This article has been written by Mrs. Himanshi Goswami, a 2nd year student of Lloyd School of Law, Greater Noida

Abstract

The law of succession governs the devolution of property (the transfer of property from the owner to his lawful successors as a result of his death). In India, the rules governing inheritance are not consistent. A variety of laws are involved, and their applicability is dependent on a number of criteria, including the religion of the tribe or the parties’ domicile; groups or sects in the communities to which they belong; marital status of the parties; and the religion of the spouse. Intestate succession and Testamentary succession are the two types of succession. Testamentary succession or disposition by wills refers to a situation in which the dead leaves a will and the devolution of property occurs in accordance with his desires as indicated in his will. Intestate succession occurs when a deceased person dies (a) leaving behind property for which he did not leave a succession plan, i.e. a will, and (b) the transfer of property is for illegal or immoral reasons. In such cases, the dead’s property is devolved in accordance with the rules governing the succession of the deceased’s property, which in India is determined by the religion practised by the deceased at the time of death. 

Prior to the arrival of British authority in India, key rules of inheritance either had religious foundations or were heavily impacted by Personal rules that arose from traditions and religion. It wasn’t until the Indian Succession Act of 1865, which was subsequently superseded by the Indian Succession Act of 1925, that several communities in India (Christians, Jews, and Parsis) began to be regulated by codified rules.

The requirements of Sections 31 to 49 of the Indian Succession Act of 1925 apply to intestate succession. The requirements of Part VI of the Indian Succession Act of 1925 apply to testamentary disposal (for Christains and Jews). 

Introduction

Before delving into a discussion of the Christian Law of Succession, it is prudent to first define succession. In a nutshell, succession is the process by which the property of a deceased person passes to his heirs. This property may be inherited or purchased by the owner, and it may pass in two ways:

By Testamentary Succession, which occurs when the dead leaves a will naming certain successors to his property.

By Intestate Succession, the law controlling the deceased (according to his faith) comes in and defines how his estate will flow.

The Indian Succession Act, 1925

The deceased’s faith decides who inherits his estate. The Hindu Succession Act, 1956, for example, governs succession among Hindus. As a result, for succession purposes, Christians in general are controlled by the Indian Succession Act of 1925. S. 2(d) of the Act defines a “Indian Christian” as follows: “Indian Christian” means a native of India who is, or claims to be, of unmixed Asiatic heritage and practices any form of Christianity.

This was explained further in the case of Abraham v. Abraham, when the extent of this notion of a ‘Indian Christian’ was defined in terms of its practical use. This decision established that a Hindu who converts to Christianity is no longer subject to Hindu law (customary or otherwise), and any ongoing obligatory force that Hindu law may have exerted over him is relinquished. However, despite having converted from the old religion to the new one, he was plainly given the option of allowing the old law to continue to have an influence on him.

The original Indian Succession Act was established in 1865, and a fresh controversy emerged as to whether the convert might decide to be governed by the ancient law even within the terms of this new Act. The Privy Council later concluded in the case of Kamawati v. Digbijoy that the ancient legislation no longer applies to inheritance, i.e. succession. Following that, the Allahabad High Court reiterated in a recent 2001 decision that Hindu converts to Christianity will be bound solely by the succession laws governing Christians, including the Indian Succession Act, 1925, and will not be able to elect to be governed by the old law in this or related matters.

Intestate Succession Among Indian Christians

According to Section 30 of the Indian Succession Act, 1925, a person is assumed to die intestate in respect of all property over which he has not made a testamentary disposition capable of taking effect. Thus, any property that has not previously been gifted or assigned according to legal process shall, following the death of the owner, devolve according to the provisions outlined in Chapter II of the Act. It is important noting at this point that intestacy might be whole or partial. When the dead does not successfully dispose of any beneficial interest in any of his property by will, there is total intestacy. A partial intestacy occurs when the dead disposes of some, but not all, of the beneficial interest in his property by will.

