Succession law for Indian Christians
The Indian Succession Act, 1925, that governs the subject of succession for Christians recognises three types of heirs; the spouse, the lineal descendants, and the kindred.
THE LAW of succession applicable to Christians in India is the somewhat archaic and anachronistic Indian Succession Act of 1925.
The reason I use the terms archaic and anachronistic is because this is one of those laws, which have clearly been drafted by a colonial mind and which makes invidious distinctions between Indians and Britishers. And somehow, this relic of our inglorious colonial days has survived after independence, governing the rights of Christians in India. There is a separate definition of the term "Indian Christian" which is itself repugnant. Then, there are separate and onerous rules applicable to Christians who leave behind a will, while the rest of India seems to have moved on to a more liberalised and pragmatic legal regime insofar as wills are concerned. Anyhow, this aspect of the law is beyond the scope of this article, and I shall touch upon it only insofar as it is necessary for the purpose of our present discussion.
I propose to focus on the law of intestate succession, that is to say, the law applicable to the estate of a Christian living in India, who dies without leaving a will.
Firstly, a person is deemed to have died "intestate" (without leaving a will) in respect of any properties of his, which are not covered by a valid will.
Secondly, Indian Christians can enter into the now fashionable pre-nuptial agreements by which spouses agree not to succeed to the other's estate upon the other's death. However, the only difference is that while today's pre-nuptial agreements can be equally applicable to both parties, the pre-nuptial agreements covered by the archaic Succession Act, applies only to women. That is to say, if a Britisher were to marry an Indian lady (who was Christian) he could make her sign a pre-nuptial agreement by which she would not succeed to any of his properties upon his death, but he would not be bound by any such agreement. As you can imagine, the British men exploited this clause to the hilt.
Thirdly, the law recognises three types of heirs; the spouse, the lineal descendants, and the kindred. The list of the relatives who fall into the category of "Kindred" is very large and is exhaustively listed in a Schedule which accompanies this Act.
The widow of a Christian male takes a specified share, which depends on who the other succeeding relatives of the deceased male are.
If the heirs of the deceased are the widow and lineal descendants, then, the widow receives a one-third share, while the balance goes to the lineal descendants.
For instance, if a Christian male dies, leaving behind a widow and children, the widow takes one third and two-thirds goes to the children.
If the heirs of the deceased are the widow and the kindred, then, the widow receives a one-half share while the balance goes to the kindred. Needless to say, the presence of lineal descendants completely excludes the kindred from the sharing in the estate.
If there are neither lineal descendants nor kindred, then, the entire property goes to the widow.
If the deceased has not left behind a widow, but only lineal descendants, then, the entire estate goes to the lineal descendants. Since the lineal descendants exist, the presence or otherwise of the kindred is irrelevant.
If the deceased has left behind neither a widow, nor any lineal descendants, but only kindred, then, the entire property goes to the kindred.
If the deceased has left behind neither a widow, nor any lineal descendants, nor any kindred, then, the entire property lapses to the Government.
A widower has the same rights as a widow (excepting the risk of being excluded by a cleverly drafted pre-nuptial agreement).
The rule of sharing as between lineal descendants is also important. If all the lineal descendants are children, then, they will receive equal shares in the estate (after deduction of the share of the widow, if any). Likewise, if there are no children but only grandchildren, then, all grandchildren will take shares equally. Please note that it makes no difference as to whether one branch has produced more grandchildren than the other. All take equally. Where the deceased has left behind lineal descendants of different degrees of remoteness, as for example in the case of children and grandchildren, then, the number of branches becomes important. Each branch of lineal descendants takes equal shares in the property.
As amongst the kindred, the father of the deceased has the highest priority. If a deceased has left behind no lineal descendant but only a father and other kindred (such as mother, brother, sister etc.), then, the father succeeds to the entire property (subject of course to the share of the widow, if any).
If there are no lineal descendants or a father, then, the deceased's mother, brothers, and sisters share equally. The law of course goes on to prescribe with even greater complexity other rules of sharing, but those are beyond the realm of this column.
These then are the rules applicable to intestate succession of an Indian Christian.
(The author holds a Master's Degree in Corporate Law from New York University and is a partner in the law firm Sridevan and Krishnaswami, Chennai)
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