Introduction to The Indian Succession Act, 1925

The term “succession” ordinarily means the transmission of the property and the transmissible rights and obligations of the deceased. The property may be ancestral or self-acquired property may devolves in two ways i.e., a) By testamentary succession i.e., the deceased died by executing will bequeathing his properties to specific heirs and b) By intestate succession when the deceased died intestate without executing Will or any deeds. The transmission could either be by way of a will or by the operation of law. Every law of succession defines the rule of distribution of property in case a person dies without making any Will. The property of the deceased person devolves upon the heirs. The law on testate succession is governed by the Indian Succession Act, 1925 for all communities except Muslims. However, certain sections of this Act are applicable to testamentary succession by Muslims also. The law in relation to making of wills by Muslims is governed by the relevant Muslim Shariat Law as applicable to the Shias and the Sunnis. The law on intestate succession for different communities in India is as under:

• For Hindus, Sikhs, Buddhists and Jains: Hindu Succession Act, 1956
• For Muslims: Muslim Law (which is not codified and is different for Shias and for Sunnis)
• For Christians, Parsis, Jews and any community other than Hindus, Muslims, Sikhs, Buddhists and Jains: Indian Succession Act, 1925.

Succession laws in India had their origin in religion. Thus, we find that in the late 19th century, succession was determined on the basis of customary practices and religious laws. There were, therefore, specific rules within the scheme of religious laws and texts for the devolution of proprietary rights for Hindus and Muslims. While these rules were ambiguous due to conflicting interpretations of religious texts, regional variations in practice, and synergetic influences of cultural commixture, the fact still remained that there were specific criteria on the basis of which devolution and succession could be governed.

Historical Background:

A considerable uncertainty prevailed in the period before 1865 about the law applicable in case of persons belonging to communities other than Hindus and Muslims. Before 1865, the Hindus and Muslims were governed by their respective personal laws, in matters of inheritance and succession. But the position was obscure in relation to other persons – for example, Anglo-Indians, Parsis, Jews, Armenians, Christians, and others. In general, the English law was applied in the Presidency towns, but the position as regards the Moffusil was not very clear. It is this prevalence of obscurity that was in fact, referred to by Sir Henry Maine, while introducing the Bill that led to the Succession Act of 1865. The law defining the rights and obligations of non-Hindus and non-Muslims was thus in extremely confused position. In the Presidency towns, the English Law was applied to members of just mentioned communities. Outside the presidency towns, most of the courts in the Mofussil came to apply under the phrase “Justice, equity and good conscience” in all cases not provided for by the legislature, the substantive personal law of the particular person. The First Law Commission in 1835, thus recommended that the English Law should be declared to be the law applicable to such persons – a recommendation that was not accepted. The Second Law Commission of 1853 did not favour introduction of English Law, but it viewed it desirable to assimilate law as was prevailing throughout the country. However, the Third Law Commission submitted draft of the Indian Succession Act, 1865. Finally, came the Act of 1865. The Act, dealt with succession, both testamentary and intestate. The Act exempted Hindus and Muslims from its scope, but the utility of the Act lay in the codification of law of succession as regards other persons.

The Indian Succession Act, 1865 that was based on English law and was declared to constitute, subject to certain exceptions, the law of British India applicable to all classes of intestate and testamentary succession but the exceptions were so wide as to exclude all natives of India. A very important change was made by the Hindu Wills Act, 1870 (Act 21 of 1870), which inter alia enacted that certain portions of Indian Succession Act should apply to all Wills and codicils made by any Hindu on or after 1st day of September, 1870. The Probate and Administration Act 5 of 1881 was applied to Hindus and Muhammadans. [On the coming into force of the Hindu Succession Act, 1956, succession to property of a Hindu is governed by its provisions except to the extent excluded by Section 5 therein. Clause(1) of Section 5 relates to succession to property of Hindus whose marriage is solemnised under the Special Marriage Act, 1954, and to the property of the issue of such marriage. Clauses (ii) and (iii) of the Section relate to impartible property held by the persons specified therein. Succession to the properties of all such persons is regulated by the Indian Succession Act, 1925.] The British Parliament felt that in the face of such vast scatteredness and multiplicity as described above there was need for consolidation of law. And thus mainly responding to this need that the British legislatives enacted Indian Succession Act, 1925, – primarily a consolidating Act. This Act replaced many enactments which were in force at that time dealing with intestate and testamentary succession including the Indian succession Act, 1865. This Act is applicable to intestate and testamentary succession.