The deceased’s domicile is important in deciding the mode of devolution of his possessions. “A person’s domicile is that country in which he either has or is deemed by law to have his permanent home,” Halsbury said. S.5 of the Act states unequivocally that succession to the deceased’s movable property will be governed by the law of the place where he had his domicile at the time of his death, whereas succession to his immovable property will be governed by the law of India (lex loci rei sital), regardless of where he had his domicile at the time of his death. Furthermore, S. 6 qualifies this rule by declaring that a person can only have one domicile for the purpose of succession to his moveable property. It should be emphasized that domicile and nationality are not the same thing; domicile refers to the person’s present location, whilst nationality refers to the person’s initial allegiance. S. 15 states that the wife immediately gets her husband’s residence upon and for the duration of marriage. S. 26 defines ‘collateral consanguinity’ as the occurrence of two people derived from the same stock or common ancestor but not in a direct line (for example, two brothers). It is worth noting that the law for Christians makes no distinction between relationships via the father and those through the mother. If the intestate’s kin on both the paternal and maternal lines are equally linked, they are all entitled to success and will participate equally. Furthermore, there is no distinction between full-blood/half-blood/uterine relatives; and a posthumous kid is considered as a child who was present when the intestate died, as long as the child was born alive and was in the womb when the intestate died. Christian law does not recognize children born outside of marriage; it only recognizes legal marriages. Furthermore, polygamous marriages are not permitted. However, a judgment has been reached that it does recognize adoption, and an adopted kid is regarded to have all the rights of a natural-born child, despite the fact that the legislation does not clearly state so. 

The Act’s Sections 33, 33-A, and 34 control succession to the widow. They agree that if the dead had both a widow and lineal descendants, she will get one-third of his wealth, while the remaining two-thirds will go to the latter. If no lineal offspring are left but other relatives are alive, the widow receives one-half of the estate and the remainder goes to the kindred. And if no kinfolk are left, his widow will get the entire estate. However, if the intestate has left a widow but no lineal offspring and the net worth of his property is less than five thousand rupees, the entire estate would belong to the widow – although this rule does not apply to Indian Christians.

If the widow is still alive, the lineal descendants will receive two-thirds of the estate; if she is not, they will receive the whole inheritance. Per capita (equal division of shares) applies if they are related to the dead in the same degree. This is in accordance with Sections 36-40 of the Act. Importantly, case law has established that a Christian’s heirs must take his property as tenants-in-common rather than joint tenants.

A will is a person’s declaration of wishes that he expects to be carried out only after his death. To form a legal will, a testator must have a testamentary intention, which means that he intends the intentions he expresses to take effect only after his death. Part VI of the Indian Succession Act of 1925 addresses testamentary succession. S. 59 states that any person of sound mind who is not a minor may dispose of his property by will. The explanations to this Section further broaden the scope of testamentary disposal of estate by saying unequivocally that married women, as well as deaf/dumb/blind people who are not consequently disabled to form a will, are all allowed to dispose of their property by will. The method also requires mental clarity and abstinence from alcohol or disease that renders a person incapable of comprehending what he is doing. Part VI of the Act has 134 Sections ranging from S. 57 to S. 191 that cover all aspects of wills and codicils, as well as their creation and enforcement, such as the ability to write a will, the formalities required for wills, legitimate bequests, and so on.

Conclusion

Several renowned Christian attorneys and legal scholars have stated that “laws concerning sensitive issues such as succession, etc. should reflect customs and practices for their acceptance and sustenance.” While the improvements brought about by the Indian Succession Act, 1925 in terms of women’s property rights have been welcomed, because “the majority of Christians do not seem to be opposed to giving equal share to women in the matter of intestate succession,” there is also a faint vein of resentment regarding the total repeal of the Travancore Christian Succession Act 1792, which was considered to be an overall well-balanced legislation. 

Because these issues are still present, it has become important to seek remedies in the constitutional framework. “While, in light of [the] distinction between legislative and judicial functions, the legislature cannot directly overrule, reverse, or override a judicial decision by a bare decision, without more, it may at any time, in exercise of the plenary powers conferred on it by Articles 245 and 246 of the Constitution, render a judicial decision ineffective by enacting a valid law on a topic within its legislative field fundamentally altering or changing with retrospective, curativ The Travancore-Cochin Christian Succession (Revival and Validation) Bill, 1996 was introduced with this in mind. Unfortunately, it appeared to be a rehash of the previous law rather than an arrangement for the validation of prior transactions, which is actually more essential. Indian Christians account for more than two crores of the country’s population. It is critical that their rights and wants be taken into account when laws are applied to their society.

References

 All Answers ltd, ‘Christian Law of Succession in Indian Law’ (Lawteacher.net, December 2023) <https://www.lawteacher.net/free-law-essays/property-trusts/christian-law-of-succession.php?vref=1> accessed 7 December 2023