Christian Law of Succession in Indian Law

Introduction

Every law of succession defines the rules of distribution of property in case a person dies without making a will. The Christian Law of Succession is governed by the provisions in the Indian Succession Act, 1925. However, with respect to Indian Christians, the diversity in inheritance laws is greatly intensified by making domicile a criterion for determining the application of laws. Till January 1986, Christians in the State of Kerala were governed by two different Acts – those domiciled in Cochin were subject to the application of the Cochin Christian Succession Act, 1921, while the Travancore Christians were governed by the Travancore Christian Succession Act, 1916. These two Acts have now been repealed and the Christians following these laws earlier are now governed by the general scheme of inheritance under the Indian Succession Act, 1925. However, Protestant and Tamil Christians, for example, living in certain taluks, are still governed by their respective customary laws. Christians in the State of Goa and the Union Territories of Daman and Diu are governed by the Portuguese Civil Code, 1867, while those in Pondicherry could be governed by the French Civil Code, 1804 (such Christians are known as “Renocants”), customary Hindu law, or the Indian Succession Act.

Despite these variances, the overall law for Indian Christians in effect is the Indian Succession Act of 1925, which will be dealt with in this project. It has been deemed “somewhat archaic and anachronistic” by certain legal experts, but it continues to be the only firm law in this regard. This Act recognises three types of heirs for Christians: the spouse, the lineal descendants, and the kindred.

Basic Principles Of The Christian Law Of Succession

The Concept Of Succession

Before venturing into a discussion on the Christian Law of Succession, we would do well to first make a preliminary study of what exactly succession is. Succession, in brief, deals with how the property of a deceased person devolves on his heirs. This property may be ancestral or self-acquired, and may devolve in two ways:

1. By Testamentary Succession, i.e. when the deceased has left a will bequeathing his property to specific heirs
2. By Intestate Succession, i.e. when the deceased has not left a will, whereby the law governing the deceased (according to his religion) steps in, and determines how his estate will devolve.

The Indian Succession Act, 1925

The religion of the deceased determines the succession to his estate. For example, succession among Hindus is governed by the Hindu Succession Act, 1956. As such, Christians in general are governed by the Indian Succession Act of 1925 for succession purposes.

S. 2(d) of the Act defines an “Indian Christian” hereby: “Indian Christian” means a native of India who is, or in good faith claims to be, of unmixed Asiatic descent and who professes any form of the Christian religion.

This was further clarified in the case of Abraham v. Abraham where the scope of this definition of an ‘Indian Christian’ was delineated with regard to its actual working. This case laid down that a Hindu who has converted to Christianity shall not be governed by Hindu law (customary or otherwise) anymore, and any continuing obligatory force that the Hindu law may have exercised upon him stands renounced. However, he was clearly given the option to permit the old law to continue to have an effect on him, despite having converted out of the old religion into the new one.

In 1865, the original Indian Succession Act was passed and a new question arose as to whether, even under the provisions of this new Act, the convert could elect to be governed by the old law. In the case of Kamawati v. Digbijoy thereafter it was held by the Privy Council that the old law ceases to be applicable with regard to inheritance i.e. succession. Thereafter in a recent 2001 judgement, the Allahabad High Court reiterated that Hindu converts to Christianity will be bound solely by the succession laws governing Christians, inclusive of the Indian Succession Act, 1925, and it will not be possible for them to elect to be governed by the old law in this or related matters.

Will, however, the incidents of the joint family (in the case of those converting out of the Hindu religion) continue to apply? The Courts in this regard have not been able to reach a uniform conclusion. In the case of Francis v. Gabri the Bombay High Court held that if a family were to convert out of Hinduism into Christianity, the coparcenary rights of that family would remain untouched. But the Madras High Court held in the case of Francis v. Tellis that the effect of conversion out of Hinduism would be to render all coparcenary rights thenceforth individual rights. In this case, out of two brothers, one of them converted to Christianity. It was held that upon his death it would not be possible for the other brother to succeed to the entire estate by way of the doctrine of survivorship.