Salient Features of Indian Succession Act, 1925:

• The Indian Succession Act, 1925 broadly divides succession into intestate and testamentary succession.
• The Act is the principal legislative measure in India dealing with the substantive law of testamentary succession in regard to persons other than Muslims and intestate succession in regard to persons other than Hindus and Muslims.
• This Act is a consolidating Act. It is only an amending Act and has only consolidated several pre-existing Central Acts passed between 1841 and 1903 without introducing any material changes
• The Act consolidated following Acts:
  • The Succession (Property Protection) Act, 19 of 1841
  • The Indian Succession Act, 10 of 1925
  • The Parsi Intestate Succession Act, 21 of 1865
  • The Hindu Wills Act, 21 of 1870
  • The Married Women’s Property Act, 3 of the 1874, Section 2
  • Probate and Administration Act, 5 of 1881; Act 6 of 1889; Act 2 of 1890 and Act 8 of 1903
  • The District Delegates Act, 6 of 1881
  • The Succession Certificate Act, 7 of 1889
  • The Native Christian Administration of Estates Act, 7 of 1901

  Scheme of the Act:

  The Act consists of 11 parts, 391 sections and 7 schedules. The Act has been divided into eleven parts and some of the parts have been sub-divided into chapters.

  • Part-I relates to preliminary dealing with definitions and power of the State Government to exempt certain classes of persons from the operation of the Act.
  • Part-II lays down the law relating to domicile. The concept is of importance, because the application of the Act to movable property of a person depends thereon. However, this part, does not apply if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jains.
  • Part-III states the effect of marriage on the rights of succession.
  • Part-IV treats of the concept of consanguinity – against a concept of importance for the purposes of intestate succession.
  • Part-V enacts the provisions relating to the intestate succession. It deals with the order of intestate succession. As the present work largely involves issues of intestate succession,
  • Part-V of the Act constitutes the main concern of the work that follows.
  • Part-VI, which is the longest part of the Act and comprises twenty-three chapters and deals with testamentary succession though, may constitute the most important portion of the Act, though not very relevant from the perspective of present study. However, continuing about the general scheme of the Act,
  • Part-VII deals with the protection of the property of the deceased and
  • Part-VIII with representative title to the property of the deceased.
  • Part-IX relates to probate, letter of administration and administration of the assets of the deceased.
  • Part-X regulates the grant of succession certificate and
  • Part XI deals with miscellaneous provisions.

  Applicability of the Indian Succession Act, 1925:

  

  Succession for Hindus

  In the case of Hindus, the laws relating to the testamentary succession are applicable as per the Indian Succession Act, 1925. However, the laws relating to the intestate succession are applicable as per the Hindu Succession Act, 1956.

  Succession for Muslims

  In the case of Muslims, the Indian Succession Act, 1925 is not applicable to both the testamentary and intestate succession. In their case, the succession is on the basis of the Quran and other sources.

  Succession for Christians:

  In the case of Christians, the laws of Indian Succession Act, 1925 is applicable to both testamentary and intestate succession.

  Conclusion:

  During the Colonial era, British policies determined what should get classified as a personal matter and the final shape of the laws governing such personal issues—whether administered by English courts or legislated by colonial legislatures modified the people’s laws. Given the complexities, a large number of laws, including succession, were enacted. The Indian Succession Act, 1925 got enacted to fill in the gaps and consolidate many legislations into one. It provided for the intestate succession of Christians in India, among other things (and also of Parsis). The law on testate succession is governed by the Indian Succession Act, 1925 for all communities except Muslims. However, certain sections of this Act are applicable to testamentary succession by Muslims also.

  Test Your Understanding:

  1. Give the salient features of the Indian Succession Act, 1925.
  2. Explain the scheme of the Indian Succession Act, 1925.
  3. How is an intestate succession carried out in case of Christians, Hindus, Sikhs, Jains, Buddhists, Parsis and Muslims?
  4. How is a testate succession carried out in case of Christians, Hindus, Sikhs, Jains, Buddhists and Parsis?
  5. How is a succession carried out in case of Muslims?