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CHRISTIANS AND JEW SUCCESSION.

(Indian Succession Act, 1925)

QUESTION BANK

 Q.1.   Explain the succession among Christians and Jews.

 Q.2.   Explain the rules of succession applicable to the persons who are not
Hindus, Muslims, Sikhs or Jain.

Q.3. Explain the meaning of ‘Intestacy’. Discuss the rules for the distribution of
property of instatestate other than Parsi.

SHORT NOTES.

1. Christian Succession.

SYNOPSIS.

1. INTRODUCTION.
2. INTESTATE SUCCESSION.

III.    RULES IN CASE OF INTESTATE SUCCESSION OTHER THAN

        PARSIS [i.e. Applicable to Christians    and Jews etc].

1. Order of devolution of such property.
2. Widow Only-
3. Widow and any lineal descendant-
4. Widow and kindred but no lineal descendants-
5. B) Rules of distribution of intestate’s property where there are lineal

           descendants. [Ss. 36 to 40].

1. Where intestate has left child or children only [S. 37].
2. Where intestate has left no child, but grandchild or grand children (S. 38). 3. Where intestate has left only great-grand-children or remoter descendants in equal degree (S. 39).
3. Where intestate leaves lineal descendants not all in the same degree of kindred (consanguinity) to him, (and those through whom the more remote are descendant are dead) S. 40.
4. C) Rules of distribution of intestate’s property, where there are no lineal

          descendants (Ss. 41 to 48).

1. Where intestate’s father living (S. 42).
2. Where intestate’s father is dead, but his mother, brother and sisters living (S. 43).
3. Where intestate’s father is dead and his mother, a brother or sister and

children of any deceased brother or sister living (Ss. 44 and 45).

4. Where intestate’s father is dead, but his mother is living and no brother, sister, nephew or niece (S. 46).
5. Where intestate has left neither lineal descendant, nor father, nor mother

     (S. 47).

6. Where intestate has left neither lineal descendant, nor parent, nor brother, nor sister (S. 48).

 I.       INTRODUCTION.

                     Indian Succession Act of 1925 provides for the succession of the Christians and Jews. It has been provided from Ss. 29 to 46. These provisions do not expressly state that they apply to ‘Christians’ and ‘Jews’. However, it is impliedly provided under the Act. The Act also provides that this part (i.e. the Part of Intestate Succession) shall not apply to the intestate or testamentary succession of any Hindu, Muslim, Sikh or Jain. In other words, these provisions apply to Indian Christians, Europeans, Jews, etc. This Act does not apply to Hindus, Muslims, Sikhs or Jains because they have personal laws to govern their succession. Before the passing of this Act, there was no existing law to govern succession among Indian Christians, Europeans, Jews, etc.

II.      INTESTATE SUCCESSION[1].

                     A person is deemed to die intestate in respect of all properties of which he has not made testamentary disposition, which can take effect (S. 30).

                    In other words, the person is said to have died intestate when he dies without making a ‘will’ to dispose of his property.

Illustration.

(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 as his executor, but the will contains no provision as to the distribution of actual property. 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.

(iv)     A has bequeathed Rs. 1,000 to B and Rs. 1,000 to the eldest son of C and has made no other bequest. He dies, leaving a sum of Rs. 2,000 and no other property. C died before A without having ever had a son. A has died intestate in respect of the distribution of Rs. 1,000.

          Thus, from the above illustrations, it can be said that the person died intestate-

1. Where he has made no testamentary disposition at all, or
2. where he has made a testamentary disposition, but the same is not valid, or

iii. where he has left part of the property without testamentary disposition.

          Thus, there may be total or partial intestacy. The succession applied in such circumstances is called ‘testamentary succession’.

III.     RULES IN CASE OF INTESTATE SUCCESSION OTHER THAN PARSIS [i.e. Applicable to Christians and Jews, etc.].

A. Order of devolution of property.

                    Where the intestate has left-

1. Widow Only- She takes the whole of the deceased husband’s property.

2. Widow and any lineal descendant- Widow takes 1/3, and the remaining 2/3 goes to lineal descendants (such as son, daughter etc.).

