SUCCESSION UNDER INDIAN SUCCESSION ACT

Objective of the Act - An Act to consolidate the law applicable to intestate and testamentary
succession.

INTESTATE SUCCESSION (29- 46)

Synopsis:

1. Applicability

2. Intestacy

3. Rules in case of intestates other than parsis

4. Special rules for Parsi intestates

APPLICABILITY: (Section 29)

This chapter is not applicable to Hindu, Mohammedan, Buddhist, Sikh and Jain. So this
chapter applies only to Parsis, Europeans, Indian Christians.

INTESTACY:

Section 30: A person is deemed to die intestate in respect of all property of which he has not made a
testamentary disposition which is capable of taking effect.

Illustrations:

(i) A has left no will. He has died intestate in respect of the whole of his property.

(ii) A has left a will, whereby he has appointed B his executor; but the will contains no other
provision. A has died intestate in respect of the distribution of his property.

(iii) A has bequeathed his whole property for an illegal purpose. A has died intestate in respect of the
distribution of his property.

So the person deemed to have died intestate Firstly, when he has not made a will at all and
Secondly, when he has made a will but is not effective in legal sense, or if it does not cover whole of
his property.

RULES IN CASE OF INTESTATES OTHER THAN PARSIS

Where the intestate has left –

1. Widow only- she takes everything (section 32)

The property of an intestate primarily devolves upon the wife or husband or his kindred but
a widow will not get her husband’s property, if by a valid contract made before her
marriage, she has been excluded from the distributive share of her husband’s estate.

2. Widow and lineal descendants – Widow takes 1/3rd and Lineal descendants 2/3rd
 3. Widow and kindred but no lineal descendants – Widow takes ½ and Kindred ½
4. Widow, but no Lineal Descendants
If net value of property is Rs5000 or less, the widow takes the whole property. If it exceeds it
is divided among the heirs.
5. No Widow
Property will go to the Intestate’s lineal descendants; in default, to his Kindred; and in
default of both, to the Government.

RULES OF DISTRIBUTION: (section 36 to 48)

Rules of distribution among LINEAL DECENDANTS: (section 36 to 40)

If the intestate has left a widow, her share of 1/3rd property is first to be deducted. The
balance will devolve as per the following rules:

1. If the intestate has left a child or children only (and no remote descendant through a
deceased child). The child takes the whole of it, or if more than one, the children divide
equally among themselves. (section 37)
2. If the intestate does not leave a child behind him, but leaves behind a grandchild (or grand
children),- the grandchild takes the whole of the (balance) property, and if more than one,
the grand children get equal shares in the property. Here again, it is presumed that there no
descendant of a deceased grandchild.
3. The same rule applies if deceased left only great-grand children or remoter lineal
descendants, grand child or grand children or great-grand children. The division among them
has to be per capita.
4. If, however, the lineal descendants are not in the degree, the division has to be per stripes.

Rules of distribution among KINDRED: (Section 41 to 48)

If the intestate has left a widow (or widower), her (or his) share of ½ is first to be deducted.
The balance will then devolve as follows:

1. If the intestate’s father is living (section 42)

He takes the other half. So if the intestate leaves behind him only a widow and his father,
then widow will get ½ and father gets ½.
2. If, however, the intestate’s father is dead (section 43)
The mother and brothers and sisters of the intestate succeed equally, but the children of a
deceased brother or sister represent the parent and take the share which their parent would
have taken, if alive.
3. So also, if the father of the intestate and his brothers and sisters are dead but have left lineal
descendants, such descendants and the mother take the property in equal share. (section 44
& 45)
4. If only the intestate’s mother is alive (Section 46)
(But there is no father, brother and sister or their descendants)The mother takes the whole.
5. If there is no father, no mother, no lineal descendants (section 47)
The brothers and sisters of intestate divide equally. The children of the deceased brother or
sister can represent him or her.
 6. If intestate has left none of above relatives (Section 48)
The property goes in equal shares to those relatives who are in nearest degree of the
kindred to the intestate.

