Inheritance or succession points toward the idea of following a particular event
or object, places of series, however when we regard the term 'succession' in law
and concerning lineage it holds a completely different meaning and essence.
Every family looks up to succeeding the ancestral and acquired property by way
of the deceased through Will or as per the law, in case of no valid Will.
necessary to make readjustments of goods and things, which are left behind by
the deceased person, in a legal manner, and hence it is very important to have
legislation for succession matters as to who will own, in what proportion and
enjoy the goods and property after the death of the person.
So, the legal definition of 'succession' can be stated as partition or
redistribution of the property of the deceased among the legal heirs of the
deceased depending upon the prevailing law. The distribution can be either by
way of the deceased person's will, but there are situations where the Will is
not acceptable or invalid or not even present. Then in such cases, the property
needs to devolve among the family members of the deceased, thus there are set of
provisions made under each personal law, which are to be followed by the
respective classes, in case of no Will is made or found for devolution of
The provisions are inserted looking into the customary practices followed by
each class and what is better for the society as a whole, keeping the
unreasonable practices out of it, and finally, the legislation is enacted to
have a codified law for succession matters of each personal law. When we talk
about succession laws, there are some significant aspects which are covered
among these provisions, such as the proportionate distribution of assets among
the legal heirs, which relation is has to be preferred first among all and which
one has to be latter one, what will be the manner of distribution etc.
corporate entities such as companies, Firms have perpetual existence and do not
come under the scope of succession laws, their distribution of assets and
liabilities is handled by different provisions like winding up, reorganization
and closure etc.
Succession law concentrates on the devolution of property of a deceased person
and not of some company or firm. The law of succession focuses on devolution and
transmission of property whose rights are vested with one person (testator) at
that time and will be transferred to another person or persons. Succession can
be broadly divided into 2 forms, 'testamentary' succession (where there is a
valid Will) and 'intestate' succession, (where there is no Will). In the case of
intestate succession, then the property is distributed among the legal heirs of
the person, as per the law applicable to the succession (which is decided
depending upon the religion professed by the deceased person).
Testamentary succession means the estate of the deceased is distributed as per
the wish of the person mentioned in his Will, and the succession matters of both
testate and intestate for Christian and Parsis in India are governed by the
provision of the Indian Succession Act, 1925. The Act has defined an 'Indian
Christian' as a native of India who is and in good faith claims and appears to
be of Asiatic descent and professes the religion of Christianity. However, the
term 'Parsi' has not been defined under the Act.
Later in one of the judgments, the Bombay High Court, the term 'Parsi' was
defined and it was stated that the word 'Parsi' used in the Indian Succession
Act includes the Parsi Zoroastrians of India as well the Zoroastrians of Iran
and no other Zoroastrians. Thus, for referring to the succession laws of Indian
Christian and Parsi, it is mentioned under the Indian Succession Act 1925 that
the rules for testate succession are the same for both religions whereas the
rules differ for Intestate succession.
Intestate Succession Among Indian Christians
The devolution of an intestate's property in the case of Indian Christian
devolves upon the legal heirs of the deceased, and the specific order and
preference in which the property shall be devolved are stated in Chapter II,
part V of the Succession Act. All the relevant rules regarding the intestate
succession of Indian Christian are mentioned in the said part. Some of the
striking principles of devolution are as follows:
- If the deceased has some lineal descendants like more than one child or
some remote relatives then the share of the widow will be 1/3rd of the
property and the remaining 2/3rd shall be devolved upon its lineal
descendants. But in case, there are no lineal descendants but only the
parents of the deceased and other close relatives, then the widow shall be
getting � share of the property and the remaining half shall go to the close
kindred and parents of the deceased. And if there is no kindred found of the
deceased, then the entire estate shall devolve in favour of the widow. It should be noted that the rights
given to the widow will be the same for the husband, concerning the property of
his deceased wife.
- In cases, where there is no widow, then the property shall devolve to
his lineal descendants directly and if there are no lineal descendants(son/daughter
of deceased), then the property shall go into the hands of kindred of the
deceased in proportions and not completely, as laid down from section 41 to 48
of the Succession Act.
- Earlier, the Indian law didn't recognize the adoption, especially the
adoption by a Christian but in the case of Joyce Pushapalath Karkada Alias v.
Shameela Nina Ravindra Shiri, 2010, it was held by the Court that even an
adopted child has the right to succession as similar to the rights of a
natural-born child. There is no distinction made between the rights of adopted
or naturally born children.
- Even a posthumous child has the same rights as the other children,
stating as if he was born at the time of death of the intestate.
