INDIAN SUCCESSION

CHRISTIAN SUCCESSION

Intestate succession among Christians is governed by the Indian Succession Act, 1925. Heirs
recognized for Christians are:
• Spouse
• Lineal descendants
• Kindered
Part V od the Act deals with intestate succession. Part II of part V deals with succession among
Christians.

SECTION 33 - WHERE INTESTATE HAS LEFT WIDOW AND LINEAL

DESCENDANTS OR WIDOWSS AND KINDERED ONLY, OR
WIDOWED AND NO KINDERED.
a. Lineal descendants and widow – 1/3 to widow and 2/3 to LD
b. Widow and Kindered – ½ to widow and ½ to Kindered
c. Only widow – whole property to widow
Widow is a term used for both the husband and wife. The same applies to both.

SECTION 33A – SPECIAL PROVISIONS WHERE ONLY THE WIDOW

IS THERE NO LINEAL DESCENDANTS.
This isn’t applicable to Christians

SECTION 34 – INTESTATE HAS LEFT NO WIDOW OR KINDERED

If there is no widow, the lineal descendants inherit. if there are no lineal descendants the
kindered will inherit. If there is no kindered as well, the govt. inherits.

DISTRIBUTION WHERE THERE ARE LINEAL

DESCENDANTS

SECTION 36 – RULES OF DISTRIBUTION

After 1/3 is given to widow, Sections 37-40 shall govern distribution of property among LD.

SECTION 37 – INTESTATE LEFT CHILD/CHILDREN ONLY

No remote LD through deceased child, then property goes to the surviving child. Per capita
succession. If more than one child, the property is divided equally among them.

SECTION 38 – INTESTATE LEFT NO GHILD/CHILDREN, BUT HAS

LIVING GRANDCHILD/GRANDCHILDREN
Only the grandchildren and your great grandchildren through deceased grandchildren, property
should be equally divided among them. Per capita succession.
SECTION 39 – INTESTATE IS LEFT WITH ONLY GREAT
GRANDCHILDREN OR REMOTE LINEAL DESCENDANTS
If all LD adding the degree of great-grandchildren then the property will be divided equally
among them. Or else all of them in the same remote degree. In the above sections, the surviving
LD’s all belong to the same degree. Hence per stirpes distribution is not applied.

SECTION 40 – INTESTATE LEAVES LD OF DIFFERENT DEGREES

AND THOSE THROUH WHOM THE MORE REMOTE ARE
DESCENDED ARE DEAD
Divided into equal shares according to the number of LD who are in the nearest degree or LD
descendent of them. Per stirpes.

SECTION 42 – INTESTATE’S FATHER IS LIVING

Father shall succeed.

SECTION 43 – INTESTATE’S FATHER IS DEAD, BUT MOTHER,

BROTHER AND SISTER ARE LIVING.
Property shall be equally divided among the mother, brother and sister, given no child of
deceased brother or sister is alive. Per stirpes.

SECTION 44 - INTESTATE’S FATHER IS DEAD, BUT MOTHER,

BROTHER AND SISTER AND THE CHILD(REN) OF DECEASED’S
BROTHER/SISTER
Property shall be equally divided among the mother, brother, sister and child/children of
deceased’s brother/sister. Per stirpes (representation).

SECTION 45 - INTESTATE’S FATHER IS DEAD, BUT MOTHER, AND

CHILDREN OF DECEASED’S BROTHER/SISTER
Property shall be equally divided among them. The children take the share which the parents
would have taken if they were alive. Per stirpes.

SECTION 46 – INTESTATE’S FATHER DEAD. NO SIBLINGS OR

NIECES/NEPHEWS. ONLY MOTHER IS ALIVE.
Mother shall succeed the property.

SECTION 47 – INTESTATE HAS NO LD. NO FATHER OR MOTHER

EITHER.
Property is equally divided among the brother and sister and the children of the deceased
brother/sisters.

SECTION 48 – INTESTATE HAS NO LD, NO PARENTS OR SIBLINGS.

Property is equally divided among the realities of the nearest degree of kindered to the
deceased.
 PARSI INHERITANCE

SECTION 50 - GENERAL PRINCIPLES

¨ No distinction between posthumously born LD and an already born child at the time of
intestate’s death
¨ A LD who had died in the lifetime of the intestate, without leaving a widow/widower
or any LD or widow/widower of LD, shall not be considered while determining the
division of the property.
¨ Where a widow/widower, or a widow/widower of any relative of the intestate has
married during the lifetime of the intestate, such a person shall not be considered.
Chapter III deals with Parsi intestate succession.