SPECIAL RULES FOR PARSI INTESTATES (Section 50-55)

General Principles relating to Intestate succession among Parsis (Section 50)

For the purpose of Intestate succession among Parsis :

1. There is no distinction between posthomous child and the child born in the life time of the
deceased.
2. A lineal descendant of the intestate who died in the life time of the intestate is not to be
taken into account.
3. Where the widow (or widower) of any relative of intestate remarries, then she or he is not
entitled to receive any property of the intestate.

SHARES IN CASE OF PARSI INTESTATES

Rule 1: If a parsi dies leaving a widow and children, the widow and child gets equal share.

Rule 2: If such parsi has no widow, but only children, each child gets an equal share.

Rule 3: If a Parsi dies leaving one or both parents and children, each parent gets a share equal to
half the share of each child.

CASES

Solomon and ors. Vs. Muthiah and ors. (1974)1MLJ53 Chennai High Court

Decided On Nov-04-1970

the parties are syrian christians who lived in that part of the former travancore state which
now forms part of the state of tamil nadu, after the reorganisation of the states. the said
swaminathan died issueless on 29th may, 1960, survived by his widow muthammal.
muthammal is said to have executed two settlement deeds in favour of the appellants who
figured as defendants she died on 16th september, 1960. the plaintiffs who are the children
and grandchildren of isaac, brother of swaminathan, instituted o.s. no. 2 of 1961 on the file of
the court of the subordinate judge of nagercoil for partition
The learned District Judge by his judgment and decree dated 25th June, 1962 agreed with
the learned Subordinate Judge on the principal question as to whether it was the Travancore
Christian Succession Regulation II of 1092 that applied or the Indian Succession Act that
applied to the parties and held that on the application of the provisions of the Travancore
Christian Succession Regulation II of 1092

The principal question that arises in this case is, whether the parties were governed by the
Travancore Christian Succession Regulation II of 1092 or the Indian Succession Act of 1925.
Section 6 is as follows:

If immediately before the appointed day (which was 1st April, 1951), there is in force in any
Part B State any law corresponding to any of the Acts or Ordinances now extended to that
State, that law shall, save as otherwise expressly provided in this Act, stand repealed.

The plaintiff, and 9th defendant are merely his collaterals, the plaintiffs being children and
grandchildren of one brother and the 9th defendant being another brother of Swaminathan.
The provisions contained in Chapter II of Part V of the Indian Succession Act lay down the
rules in case of intestates and different rules have been provided to meet different
contingencies. Section 33-A (1) provides that where the intestate has left a widow but no
lineal descendants and the nett value of his property does not exceed five thousand rupees,
the whole of his property shall belong to the widow. Sub-section (2) of the same section
states:

Where the nett value of the property exceeds the sum of five thousand rupees, the widow
shall be entitled to five thousand rupees thereof and shall have a charge upon the whole of
such property for such sum of five thousand rupees, with interest thereon from the date of
the death of the intestate at 4 per cent. per annum until payment.

Section 33 states that save as provided by Section 33-A if the intestate had left no lineal
descendants, but had left a widow and persons who are of kindred to him, one half of his
property shall belong to his widow and the other half shall go to those who are of kindred to
him in the order and according to the rules provided for thereafter. In view of these
provisions, the nett value of the assets of Swaminathan has to be ascertained.

18. Under these circumstances, the second appeal is allowed and the judgments and decrees
of both the Courts below are set aside and the suit itself is remanded to the learned
Subordinate Judge, Nagercoil, for disposal in accordance with law and in the light of this
judgment holding that it is the provisions of the Indian Succession Act, 1925 that govern the
succession to the estate of Swaminathan.