Laws for distribution of intestate's property
- Distribution of property where lineal descendants are present
(section 37 to 40)
The rules for distribution of the property of an intestate where the lineal
descendants are present is mentioned under section 37 to 40 of the Act. If
the deceased has left a widow/widower, then deducing the share of a widow
from the property, the remaining distribution among the legal heirs is as
- Section 37 states that, if only the deceased had only one child or
children and no further lineal descendants then the property shall be
divided equally among the surviving children of the deceased.
- Section 38 states that if there are no surviving children, but there is
a grandchild or grandchildren, then the property shall devolve entirely upon
the surviving grandchild or in the case of grandchildren, it shall be
- Section 39 of the Act states, that if there are only great-grandchildren
alive or some other lineal descendants in the same degree, then the property
shall devolve upon the great-grandchildren or the other remote lineal
descendants equally among the males and females.
- Section 40 states that, if the intestate has left lineal descendants but
not of the same degree of kindred, and those descendants through whom the
succession descended have already died, then the property shall be divided
into the equal shares concerning several lineal descendants of the intestate
who belong to the closest degree of the kindred of the intestate, who died
before the intestate, leaving their lineal descendants who have succeeded
For example: if A had three children, B, C and D, and B died in an accident
leaving behind 2 children, D also dies leaving behind one child and only C is
the surviving child of A, then the property shall be divided into 3 parts, one
part shall go to C (surviving child), one part to 2 children of B and the
remaining part to a single child of D.
- Distribution of property where there are no lineal descendants
(section 42 to 48)
Distribution and devolution of the property where there are no lineal
descendants of the intestate person are mentioned under sections 42 to 48 of
the Act. The person who dies without leaving any children or remote lineal
descendants behind, then the rules for distribution of property are marked
in order of preference and are as follows:
- Section 42 states that the Widow shall get � of the share and the father
of the deceased shall get the remaining half of the property, even if other
kindred are still present.
- Section 43 mentions that Widow shall get � share of the estate and if
there is no father, then the mother, brother and sister of the deceased
shall distribute the remaining � equally among themselves
- Section 44 states that the widow gets � of the share, and the mother,
brother, sister and children of any deceased brother or sister will be
getting the rest of the � share equally per stirpes
- Section 45 states that the widow gets half of the share and the mother
and children of the deceased brother or sister get the rest of the half
equally per stirpes
- Section 46 states that the widow shall get � share of the estate and if
only the mother is surviving then she will get the other � of the estate
- Section 46 states that the widow shall � of the share and if there is no
mother, then brother, sister and children of predeceased brother or sister
shall get the remaining half distributed equally per stirpes
- Section 47 mentions that if there are no parents and siblings, then the
widow gets � share and the rest of � shall be given to remote kindred of the
Intestate Succession among Parsis
The Parsi intestate is administered by the rules mentioned under Part V chapter
III of the Act and it states how the estate is distributed among the legal heirs
of the deceased. Sections 51 to 56 state about the intestate succession of
Parsis, the general rules of Parsi intestate succession are:
There is no share for a lineal descendant of an intestate who has died before
the death of the intestate, only if the remote issue of a predeceased child of
the intestate has left neither any widow nor widower, child or children nor any
widow of any lineal descendant of such predeceased child. If the predeceased
child of the intestate has any one of the abovementioned relations alive, then
that child's share shall be counted for the distribution of the estate. This is
mentioned under section 53 of the Act.
Further, it has been mentioned under section 53(b) of the Act, that if the
predeceased child is a daughter, then the widower shall not get any share but
the children of the predeceased daughter shall be receiving the share of their
mother, which has to distributed equally among them. And in case there is no
lineal descendant of a daughter, then her share won't be counted at all.
No share shall be given to any widow or widower of any relative of the intestate
if that person has remarried during the lifetime of the intestate. Although,
this rule has an exception that if the mother or paternal grandmother of the
intestate marries again during the lifetime of the intestate, then also they
will be entitled to share in the estate.
Testamentary Succession among Christians and Parsis
The testamentary succession of a person can be done by making a Will or Probate.
But the Will should be valid and the person making it, should be competent
enough to make it or else the Will is considered to be invalid. Some of the
important aspects of testamentary succession for the Christian and Parsis are:
- Persons who are capable of making a Will:
Every person who is of sound mind and is not a minor can make a Will to
dispose of his property. Hence, even a married woman or dumb, deaf or blind
person is capable of making a Will, if they have the knowledge of what are
doing and have the intention to do so. The competency of a person is the
same as mentioned under the Indian Contract Act, for example, a person who
is intoxicated or ill might not have the proper state of mind to make a
- Concept of Testamentary Guardian:
A father has been given the right to
appoint a guardian or even guardians by the Will for his child or children till
the child attains the age of majority.
