Christian Law

CHRISTIAN LAW OF INTESTATE SUCCESSION
(EXTRACT FROM MY PH.D. THESIS)
DR. GITANJALI GHOSH

ASSISTANT PROFESSOR OF LAW
NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM
CHAPTER 5
A COMPARATIVE STUDY OF KHASI AND MIZO CUSTOMARY

INHERITANCE LAWS VIS-À-VIS CHRISTIAN LAW OF SUCCESSION IN
INDIA
5.1 Concept of Succession
Succession or inheritance means the passing on of property from the

deceased to his heirs after his death.
After Hinduism and Islam, Christianity is the third most populous religion in
India with 2.30% of the Indian population adhering to the faith.366 However, it
is to be noted that a variety of churches exist in India, viz., Roman Catholic
Church, Syro-Malabar Catholic Church, the Protestant Churches such as the
Church of South India, the Marthoma Syrian Church, the Presbyterian
Church of India, inter alia.367
Resultantly, the law governing succession among Christians in India is varied

and has also gained legal recognition either by legislation or judicial
decisions. This led to ambiguity in Christian law of succession as well as
multiplicity in application of laws. It is this ambiguity and multiplicity that
resulted in the enactment of the Indian Succession Act, 1865 and
subsequently the Indian Succession Act, 1925.
Generally speaking, the Indian Succession Act, 1925 applies to all Christians
but there are several exceptions to this. The native Christians in the province
366
‘Census 2011’ <https://www.census2011.co.in/religion.php> accessed December 26,
2018.
367
Law Commission of India, Sections 41 to 48 of the Indian Succession Act, 1925-
Proposed Reforms (Law Com No 247, 2014) 1. The composition of the Law Commission of
India was Justice A.P. Shah, Chairman; Justice S.N. Kapoor, Justice Usha Mehra and Prof.
(Dr.) Moolchand Sharma, Members; Dr. S.S. Chahar, Member-Secretary; P.K. Malhotra and
Dr.Sanjay Singh, Ex-officio Members.
160
DR. GITANJALI GHOSH

of Coorg are exempt from its application owing to Section 3 of the Indian
Succession Act, 1925.368 Also, in Goa369 and Pondicherry,370 it is the
Portuguese Civil Code and the French Civil Code that are applicable
respectively.371 Similarly, the Khasis, the Jaintias and Garos of Meghalaya
are also not subject to the provisions of the Indian Succession Act and follow
their customary matrilineal system of inheritance.372 This protection is
granted by the Constitution of India and also by Section 29(2) of the Indian
Succession Act, 1925.373 The Christians in Kerala also had their own laws of
succession374 but after 1951375 came to be governed by the Indian
Succession Act, 1925.
5.2 Legislative history of Christian Law of Intestate Succession
The law governing intestate succession among Christians in India can be

studied by dividing the same into three distinct periods, viz. period prior to
1865; period intervening 1865 and 1925; and period subsequent to 1925.376
5.2.1 Period prior to 1865
Laws governing succession in India trace their genesis to religion.

Consequently, succession in the late 19th century was determined on the
basis of religious as well as customary laws. However, there was significant
amount of vagueness before 1865 about the laws applicable to people
368
Alicia v. P.F. Pinto, 1967 (2) Mys. L.J. 210. The State Government has the power to
exempt any race, sect or tribe from the operation of the relevant provisions of the Act under
Section 3 of the Indian Succession Act 1925.
369
Goa, Daman and Diu (Administration) Act 1962.
370
Treaty Between The Republic Of France And India Establishing Cession By The French
Republic To The Indian Union Of The French Establishments In India (signed 28 May 1956).
371
David Annouswamy, ‘Pondicherry: Babel of Personal Laws’ (1972) JOURNAL OF INDIAN
LAW INSTITUTE 420, 422.
372
Sebastian Champappilly, Christian Law of Succession in India (Southern Law Publishers
1997) 11.
373
Constitution of India 1950, arts 13(3), 366(10), 244 & Sixth Schedule.
374
Travancore Christian Succession Act 1092 (Malayali Era).
375
Part B States (Laws) Act 1951.
376
Law Commission of India, Sections 41 to 48 of the Indian Succession Act, 1925-
Proposed Reforms (Law Com No 247, 2014).
161
DR. GITANJALI GHOSH

professing religions other than Hinduism and Islam. In other words, in the
time period prior to 1865, the law was not clear apropos to communities like
the Anglo-Indians, Parsis, Jews, Armenians, Christians, inter alia.
Although the English law was being applied in the Presidency towns, the
position prevalent in the Moffusils was obscure. Most of the Moffusil courts
majorly applied the principle of “justice, equity and good conscience” while
deciding cases relating to substantive personal laws of the communities other
than Hindus and Muslims.377 While introducing the Bill culminating in the
Succession Act of 1865, Sir Henry Maine referred to the prevalence of this
obscurity.378 Thus, the law defining the rights and obligations of non-Hindus
and non-Muslims was in an extremely confused position.
During this period, the law of succession for Christians in India was
expounded in the famous case of Abraham v. Abraham379 wherein the Privy
Council observed as follows:
“When a Hindu becomes a convert to Christianity, the Hindu is