CASE

Mary Roy and ors. Vs. State of Kerala and ors. - Court Judgment

Court Supreme Court of India

Decided On Feb-24-1986

Case Number Writ Petition (Civil) Nos. 8260 of 1983

part b states (laws) act 1951, the travancore christian succession act 1092 continues to
govern intestate succession to the property of a member of the indian christian
community in the territories originally forming part of the erstwhile state of travancore or is
such intestate succession governed by the indian succession act 1925 and if it continues
to be governed by the tranvacore christian succession act 1092, whether sections 24, 28
and 29 of that act are unconstitutional and void as being violative of article 14 of the
constitution. the legislative device of incorporation by reference is a well-known device
where the legislature instead of repeating the provisions of a particular statute in another
statue incorporates such provision in the latter statute by reference to the..........part b states
(laws) act 1951, the travancore christian succession act 1092 continues to govern
intestate succession to the property of a member of the indian christian community in the
territories originally forming part of the erstwhile state of travancore or is such
intestate succession governed by the indiansuccession act 1925 and if it continues to be
governed by the tranvacore christian succession act 1092, whether sections 24, 28 and 29
of that act are unconstitutional and void as being violative of article 14 of the constitution.
this question is of great importance because it affects the property rights of women belonging
to the indian christian community in the territories of the former state of travancore. it is
not necessary for the purpose of deciding this question to

The Schedule to this Act referred to several statutes and one of these statutes was
the Indian Succession Act, 1925. The expression 'the States', wherever occurring in
the Indian Succession Act, 1925 was substituted by the word 'India' and a new definition
was introduced in Clause (cc) of Section 2 of that Act defining 'India' to mean 'the territory
of India excluding the State of Jammu & Kashmir'. The effect of Section 3 read with the
Schedule was to extend the provisions of the IndianSuccession Act, 1925 to all Part-B
States including the State of Travancore-Cochin with effect from 1st April, 1951 which was
the appointed date under the Part-B States (Laws) Act, 1951. The question is as to what was
the impact of the extension of the Indian Succession Act, 1925 to the territories of the
State of Travancore - Cochin on the continuance of the Travancore
Christian Succession Act, 1092 in the territories forming part of the erstwhile State of
Travancore. Did the introduction of the Indian Succession Act, 1925 have the effect of
repealing the Travancore Christian Succession Act, 1092 so that from and after 1st April,
1951, intestate succession to the property of a member of the Indian Christian community
in the territories of the former State of Travancore was governed by
the Indian Succession Act, 1925 or did the Travancore Christian Succession Act, 1092
continue to govern such intestate succession despite the introduction of
the IndianSuccession Act, 1925? This question has evoked divergence of judicial opinion,
a single Judge of the Madras High Court taking one view while a Division Bench of the
Madras High Court as also the former Travancore Cochin High Court taking other view. We
shall proceed to consider which view is correct.

We are, therefore, of the view that on the coming into force of Part-B States (Laws) Act, 1951
the Travancore Cochin Succession Act, 1092 stood repealed and Chapter II of Part V of
the Indian Succession Act, 1925 became applicable and intestate succession to the
property of members of the Indian Christian community in the territories of the erstwhile
State of Travancore was thereafter governed by Chapter II of Part V of
the Indian Succession Act, 1925. On this view, it becomes unnecessary to consider
whether Sections 24, 28 and 29 of the Travancore Christian Succession Act, 1092 are
unconstitutional and void. We, therefore, allow the writ petitions and declare that
intestate succession to the property of Indian Christians in the territories of the former
State of Travancore is governed by the provisions contained in Chapter II of Part V of
the Indian Succession Act, 1925. There will be no order as to costs.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6935 of 2011

Decided On: 08.05.2018

Appellants: B.C. Singh (D) by L.Rs.

Vs.

Respondent: J.M. Utarid (D) by L.Rs.