- Revocation of Will by Testator's Marriage:
Section 69 of the Succession
Act, states that all the Wills shall be considered revoked by the marriage of
the Testator that takes place after the making of Will
- Privileged and Unprivileged Wills:
All the Wills that fulfil the terms
mentioned under section 63 of the Act, are known as the 'Unprivileged Wills' and
the wills that are made and executed u/s 66 of the Act are called 'Privileged
Section 63 states the essentials for a valid will that is:
- Every Will must have the signature of the Testator or his thumb
impression could be used as his mark or signed by a person who is directed
by the testator and in presence of the Testator.
- The Will should also be signed by at least 2 witnesses, who approve that
they have seen the testator sign the Will or affix his mark.
Section 66 states about the 'Privileged Wills' which can be made by persons who
are in Armed Forces. This privilege has been given to soldiers or airmen or even
mariners who are engaged in a war-like situation or an expedition involving
actual warfare. These men can give their Will either in writing or orally and it
is not necessary to have the signature of the Testator or even attestation by
anyone else on that Will.
In the case of Privileged wills, the mode and manner of making and executing a
Will shall be under Section 66 and it is comparatively less complicated than the
ordinary unprivileged Will.
Bequests to religious and charitable causes:
Section 118 talks about
the bequests that are made in favour of religious and charitable causes, but
this section applies only to the Christians and not Parsis.
The section states
that no man who is having a nephew or niece or any closer relative shall have
the power to donate his property to any religious or charitable uses except by a
Will that is executed not less than 12 months before his death and is submitted
within 6 months from its execution in someplace as stated in the law for the
safe custody of the Wills of the living persons. But this section was struck
down for being unconstitutional by the Apex Court and thus Christians and Parsis
have the right to leave their property for charity without being chained by the
In case of a Parsi person dying, probate is necessary and
needs to be issued if the Will is made or the property bequeathed under the Will
is located within the jurisdiction of the three presidencies Calcutta, Madras
and Bombay. Even if the Will is made outside the limits of these cities but the
property attached to the Will comes under the jurisdiction of these three cities
then also, probate has to be issued.
In the case of a dying Christian, it is not compulsory to obtain a Probate for
his Will. The will alone is sufficient.
Mutual Concepts Shared By Christian And Parsi Succession Law
There are certain common ideas concerning illegitimate children which are shared
and followed by both the communities in acquiescence.
The principles shared by both Christian and Parsis are:
- Both the communities, Christian and Parsi don't identify the rights of an
illegitimate child who is born out of wedlock and they give recognition to only
those children who are born from legitimate marriages. This was stated in the
case of Raj Kumar Sharma v. Rajinder Nath Diwan AIR 1987 Del 323. Thus, the
child who is born out of wedlock cannot claim any rights over the succession
from his biological parents into the Christian and Parsi law. The community
gives importance to relations running from lawful wedlock only.
- The Christian and Parsi succession laws don't make any distinction between
the relations through the father or mother. In cases where there are both,
paternal and maternal relations found of the intestate person, all the relations
shall be liable for an equal share of the estate distributed in an equal manner.
Further, Christians and Parsis also don't make any discrimination when it comes
to full blood/ half-blood/ uterine relations and even a posthumous child is
considered as a child who was present while the person died intestate on the
condition that he was already conceived and was in the womb and is born alive.
Thus, from the above content, it can be summarized that the succession laws of
Christians and Parsis are very much similar to the Hindu succession law,
especially the testamentary succession which is the same for Christian, Parsis
and even Hindus, except for Mohammad people. Although, the intestate succession
differs drastically from religion to religion, even though the basic idea of
intestate succession revolves around the devolution of property among the legal
heirs of the intestate.
But whom all come under the category of legal heirs and
what will be the preferential order of the heirs is decided by the respective
personal law which the intestate was professing at the time of his/her death.
Hence, it is very important to know the religion followed or professed by the
person who died intestate, to apply the relevant succession law over his goods
and property. India is a country with multiple religions in force, and each one
of them has been given equal recognition in our fundamental rights but keeping
track of different succession laws can be tiresome and even cause confusion,
thus it would be a better option if a uniform law of succession is followed
throughout the country to keep it simple for the entire population as well as
the law enforcers.