3. Widow and kindred but no lineal descendants- Widow takes ½, and other ½ goes to kindred.

Provided-

(Note- This provision is in addition and without prejudice to her abovementioned share).

i- If the net value of the property left does not exceed Rs. 5000- the widow takes the whole property.

ii- if the net value of the property left exceeds Rs. 5000- the widow is entitled to Rs. 5000 thereof, and (if not paid) she 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% p.a. until payment. The rest of the property shall be divided among heirs, including the widow (in the ratio referred to above).

iii- No widow-

                    Where the intestate has left no widow, his property shall go to his lineal descendants. In the absence of the lineal descendent, to his kindred, and in the absence of them, to the Government.

The above-mentioned rules apply to the widower’s share if the intestate is a wife.

B) Rules of distribution of intestate’s property where there are lineal descendants. [Ss. 36 to 40].

                    The rules for distributing the intestate’s property (after deducting the widow’s share, i.e. 1/3, if he has left a widow) amongst his lineal descendants shall be those contained in Ss. 37 to 40. [S. 36].

1. Where intestate has left a child or children only [S. 37].

          Where the intestate has left surviving him a child or children but no more remote lineal descendant through a deceased child, the property shall belong to his surviving child, if there is only one, or shall be equally divided among all his surviving children.

Illustration.

If A dies, leaving three children, B, C and D (and no children of any predeceased child). After the widow’s share (one-third) is given to the widow (if she is surviving), the balance 2/3 will be equally divided between B, C and D.

In Mandatory Khin V. M Ahmad[2]

Court Held– The term ‘child’ or ‘children’ under this section includes both male and female legitimate children or children but does not include adopted child or children.

2. Where intestate has left no child but a grandchild or grandchildren (S. 38).

                    Where the intestate has not left surviving him any child but has left a grandchild or grandchildren (and no more descendants through deceased grandchildren), the property shall belong to the surviving grandchild if there is only one or shall be equally divided among all his surviving grandchildren.

Illustrations.

(i) A has three children (and no more), John, Mary and Henry. They all die before the father, John, leaving two children, Mary, three and Henry, four. Afterwards, A dies intestate, leaving those nine grandchildren (and no descendant of any deceased grandchild). Each of his grandchildren will have one-ninth.

(ii)      But if Henry has died, leaving no child, the whole is equally divided between the intestate five grandchildren, the children of John and Mary.

3. Where intestate has left only great-grand-children or remoter descendants in equal degree (S. 39)[3]–

                    The same rule as stated above in S. 38 applies. Such distribution, in the technical sense, is called per capita.

4. Where intestate leaves lineal descendants not all in the same degree of kindred (consanguinity) to him, (and those through whom the more remote are descendants are dead) S. 40[4].

In such cases, the rule of succession prevails by stripes (i.e. representative principle).

Illustrations

(i)       A had three children. John, Mary and Henry. John died leaving four children, Mary died leaving one, and Henry alone survived the father. On the death of A intestate, one-third is allotted to Henry, one-third to John’s four children and the remaining third to Mary’s one child.

(ii)      A left no child but left eight grandchildren and two children of the deceased grandchild. The property is divided into nine parts, one of which is allotted to each grandchild, and the remaining one-ninth is equally divided between the two great-grand-children[5].

C) Rules of distribution of intestate’s property, where there are no lineal descendants (Ss. 41 to 48).

                    Where an intestate has left no lineal descendants, the rules for distributing his property (after deducing the widow’s share, i.e. ½, if he has left a widow) shall be those contained in Ss. 42 to 48.

1. Where intestate’s father is alive (S. 42).

          He shall succeed to the property even by exclusion to intestate’s mother, i.e. his wife.

