West Bengal National University of Juridical Sciences

Family Law-I project

Comparative Study of Christian law with other countries

Winter Semester 2018-19

Name - Vedant Gupta

ID- 218051
Email – vedant218051@nujs.edu
Word Count – 2964 (excluding footnotes, bibliography and table of contents)
West Bengal National University of Juridical Sciences

TABLE OF CONTENTS

1. INTRODUCTION 3

2. DEVELOPMENT 3

3. MULTIPLICITY OF STAUTES 5

4. PROVIOSONS RELATING TO INTESATE 7

5. COMPARITIVE STUDY: DEVOLUTION OF PROPERTY 8

6. CONCLUSION 11

7. BIBLIOGRAPHY 12

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1. INTRODUCTION
1 Office of the registrar general & census commissioner, India, 2011 Census data, population enumeration data,
Christian population
2IndiaNandinihasChatterjee:
a complex Religious
legal change,
systemsocial
due conflict and legal competition:
to its diversity, the emergence
an ideal example of Christian
of such complexity are the
personal law in colonial India, modern asian studies, vol. 44, no. 6 (november 2010), pp. 1147-1195
laws
3 id., governing various religions. Presently there are four separate personal laws separately
4governing,
Supra note 2.,Law of the
Hindus, land.,
Muslims, Christians and Parsis. On top of that the personal laws that govern
5 Governments of Bengal, Fort-St.-George and Bombay,1832', PP, 1833 (755) XXV, pp. 352-353. The regulation was
these
stated that individuals have
“In any civil suit,been segregated
the parties intomay
to such suit separate statuespersuasions
be of different in order when
to govern specific
one party shall betopics
of the
Hindoo, and the other of the Mahomedan persuasion, or where one or more parties to the suit shall not be either of the
separately such as marriage, adoption and succession, thus they are also needed be taken into
Mahomedan or Hindoo persuasions, the law of those religions shall not permitted to operate to deprive such party or
consideration.
parties of any property Similarly,
to which,thebut Christian personal
for the operation of suchlaw
laws,also
they consists
would haveofbeen
separate
entitled”statutes governing
6 India Legislative Consultations, 9 April 1850, NO 86
specific
7 Supra note topic,
2 one such topic is succession which is governed by the Indian Succession Act 1925 this
8statue
Abraham hasv.been
Abraham, 1863 (9)
in debate asMIA 195. Christians sects have their own separate statues governing the
separate
9
Id.,
subject
10
Ponnusami of succession. Thus the
Nadan v. Dorasami project
Ayyan ILR (2)will
Mad.address this statue specifically.
209 (1880)
11
jujjavarapu Yesurao vs Nadakuduru Kamala Kumar And Ors. (2007) (5) ALD 140
12
Indian Succession Act 1925, §29(1)
13Through my paper I will illustrate how the Christian succession law in India has developed. further I
Indian Succession Act 1925, §2(d)
14
Indian Succession Act 1925, §5
will take upon a comparative analysis of devolution property as stated in Indian Succession Act 1925
15
Sebastian Champapilly, “Christian Law of Succession and Mary Roy’s Case,” (1994) 4 SCC (Jour) 9
Supra
with
16
thenote
law12regarding the same topic in the Administrative Estate Act which is prevalent in England
17
Indian Succession Act 1925, §29(2)
with
18
IndiantheSuccession
objectiveActof 1925
finding
§30 better deductions.
19
Indian Succession Act 1925 §24
20
K.B AGARWAL, Family Law in India (1st ed.,2010)
21
Lakshmi Sanyal vs Sachit Kumar Dhar 1972 AIR 2667
22
Indian Succession Act 1925, §26
23
Supra note 2 2. DEVELOPMENT
24
Supra note 20
25
REBBECA PROBERT , Family Law in England and Wales (1st ed.,2011)
26
Indian Succession Act 1925, §33(c)
27According to the recent census that was conducted by the government of India, there are thirty
Indian Succession Act 1925, §33(a)
28
Indian Succession
million registeredAct 1925, §33(b)
Christians present within India,1 but this was not the case when the British had just
29
Administration of Estates Act 1925 §55(1) X
arrived.
30
Christianly
Administration evolved
of Estates Act 1925and§46(2)
gained prominence in our country during the British rule, numerous
31
Administration of Estates Act 1925 §47(1)(I)
natives
32 converted
Administration in this
of Estates Actperiod, Even the Initial Indian succession act came into force in their rule
1925 §46(1)
33
Indian Succession Act 1925, §37
only
34
Supra(1865)
note 25but the act’s development was not instantaneous. A long chain of events took place
35
Indian Succession Act 1925, §40, the clause (1) of the act provides that In such a situation the property shall be divided
beforehand; the first link can be traced back to 1833, On the event of the Company's sanction being
in shares equivalent to the number of beneficiaries intestate who either were in the nearest degree of kindred to him when
the person expired,
renewed in 1833,or have been kindred
the British to him by inspected
Parliament a deceased person who is survived
and analysed by his descendants.
the condition of the legal system
36
Supra note 30
present
37
Id., in India, and they reached an unfavorable conclusion.2 Thus they decided to overhaul the
38
Family law reform act 1987 §1 (England)
system
39 leading toAct
Indian Succession creation
1925, §42
40
Indian Succession Act 1925, §43
41
Supra note 20
42
Supra note 25
43
Administration of Estates Act 1925 §8(2)
44
Supra note 20
45
Administration of Estates Act 1925 §46(1)IV