Intestate Succession Among Indian Christians

S. 30 of the Indian Succession Act, 1925 defines intestate succession thus: 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. Thus any property which has not already been bequeathed or allocated as per legal process, will, upon the death of the owner, insofar as he is an Indian Christian, devolve as per the rules contained in Chapter II of the Act. It would be worthwhile to note at this point that intestacy is either total or partial. There is a total intestacy where the deceased does not effectively dispose of any beneficial interest in any of his property by will. There is a partial intestacy where the deceased effectively disposes of some, but not all, of the beneficial interest in his property by will.

Domicile

The Domicile of the deceased plays an integral role in determining the method of devolution of his property. Halsbury defined ‘domicile’ thus: “A person’s domicile is that country in which he either has or is deemed by law to have his permanent home.” S.5 of the Act categorically states that succession to the movable property of the deceased will be governed by the lex loci as per 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), no matter where he was domiciled at the time of his death. Also, S. 6 further qualifies this provision by stating that a person can have only one domicile for the purpose of succession to his movable property. It must be noted that domicile and nationality differ from each other – domicile deals with immediate residence, whereas nationality implies the original allegiance borne by the person. S. 15 lays down that upon and during subsistence of marriage, the wife acquires the domicile of her husband automatically.

Kindred Or Consanguinity

S. 24 of the Act makes an initial reference to the concept of kindred and consanguinity, defining it as “the connection or relation of persons descended from the same stock or common ancestor.” S. 25 qualifies ‘lineal consanguinity’ with regard to descent in a direct line. Under this head fall those relations who are descendants from one another or both from the same common ancestor. Now, succession can be either ‘per capita’ (one share to each heir, when they are all of the same degree of relationship) or ‘per stirpes’ (division according to branches when degrees of relationship are discrete). For Christians, if one were to claim through a relative who was of the same degree as the nearest kindred to the deceased, one would be deemed to stand in the shoes of such relative and claim ‘per stirpes.’

S. 26 qualifies ‘collateral consanguinity’ as occurring when persons are descended from the same stock or common ancestor, but not in a direct line (for example, two brothers). It is interesting to note that the law for Christians does not make any distinction between relations through the father or the mother. If the relations from the paternal and maternal sides are equally related to the intestate, they are all entitled to succeed and will take equal share among themselves. Also, no distinction is made between full-blood/half-blood/uterine relations; and a posthumous child is treated as a child who was present when the intestate died, so long as the child has been born alive and was in the womb when the intestate died.

Christian law does not recognise children born out of wedlock; it only deals with legitimate marriages. Furthermore it does not recognise polygamous marriages either. However, a decision has been made to the effect that it does recognise adoption and an adopted child is deemed to have all the rights of a child natural-born, although the law does not expressly say so.

The law of intestate succession under S. 32 states that: The property of an intestate devolves upon the wife or husband or upon those who are of the kindred of the deceased, in the order and according to the rules hereinafter contained in this Chapter. However, as aforementioned, the Act recognises three types of heirs for Christians: the spouse, the lineal descendants, and the kindred. These shall be dealt with now.

Rights Of The Widow And Widower

S. 33, S. 33-A, S. 34 of the Act govern succession to the widow. Together they lay down that if the deceased has left behind both a widow and lineal descendants, she will get one-third share in his estate while the remaining two-thirds will go to the latter. If no lineal descendants have been left but other kindred are alive, one-half of the estate passes to the widow and the rest to the kindred. And if no kindred are left either, the whole of the estate shall belong to his widow. Where, however, the intestate has left a widow but no lineal descendants, and the net value of his property does not exceed five thousand rupees, the whole of the property will go to the widow – but this provision does not apply to Indian Christians.

S. 35 lays down the rights of the widower of the deceased. It says quite simply that he shall have the same rights in respect of her property as she would in the event that he predeceased her (intestate).

Rights Of Children And Other Lineal Descendants

If the widow is still alive, the lineal descendants will take two-thirds of the estate; if not, they will take it in whole. Per capita (equal division of shares) applies if they stand in the same degree of relationship to the deceased. This is as per Sections 36-40 of the Act. Importantly, case law has determined that the heirs to a Christian shall take his property as tenants-in-common and not as joint tenants.

