 33 | If a person dies leaving behind a widow and lineal descendants, then 1/3rd of the property will belong to the widow and the rest shall belong to lineal descendants. Except under circumstances provided under section 33A if he dies leaving behind a only widow and no lineal descendants than half of the property shall belong to the widow and the rest shall go to his kin. And the whole property would go to the widow if there is no children or kin. |
| 14. | Section 33A | Special provisionsWidows can inherit the whole property if less than Rs. 5000/- and there are no lineal descendants. If the net value of property exceeds Rs 5000/ the widow shall be entitled to get Rs- 5000 which will be charged upon the whole property with 4% interest p.a.from the date of his death.These provisions are to be read with provisions of section 33.Net value of property would be ascertained after deducting all debts, administrative expenses and funeral expenses.This section does not apply over any Indian Christian |
| 15. | Section 35 | A widower surviving his wife has the same rights in respect of her property, if she dies intestate, as a widow has in respect of her husband’s property, if he dies intestate. |
| 16. | Section 37-40 | The distribution of property among the lineal descendants shall be done after deducting the widows share Section 37 the property would go to the children if the descendants are remote compared to the children.Section 38-the property would be divided equally among surviving grandchildren if there are no children surviving. Section 39 in a similar manner gives property to great grandchildren if there are no nearer lineal descendants.Section 40 gives shares to a lineal descendant in proportion to that what his parent would have got and number of descendants who are direct descendants of the parent. |
| 17. | Section 41-49 | Distribution where there are no lineal descendants is done after deducting the widows share. As per section 42 if the father is living he succeeds the property. According to section 43 if the father is dead but his mother is living and there are also brothers or sisters of the intestate living, and there is no child living of any deceased brother or sister, the mother and each living brother or sister shall succeed to the property in equal shares.As per section 48 if there are no near relatives like brother, sister, parent then the property is divided among other near relatives. |
| CHAPTER III—SPECIAL RULES FOR PARSI INTESTATES | ||
| 18. | Section 50 | For the purpose of intestate succession among Parsis-There is no distinction between those who were already born and those who were in the womb at the time of the death of intestate provided those in the womb are born alive.If someone dies in the lifetime of intestate without leaving behind widow/widower or children he will be not considered while dividing property.If a widow / widower remarries he/she would not be considered in the share. |
| 19. | Section 51 | When a Parsi dies leaving behind one or more parents along with children or widow/widower the property would be divided in such a manner that parents get a share which is equal to half the share of each child. If parents are not alive the widow/widower and each child equal shares. |
| PART VI TESTAMENTARY SUCCESSION CHAPTER I | ||
| 20. | Section 57 | This Part of the Act also applies to Hindu, Buddhist, Sikh or Jaina who have made a will. |
| CHAPTER II | ||
| 21. | Section 59 | Every person of sound mind not being minors capable of disposing property by will the different explanations under this section provides for a married women to dispose of any property during her lifetime, a person who are deaf or dumb or blind are may also make a will to dispose any property when in capacity to know their actions, a person who is ordinarily of unsound may make a will during the interval when of sound mind, any intoxicated person or a person due to illness or any other cause is may not make a will during such state of mind. |
| 22. | Section 60 and 61 | A father of a minor may by will appoint a guardian or guardians for his child.Every such will which is obtained by fraud, coercion or importunity.e. without free will of the person making it is void. |
| 23. | Section 62 | A person who makes a will holds the power to revoke or alter any time when he is competent |
| CHAPTER V | ||
| 24. | Section 67-74Attestation, Revocation, Alteration and revival of wills | Section 67 provides that a will may not be held insufficient merely because the person attesting it is the same person receiving the will.Section 69 says every will gets revoked by the marriage of the maker of the will except in cases of appointment where such property would not immediately pass to the executor.Section 70 provides that a will can be revoked only by marriage or a new will declaring the intention to change the previous will. |