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of the first law commission which was chaired by lord Macaulay.3 In 1842 the first law commission
rejected a proposal relating to creation of specific laws governing the Anglo-Indians. In the
committee’s opinion the Anglo-Indians would best be served by one uniform law for the individuals
who were not Hindus or Muslims, which ought to be the lex loci4.

The provision which later became the law of the land was taken from a certain regulation that the
governor-general William Bentick had enacted in Bengal which was called as Bengal regulation.5 In
essence this regulation aimed at segregating the provision in such a way that, the Christian converts
are benefitted by it. i.e suppose deceased was a Hindu-Christian, then relevant provisions of Hindu
succession act will not in any manner deprive him of his property rather they will aid his heir in
acquiring the rightfully succeeded property.

Later in 1850, Lord Dalhousie's Government pronounced that the British rule had complete authority
the control succession to property, Through India Legislative Consultations of 1850 announcing
that “no individual would endure loss of rights that he possessed because of loss caste.”6 Numerous
scholars had extensively argued over the issue of whose religion should be applied during the course
of a trial, generally the cases in which this problem arose were the cases that took place between
Anglo-Indians litigants. Because of such debate, absence of separate Christian personal law was
identified as the main crux of the whole issue.7

This issue was addressed In the case Abraham V. Abraham (1863)8, it was enunciated by the privy
council that after the conversion of a Hindu to Christianity the Hindu Law ceases to govern that
individual and further it will not have any force upon the convert. Further Such a person may
renounce the Hindu Law but is not bound to do so. He may elect ‘to abide by the old law,
notwithstanding that

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he has renounced the old religion’. Further His election can be deduced from his conduct after the
renunciation.9

At this juncture the Indian Succession Act 1865 came into force, this statue mainly governed the
British Christians and Christian converts present in India, as it explicitly excluded Muslims and
Hindus. Further In Ponnusami Nadan v. Dorasami Ayyan (1880), it was enunciated that after the
enactment of the Indian succession act, members belonging to native Christian families, cannot
follow the Hindu Law of succession, though converts who beforehand were governed by Hindu Law
of succession cannot be deprived of their rights guaranteed to them under Hindu Law before their
conversion to Christianity.10 Numerous legal conundrums surrounded this case which lead to
extensive litigation. Despite the litigation the above stated proposition was affirmed by the Allahabad
high court “As the prevailing law of the land regarding legal succession” in ujjavarapu Yesurao V.
Nadakuduru Kamala Kumar And Ors.(2007).11

The Indian Succession Act which is currently governing the succession of Christians commenced in
1925. This repealed the old act as it was subjected to extensive litigation and conflict. The part
relating to intestate succession is not applicable if the deceased was a Hindu, Muhammadan,
Buddhist, Sikh or Jain.12 Thus this marks the end of the chain which established the Indian succession
act as we know today.