SECTION 51 – DIVISION OF INTESTATE’S PROPERTY AMONG

WIDOW, CHILDREN AND PARENTS
1. Widow and children – each receive equal share
W = 1/3
D = 1/3
S = 1/3

2. No widow but have children. All children get equal share

W=0
D=½
S=½

3. Parents, widow and children are live. Then, father’s share is equal to half the share of
son and mother’s is equal to half the share of daughter.
Eg: suppose deceased had rs. 4, then
W=1
D=1 M=½
S=1 F=½

SECTION 53 – DIVISION OF SHARED OF PREDECEASED

CHILD/CHILDREN OF INTESTATE ONLY LEAVING LDs
a. Predeceased son- we doing children will take as if the son died after the intestate’s
death. (Son – widow/widower and LD)
Suppose predeceased son has only widow and widow of LD and no LD, then the pre-
deceased son shall not be taken into account.

b. Predeceased daughter-share is equally divided among her children

c. If child of predeceased child died during intestate life, then their share would be
divided according to clause (a)/(b)
SECTION 54 – NO LD, WIDOW/WIDOWER OR WIDOW/WIDOWER
OF LD
• Widow, no widow of LD
W=½
Relatives = ½
• Widow and widow of LD
W = 1/3
W of LD = 1/3
Relatives = 1/3

• No widow, only widow of LD

1 W(LD) = 1/3 > 1 W(LD) = 2/3
Relatives = 2/3 Relatives = 1/3

The residue after widow goes to relatives in order specified in part I of schedule II. The relatives
in superior class a preferred over the ones in lower class. The next of his standing first will be
preferred to the standing second and second the third and so on. If no relatives are left, then the
property cost of the widow of LD.

SECTION 55 – NO LD, NO WIDOW/WIDOWER OF LD

Property goes to next of his kin according to Part II of schedule II in full. Doors standing first
get preference over those second. Both male and female of same degree get equal share.

SECTION 56 – NO LD/WIDOW/WIDOWER OF LD/RELATIVES

UNDER PART I & II OF SCHEDULE II
Property goes to intestate’s relatives, in nearest degree of kindered to him.

WILL AND CODICIL

According to section 2(h) of The Indian Succession Act, 1925 the act defines will as “the legal
declaration of the intention of a testator with respect to his property which he desires to be
carried into effect after his death.”

SECTION 59 - PERSON CAPABLE OF MAKING A WILL

¨ Sound mind and a person who is a trained age of majority may dispose property by
will.
¨ Physical capacity not materialistic. Eg: blind, dumb and deaf can make a will
¨ Insane person may make a will during an interval where they are sane.
¨ No will can be made while in a state of mind due to intoxication or illness rendering
him incapable of knowing what he is doing.
Illustration : suppose ‘A’ perceive things in the immediate neighbourhood and can answer
familiar questions, but has no competent understanding as to the nature of the property or
person of kindered, Aaron whose favour would be proper, then ‘A’ cannot make a valid will.

SECTION 61 – WILL OBTAINED BY FRAUD OR

MISREPRESENTATION IS VOID.
SECTION 65 – PRIVILEGED WILLS
Soldiers employed in an expedition or engaged in actual warfare can dispose of property by a
privileged will.

SECTION 66 – MODES AND RULES OF EXECUTION OF PRIVILEGED

WILLS
• Written by his own hand- no sign/attest
• Partly by another – sign, no attestation. If no sign, prove that he directed the will
• If instrument not executed in a particular manner, and will is not invalid- reasonable
reason.
• Soldier - Instructions for preparing will, died before preparation, then instruction
becomes the will.
• Two witnesses – verbal instructions- written in lifetime- considered as will.
• Will by word of mouth- 2 witnesses simultaneous.
• Will by word of mouth- null after one month after testator seizes his entitlement to
make privileged will. He should still be alive.

SECTION 63 – UNPRIVILEGED WILLS

Other than soldiers anyone can execute unprivileged wills.
• Testator- sign/mark or some other by his direction in his presence.
• Such sign/mark must be so placed to appear as if intended to give effect to the
writing as a will
• Attested by two or more witnesses who have seen the testator sign/Mark/some other
signs/mark or receive a personal acknowledgement by testator.

Each witness shall sign in the testator’s presence. Not necessarily that, more than one witness
be made present at the same time. No particular form off attestation shall be necessary.