B.C. Singh (D) by L.Rs. vs. J.M. Utarid (D) by L.Rs. (08.05.2018 - SC) : MANU/SC/0517/2018

The Appellant and his wife Dr. S.L. Singh were Christians, had purchased an immovable property
known as Capel Cottage. The wife of the Appellant invited the Respondents to stay at the said
Capel Cottage. The wife of the Appellant died. Thereafter an eviction suit was filed which was
dismissed by the trial court. On her death, Defendant No. 1, a distant kindred, succeeded to
1/4th share in the entire property. Therefore, the Plaintiff was not entitled for relief of
possession of the property nor was he entitled for any damages. The Appellant then filed a civil
suit for possession of property. The Trial Court dismissed the suit. . Dr. B.C. Singh has already half
share in the property by virtue of the sale deed dated 11.2.1952. He being the husband of Dr.
S.L. Singh would succeed half of the share in the property held by her as provided Under Section
33(b) read with Section 35 of the Act. Thus, he holds 3/4th share in the entire property. Now the
question is what should happen to the remaining 1/4th share in the property?

Section 47 provides for devolution of the property where intestate has left neither lineal
descendant, nor father, nor mother. The said Section is as under:

Section 47. Where intestate has left neither lineal descendant, nor father, nor mother.-Where
the intestate has left neither lineal descendant, nor father, nor mother, the property shall be
divided equally between his brothers and sisters and the child or children of such of them as
may have died before him, such children (if more than one) taking in equal shares only the
shares which their respective parents would have taken if living at the intestate's death.

An appeal was preferred wherein the Appellate Court reversed the order of the Trial Court. On
appeal the High Court held that the Respondent being kindred of the deceased wife entitled to
the share in the suit property. Hence, present appeal was preferred.

Held, while allowing appeal:

(i) The present Court noted that in case the intestate had not left a lineal descendant, nor father,
nor mother, the property should be divided equally between his brothers and sisters and the
child or children of such of them as may have died before him, such children taking equal shares
only the shares which their respective parents would have taken if leaving at the intestate death.
In the instant case, the wife had left behind her sister. She had not left behind any lineal
descendant. Her sister was the only near kindred and preferential heir of the intestate and she
would have succeeded to her share in the property. [18 ]

(ii) It was clear that when intestate had not left behind any lineal descendant and had only
kindred, the nearer kindred exclude the distant kindred. The first Respondent being a distant
kindred was not entitled to succeed any share in the property since the intestate had left behind
her real sister.
TESTAMENTORY SUCCESSION

WILLS

Definition: (section 2(h))

"Will" means the legal declaration of the intention of a testator with respect to his property
which he desires to be carried into effect after his death.

Essential characteristics of a will:

1. Legal declaration
2. Declaration should relate to the property of the testate
3. It must be intended to take effect after the death of the testator
4. It is revocable during the life time of the testator

Kinds of wills:

1. Nuncupative or oral will

It is one which has been declared by the person making it in the presence of witnesses. It
can only be made by Soldier, Airman and mariner. The burden of proof of establishing an
oral will is naturally quite heavy, and such a person would have to prove the exact words of
the testator.
2. Holograph will
It is a will written in the testators own hand. The fact that the testator has written the will in
his own hand-writing shows that he was fully aware and conscious of making such a will.
3. Inofficious will
In this testator bequeths all his property to a stranger, to the complete exclusion of his wife,
his children, and other relatives.
4. Mutual or reciprocal wills
Two persons are said to make a mutual wills when they confer reciprocal benifits upon each
other under their will, giving similar rights to each of the property.
5. Joint will
It is a single document in which separate properties or joint property of two or more
testators are disposed.
6. Contingent or Conditional will
It is a will made contingent upon happening of an event, so that if the event does not
happen, the will has no effect.
7. Duplicate will
A duplicate will is one of which two or more copies are made. If such a copy is signed by
testator, it can operate as original will.
8. Privileged will (section 65)
This will does not apply to a hindu, Buddhist, Sikh or Jain. Privilaged wills are those made by:
Any soldier being employed in an expedition or engaged in actual warfare, [or an airman
so employed or engaged, or any mariner being at sea, provided, if he has completed the
age of eighteen years.
9. Un Privileged will (Section 66)
All wills made by persons other than soldier, sailor and mariner is unprivileged will.