3. MULTIPLICITY OF STAUTES

According to §2(d) of the Indian succession act a person can be considered as a Christian if he is a
native of India, or in good faith claims to be, of unmixed Asiatic descent further he should be
professing some existing form of Christian religion.13 I will now discuss the provisions and issues
which in my opinion are needed to be addressed.

The moot point, which intensifies the confusion relating to laws of succession contained in the
aforementioned is the subject of domicile. This has been discussed in §5 of the aforementioned act,
distribution of movable property to large extent is dependent upon the domicile of the deceased

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In essence it states the following:

(1) Deceased’s immovable property will be dealt according to the law of the land, domicile in
this case does not hold any relevance.
(2) Deceased’s movable property will be governed according to the law of the place where he
resided at the time of his death.14

There is a considerable difference between nationality and domicile, for instance a person can be of
Indian nationality but he expired in England, thus his movable property will be dealt according to the
place where he last resided which in this case is England. This further in my opinion adds to
complexity

Further, it is an established fact that various sects of Christianity exist in India, and these Christian
communities in the past were regulated by their own separate personal laws. For instance,

(1) Protestant and Tamil Christians, for example, residing in certain taluks, are still governed by
their own customary provisions
(2) Christians in Goa and the Union Territories of Daman and Diu are governed by the
Portuguese Civil Code, 1867.
(3) Christians in Pondicherry have three choice either they can choose to be governed by the
French Civil Code, 1804 customary Hindu law or the Indian Succession Act.15

these statues exists due to the exemption provided by the §29(2) of the Indian succession act,
according to which enunciates that “Save as provided in sub-section (1)16 or by any other law for the
time being in force, the provisions of this Part shall constitute the law of in all cases of intestacy.”17

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4. PROVISIONS RELATING TO INTESATE

Provision dealing with intestate is contained in §30 of the Indian Succession Act, according to the
section if a person dies without drafting a testamentary disposition for certain property then the
person is considered to die intestate in context of all property for which he has not drafted a
testamentary disposition which is capable of taking legal effect.18 Now question that arises is who is
entitled to property in the case of intestate? But before that we need to delve into topic of
relationship; through blood and affinity. This has been dealt in part IV of the act.

(1) According to §24 of Indian Succession act Individuals are said to connected through
consanguinity if they have descended from the same stock or common ancestor.19

(2) Further, in §25 and §26 consanguinity has been segregated into two categories, viz lineal
consanguinity and collateral consanguinity.20

(3) Lineal consanguinity exists between two separate individuals who are directly related,
according to the apex court §25(2) constitutes a degree, either ascending or descending i.e. an
individual’s father is connected to him in the first degree.21

(4) Collateral consanguinity is that which exists between two individuals who have descended
from the same stock of ancestors, but neither of them are connected to each other in a direct
line. Degree count is needed to be taken into consideration. We first count upwards from the
deceased to the common stock and then downwards to collateral relative, a degree being
allocated to each relative, both ascending and descending. 22

From this we can comprehend how property is distributed in the cases of intestate now as we have a
general idea of which kind of relationship can ensure a right to succeed, we shall now further delve
into a comparative analysis relating to devolution of property