Also, the religion of the heirs will not act as estoppel with regard to succession. Even the Hindu father of a son who had converted to Christianity was held entitled to inherit from him after his death.

As per S. 48, where the intestate has left neither lineal descendant, nor parent, nor sibling, his property shall be divided equally among those of his relatives who are in the nearest degree of kin to him. If there are no heirs whatsoever to the intestate, the doctrine of escheat can be invoked by the Government, whereupon the estate of the deceased will revert to the State.

Testamentary Succession Among Indian Christians

A will is the expression by a person of wishes which he intends to take effect only at his death. In order to make a valid will, a testator must have a testamentary intention i.e. he must intend the wishes to which he gives deliberate expression to take effect only at his death.

Testamentary Succession is dealt with under Part VI of the Indian Succession Act, 1925. According to S. 59, every person of sound mind, not being a minor, may dispose of his property by will. The explanations to this Section further expand the ambit of testamentary disposition of estate by categorically stating that married women as also deaf/dumb/blind persons who are not thereby incapacitated to make a will are all entitled to disposing their property by will. Soundness of mind and freedom from intoxication or any illness that render a person incapable of knowing what he is doing are also laid down as prerequisites to the process.

Part VI of the Act encompasses 134 Sections from S. 57 to S. 191, that comprehensively deal with all issues connected with wills and codicils, and the making and enforcing of the same, including capacity to make a will, formalities needed for wills, bequests which can be validly made etc.

Conclusion And Suggestions

It has been argued by several prominent Christian lawyers and legal writers that “laws with regard to touchy issues like succession, etc. should reflect customs and practices for their acceptance and sustenance.” While the improvements introduced by the Indian Succession Act, 1925 with regard to women’s property rights have been welcomed, since “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 with regard to the total repeal of the Travancore Christian Succession Act 1792 since it was considered to be an overall well-balanced legislation.

As these problems are still alive, it has become necessary to look for some solutions in the constitutional context. “While in view of [the] distinction between legislative and judicial functions, the legislature cannot by a bare decision, without more, directly overrule, reverse or override a judicial decision, 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, curative, or neutralising effect the conditions on which such decision is based.” With this in mind, the Travancore-Cochin Christian Succession (Revival and Validation) Bill, 1996 was put forth. Unfortunately, all it looked to was a rehashing of the earlier law, and not an arrangement for the validation of past transactions, which is in fact more significant.

Indian Christians number more than 2,00,00,000 – two crores – of the population of this country. It is important that their rights and wishes be considered with regard to application of laws to their community.

Bibliography

Articles

• Champapilly, Sebastian, “Christian Law of Succession and Mary Roy’s Case,” (1994) 4 SCC (Jour) 9
• Champapilly, Sebastian, “Reforms in Christian law of succession in India,” (1999) 4 SCC (Jour) 7

Books

• Basu, N.D., “Law of Succession”; Bakshi, P.M.(rev.), 6th ed. 1998, Asoka Law House, New Delhi
• Diwan, Paras and Diwan, Peeyushi, “Family law,” 4th ed. 1998, Allahabad Law Agency, Faridabad
• Diwan, Paras, “The Law of Intestate and Testamentary Succession”, 1st ed. 1991, IInd ed. 1998, Universal law Publishing Co. , Delhi
• Mitra, “Law of Joint Property and Partition”; Mallick, M.R. (rev.), 4th ed. 1998, Kamal Law House, Calcutta
• Parry & Clark, “The Law of Succession,” 10th ed. 1996 (2nd imp. 1997), Sweet & Maxwell, London
• Rao, G.C.V. Subba, “Family Law in India”; Rao, T.V. Subba and Kumar, Vijender, (rev.), 8th ed. 2004, S. Gogia and Co., Hyderabad
• Saxena, Poonam Pradhan, “Family Law Lectures,” 1st ed. 2004, Lexis-Nexis (Butterworths), New Delhi
• Sen, D.N., “Indian Succession Act, 1925”; Gupta, S.P. Sen (eds.), 4th ed. 2002, Kamal Law House, Calcutta