2. Where intestate’s father is dead, but his mother, brother and sisters are alive (S. 43).

                    They all will succeed in the property in equal shares.

Illustration

He dies intestate, survived by his mother and two brothers of full blood, John and Henry, and a sister, Mary, who is the daughter of his mother but not of his father. The mother takes one-fourth, each brother takes one-fourth, and Mary, the sister of the half-blood, takes one-fourth.

3. Where intestate’s father is dead and his mother, brother or sister and children of any deceased brother or sister living (Ss. 44 and 45).

                    The mother, brothers, and sisters of the intestate will succeed equally, but the children of the deceased brother or sister represent the parent and take the share, which their parent would have taken if alive.

Illustration

A an intestate leaves his mother, his brothers, John and Henry, and also one child of a deceased sister, Mary, and two children of George, a deceased brother of the half-blood who was the son of his father but not of his mother. The mother takes one-fifth, John and Henry each take one-fifth, the child of Mary takes one-fifth, and the two children of George divide the remaining one-fifth equally between them[6].

4. Where intestate’s father is dead, but his mother is living and has no brother, sister, nephew or niece (S. 46).

                              The mother will take the whole property.

5. Where intestate has left neither lineal descendant nor father or mother (S. 47).

                    The property shall be divided equally between his brothers and sisters. The children of a deceased brother or sister can represent him or her.

6. Where intestate has left neither lineal descendant, nor parent, nor brother, nor sister (S. 48).

                    His property shall be divided equally among those of his relatives who are in the nearest degree of kindred to him.

Illustrations

(i)       A, the intestate, has left a grandfather, grandmother and no other relative standing in the same or a nearer degree of kindred to him. Being in the second degree, they will be entitled to the property in equal shares, exclusive of any uncle or aunt of the intestate, uncles and aunts being only in the third degree.

(ii)      A, the intestate, has left a great grandfather, a great grandmother, uncles, aunts, and no other relative standing in the same or a nearer degree of kindred to him. All of these, being in the third degree, will take equal shares[7].

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[1] मृत्युपत्र न करता मयत झालेल्याच्या मिळकतीचे वाटप [बेवसीयत उत्तराधिकार]

[2] AIR 1934 Rang. 72.

[3] फक्त पणतू असले तर किंवा दूरचा वंषज [जहां निर्वसीयत ने समान डिग्री में केवल परपोते या दूर के वंशज छोड़े हों]

[4] जर वंशज जिवंत असतील परंतु ते एकाच प्रकारचे नसतील [जहां निर्वसीयत वंशागत वंशज छोड़ता है, सभी उसके समान रिश्तेदारी (रक्त संबंध) में नहीं होते हैं, (और जिनके माध्यम से अधिक दूरस्थ वंशज मर जाते हैं)]

[5] (iii) A has three children. John, Mary and Henry. John dies leaving four children and one of John’s children dies leaving two children. Mary dies leaving no child. A afterwards dies intestate. One-third of his property is allotted to Henry, one-third to Mary’s child, and one-third is divided into four parts, one of which is allotted to each of John’s three surviving children, and the remaining part is equally divided between John’s two grandchildren.

(iv) A has two children, and no more, John and Mary. John dies before his father, leaving his wife pregnant. Then A dies leaving Mary surviving him, and, in due time a child of John is born. A’s property is to be equally divided between Mary and the posthumous child.

[6] A, an intestate, leaves no brother or sister, but leaves his mother and one child of a deceased sister, Mary and two children of a deceased brother, George. The mother takes one-third, the child of Mary takes one-third, and the children of George divide the remaining one-third equally between them.

[7] (iii) A, the intestate, left a great grandfather, an uncle and a nephew, but no relative standing in a nearer degree of kindred to him. All of these being in the third degree will take equal shares.

(iv) Ten children of one brother or sister of the intestate, and one child of another brother or sister of the intestate, constitute the class of relatives of the nearest degree of kindred to him. They will each take one-eleventh of the property.