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5. COMPARITIVE STUDY: DEVOLUTION OF PROPERTY

Comparative analysis of the Christian law regarding devolution of property in case of intestate will
be carried out in contrast to the prevalent law of England, as Christianity gained traction during their
rule only, further the present Christian law which is applicable in India has been derived from their
medieval sources.23 The law currently in England regarding succession is governed by the
Administration of Estates Act 1925. The qualifiers for succession according to the Indian succession
act includes spouse, lineal descendants, lineal ascendants, other member of immediate family, next
of kin and state.24 While on the other hand devolution property under English law takes spouse,
descendant, ascendants and the crown into the consideration.25 For better comprehension I will
compare the distinction in law through inspecting the provisions governing these beneficiaries
separately.
5.1 SPOUSE OR CIVIL PARTNER

Christian succession law which govern the devolution of property regarding the claims spouse is
present in §33 of the Indian succession act. According to this provision the widow or widower of the
deceased will get the whole estate if the deceased has not been survived by any lineal descendants.26
Further if the deceased has left lineal descendants then one-third of the estate will belong to the
widow and the remain two-third will go to the lineal descendant which will be further shared among
them in equal proportions.27 Lastly if the deceased has left no lineal descendants but has left some
individuals who are kindred to him e.g. then the widow will get half of the whole state and the
remaining will go to those who are kindred to him, this they will share in equal proportions.28

In contrast English the civil partner is bound to obtain all the personal chattel of the deceased,29
further, he will receive the initial 250,000 GBP(pounds) of the estate and life interest in one half of
the balance if any has been left.30 The remaining share is divided equally among the children of the
deceased but

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only after they attain majority.31 further if none of the surviving relatives are left then the surviving
civil partner will get the entire state.32

Major distinction that can spotted are as follows:

(1) A certain portion of estate has been guaranteed to the spouse under the English law which is
absent in the Christian law.
(2) The spouse has been granted the right to claim life interest over the property in my opinion
this ensure that she is taken care of, this is again not provided for in Christian law

If these provision are inserted into the Christian law, more stability and security would be provided
to the deceased’s spouses which will be favorable for the society as a whole.

5.2 DESCENDANTS

The term lineal descendant is only used for descendants born out of lawful wedlock only. Devolution
of property among the lineal descendant in Christians have been provided from §37 to §40 of the
Indian Succession Act, according §37 of the act if the deceased is not survived by any civil partner or
lineal descendants but is survived by his children then the estate will be shared among them in equal
proportions irrespective of their gender.33 similarly if the deceased is survived only by his
grandchildren then the property will be distributed among them in the same manner.34

§40 of the act deals with a situation where the deceased has left lineal descendants but they are not
all related to him through a same degree, and relatives through which the remote relatives are
connected are dead.35

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The English law provides the same rule regarding distribution of the estate,36 but it diverges from the
Christian law of India on the following issues:

(1) English law does not guarantee rights of inheritance to step-children. (half-blood)37
(2) Since 1988, no distinction has been made between the children born within the marriage from
the children who are born outside of the marriage. 38

The second distinction in my opinion, reduces the degree of complexity concerning the law of
succession, as it explicitly clarifies the legal position of a child who was born out of wedlock. The
first distinction is also carrying out the same task but according to my perspective, it is unfair to
exclude step-children from the whole process due to multiple moral reasons.

5.3 ASCENDANTS

Ascendants come immediately after the descendants on the priority list, when devolution of property
is taking place. Provision relating to distribution of estate among the ascendants have been provided
from §42 to §48 of the act if the deceased has left no civil partner and no children further there are no
lineal decedents in such a circumstance the entire property will go to his father as he is next of kin
which means he comes under first degree relations.39 If he is not survived by his father then the share
will get distributed equally among the mother, brother and sisters of the deceased which also
includes brother and sisters who are connected to the deceased thorough half-blood.40

Further §45 and §46 of the act deals with situation where all the lineal descendant are not within the
same degree.41 Moreover per §48 where the intestate has left no close relatives then the property will
be distributed among the relatives who were nearest to his kin.