| CHAPTER VI | ||
| 25. | Section 75 | As per this section to determine which person or what property is denoted by the will the Court shall inquire into every material fact relating to the persons who claim to be interested under such will, the property which is claimed as the subject of disposition, the circumstances of the testator and of his family, and into every fact a knowledge of which may conduce to the right application of the words which the testator has used. |
| CHAPTER IXOF ONEROUS BEQUESTS | ||
| 26. | Section 122 | As per this section when the bequest imposes some obligation on the legatee then he can take nothing unless he accepts it fully. |
| CHAPTER XOF CONTINGENT BEQUESTS | ||
| 27. | Section 124 | If the bequest is made mentioning a specific uncertain event the legacy would not take effect unless such event happens. |
| PART IX PROBATE, LETTERS OF ADMINISTRATION AND ADMINISTRATION OF ASSETS OF DECEASED | ||
| 28. | Section 217 | This section authoritatively mentions that all grants of probate, letters of administration of the assets in the will would be done as per law mentioned under this statute or any other law in force only. |
| 29. | Section 220- 236 | Section 220 of the act talks about the effect of grant of letters of administration,and it entitles the administrator to all rights belonging to the intestate as effectively as if the administration had been granted now after his death.Section 222 stipulates that probate shall be granted only to an executor appointed by the will.Section 227 talks about the effect of probate of a will in the manner that it establishes the will of the deceased and renders all immediate acts of the executor valid.Administration is granted for the will in absence of an executor and is granted to the legatees mentioned in the will. |
| 30. | Section 276-290 | These sections deal with the petition of probate and grant of Letters of Administration before the court of District Judge, and particulars such a petition should contain have been mentioned in Section 278. Further how the petition is to be verified etc. are also mentioned in these sections. |
| 31. | Section 305-315 | These sections empower the executor or administrator to dispose of the dues of the deceased, administer or dispose of the property etc. |
| 32. | Section 316-337 | These sections impose duties on the executor or administrator with respect to the property of the testator. |
LOOPHOLES IN THE PROVISION AND SUGGESTED CHANGES
The Law Commission of India has recommended in 2014 reforms in sections 41 to 48 of the act suggesting that the scheme mentioned in these sections is unfair to Christian women; these sections deal with rules regarding succession when there are no lineal descendants of the deceased. Previously in 2008 the Law Commission had recommended omission of Section 213 which deals with right of an executor or legatee and when it can be established in a competent court this right can be only claimed when probate has already been granted to a will the law commission has recommended removal of this section.
IMPORTANT CASE LAWS
Preman v. Union of India, AIR 1999 Kerala 93
The case of Preman v. Union of India, AIR 1999 Kerala 93 dealt with the issue of the validity of a will executed by a Hindu who was a member of the Indian Army. The petitioner, Preman, challenged the will on the grounds that it was not executed in accordance with the provisions of the Indian Succession Act 1925. The Kerala High Court, in its judgment, held that the provisions of the Indian Succession Act 1925 do not apply to the wills executed by members of the Indian Army, as they are governed by the Indian Succession Act 1925, which is a special law. The court also held that the will to be executed by the deceased was valid, as it was executed in accordance with the provisions of the Indian Succession Act 1925, which applied to him. The judgment is significant as it clarifies the applicability of the Indian Succession Act 1925 to the wills executed by members of the Indian Army and emphasizes the importance of following the provisions of the applicable law while executing a will. But the supreme court held that section 118 of the Act which restricts bequest of property of religious institutions where the testator has no children but a nephew or niece as violative of Article 14, 15, 25,26.
CONCLUSION
The Indian Succession Act., 1925 is a compressive legislation and has attained growing significance in the courts with increase in the tendency of people to bequest property through wills. But the act is highly procedural towards its end, moreover non applicability of certain parts of intestate succession to certain religious denominations and even certain large religious minorities like Indian Christians makes it redundant at some places. We must move towards a common law of testamentary succession which suits the needs of current times.