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Following distinction can be spotted between the two statues:

(1) Relationships which are connected through full-blood are given priority, e.g. The deceased
had two full blood brother and one half blood brother, the distribution of the allocated
property will take place only among the full-blood brothers and the half-blood brother will be
entitled to no part of the property.42

(2) Certain provisions have been provided which excludes any person who claims to be the father
but is not married to the deceased mother from gaining any share in the property, similarly
relative of the father in such case won’t be entitled to any property.43

As we continue our comparison, we can clearly understand that the provisions contained in the
Administration of Estates Act 1925 are much clearly drafted. Drafters have made an effort to reduce
the complexity. Provision which exclude the unmarried father from the property is commendable as
it can aid tackling the claims made by long lost relative of the deceased.

5.4 STATE
In the a situation where there are no beneficiaries at all to the intestate, the doctrine of escheat can be
invoked by the Government, whereupon the estate of the expired will return to the State.44 There is a
similar provision provided in the English law.45

6. CONCLUSION

In summation, my paper has discussed the development of the Indian succession act enacted in 1925
which mainly governs Indian-Christians, in addition the aforementioned statue has been compared to
the existing law of its initial drafters the British. Through observing the development concerned with
the aforementioned act, we can deduce numerous reasons which were responsible for the initial draft
of this statue, it also aids us in understanding the influence that the colonial rule had on our legal
system. Further we looked into the problem of multiple statues that governs different Christians
sects, this issue in my opinion can only be solved if these Christian sects reach a consensus regarding
the law of succession, this will require co-operation of the central government as well. Both the

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parties must co-operate only then we can find a middle ground. In order to find better deductions for
the Indian-Christian law, we took upon a comparative analysis of the Indian succession act of India
and the administrative estate act of England while focusing on the topic concerning intestate
succession. From the comparison of the statues, various distinctions were revealed through which
better deductions can be made. The administrative estate act contains clear cut provisions segregating
the entitled from unentitled which I find absent in our Indian statute. It is imperative that certain
provisions like §40 and §45 of the Indian succession act should be drafted with clarity, in addition
more security and stability should be provided to deceased’s spouse as it has been provided in the
English law.

The socio-economic system of India has been changing rapidly thus we need to make suitable
alteration in our legal system to accommodate these changes, this should be our first priority as
abstinence from accommodating these changes may hinder our growth. Furthermore, religion is a
sensitive subject hence clear and unambiguous provisions should only be allowed to govern such a
sensitive subject. Hence in my opinion a unified code and unambiguous code should be enacted
while keeping the customary practices of the subjects that it is governing in mind.

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7. BIBLIOGRAPHY

Cases

Abraham v. Abraham, 1863 (9) MIA 195. 3

jujjavarapu Yesurao vs Nadakuduru Kamala Kumar And Ors. (2007) (5) ALD 140 4

Lakshmi Sanyal vs Sachit Kumar Dhar 1972 AIR 2667 6

Ponnusami Nadan v. Dorasami Ayyan ILR (2) Mad. 209 (1880) 4

Statutes

Administration of Estates Act 1925 7

Family law reform act 1987 §1 (England) 9

Indian Succession Act 1925 4

Web Journal

Nandini Chatterjee: Religious change, social conflict and legal competition: "the emergence of

Christian personal law in colonial India" modern asian studies, vol. 44, no. 6 (november 2010),

pp. 1147-1195 2

Sebastian Champapilly, “Christian Law of Succession and Mary Roy’s Case,”(1994) 4 SCC (Jour) 9

Treatises

K.B AGARWAL, Family Law in India (1st ed.,2010) 6

REBBECA PROBERT , Family Law in England and Wales (1st ed.,2011) 7

Regulations

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Governments of Bengal, Fort-St.-George and Bombay,1832', PP, 1833 (755) XXV 3

India Legislative Consultations, 9 April 1850 3

Reports

Office of the registrar general & census commissioner, India, 2011 Census data 2

Web sources

Hein online

JSTOR

Manuparta

Westlaw

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