no doubt released from the trammels of Hindu Law. However, in
regard to matters in which Christianity has no concern, it does
not of necessity (sic) involve any change of right or relation such
as rights to or interest in and powers over property. It is open to
the convert to renounce the old Hindu Law along with the old
Hindu religion which he has renounced or retain the old Hindu
Law though he has renounced the old Hindu religion.”380
5.2.1.1 The Law Commissions of 1835, 1853 and 1865
377
Law Commission of India, The Indian Succession Act, 1925 (Law Com No 110, 1985)
para 2.20. The composition of the Law Commission of India was K.K. Mathew, Chairman;
J.P. Chaturvedi and Dr. M.B. Rao, Members; P.M. Bakshi and Vepa P. Sarathi, Part-time
Members; and S. Ramaiah, Member Secretary.
378
Statement of Objects and Reasons, Indian Succession Bill 1865.
379
9 M.I.A. 105.
380
Law Commission of India, Consultation Paper on Reform of Family Law (31 August
2018) para 5.102.
162
DR. GITANJALI GHOSH

In 1835, the First Law Commission recommended that the English Law
should apply to people belonging to these communities. This
recommendation, however, was not accepted. Taking cue from the fate of the
First Law Commission, although the Second Law Commission established
under the Charter Act of 1853 did not favour introduction of English Law, it
stated that it was desirable to assimilate law as was prevalent across the
country. The Third Law Commission was involved in a substantial amount of
legislative activity. Its members were Sir John Romilly, Sir William Erle, Sir
Edward Ryan, Mr. Robert Lowe, Mr. Justice Willes and Mr. J.M. Macleod.381
Originally proposed as the Indian Civil Code Chapter 1, the draft of the Indian
Succession Act as submitted by the Third Law Commission in 1865 was
adopted.382
5.2.1.2 The Indian Succession Act, 1865 and its fate
The Indian Succession Act, 1865 dealt with both intestate and testamentary
succession. Given the fact that it did not concern with governing succession
among the Hindus and Muslims, its utility was owed to how it codified the law
of succession apropos all other communities.
5.2.2 Period intervening 1865 and 1925
The Indian Succession Act enacted in 1865 and as interpreted by the

judiciary introduced a change in the historically adopted approach towards
the law governing intestate succession among Christians.
In Dagree v. Pacotti San Jao,383 the Bombay High Court had to consider
whether a person who had converted from Hinduism to Christianity but was
still following Hindu customs would be governed by the ancient Hindu law or
381
para 2.24.
382
ibid.
383
ILR 19 Bom. 783.
163
DR. GITANJALI GHOSH

not. The Court held that unless it is proven that the deceased was a Hindu,
Mohammedan or Buddhist, the Indian Succession Act of 1865 would apply,
and not the Hindu law.384 In 1921, the Privy Council expressed an identical
opinion in Kamawati v. Digbijai Singh.385 Thus, even if a Christian convert
from Hindu continued to follow Hindu usages and customs, the Indian
Succession Act of 1865 would nevertheless apply.
5.2.3 Period subsequent to 1925- Period of consolidation and the Indian

Succession Act, 1925
The Indian Succession Act, 1865, based on English law, was declared to
constitute the law of British India applicable to all classes of intestate and
testamentary succession, subject to certain exceptions. However, the
exceptions were wide enough with the effect of excluding the Indian natives.
In 1870, with the enactment of the Hindu Wills Act, certain portions of Indian
Succession Act came to be applicable to all wills and codicils made by any
Hindu on or after September 01, 1870. Further, the subsequently enacted
Probate and Administration in 1881 was also made applicable to Hindus and
Mohammedans. In the face of such multiplicity in laws, the British lawmakers
considered it pertinent to consolidate the laws. Consequently, the Indian
Succession Act, 1925 was enacted, primarily as a consolidating Act.
In the span of 60 years between 1865 and 1925, a number of Acts pertaining
to the law governing succession were enacted. The ambit of the Indian
Succession Act, 1925 is wide as it consolidated twelve Acts into one. The
Acts consolidated or repealed were:386
384
See also, Ponnusami Nandan v. Dorasami Ayyan, ILR 2 Mad. 209; Administrator General
of Madras v. Anandanchari & ors., ILR 9 Mad. 466; Tellis v. Saldhana, ILR 10 Mad. 69.
385
(1922) 24 BOMLR 626.
386
para 2.28.
164
DR. GITANJALI GHOSH

1. The Succession (Property Protection) Act, 1841;
2. The Indian Succession Act, 1865;
3. The Parsi Intestate Succession Act, 1865;
4. The Hindu Wills Act, 1870;
5. The Married Women’s Property Act, 1874, Section 2;
6. The Probate and Administration Act, 1881;
7. The District Delegates Act, 1881;
9. The Succession Certificate Act, 1889;
11. The Native Christian Administration of Estates Act, 1901; and
12. The Probate and Administration Act, 1903.
In 1925, the Indian Succession Act was enacted, consolidating the laws of
succession. Hindus, Muslims, Buddhists, Jains, Sikhs were, however,
exempt from its purview by virtue of section 29 of the Act, thereby affirming
the stance of the Privy Council in the case of Abraham v. Abraham.387
Additionally, Coorg Christians, Khasis and Jaintias in Khasi and Jaintia Hills
in Assam, Mundas and Oraons in the Provinces of Bihar and Orissa were
also left out of its purview as they followed their ancient customary laws of
succession.388 Apart from that, Christians in Goa, Daman and Diu who were
governed by Portuguese Civil Code, 1867 and those in Pondicherry who
were governed by customary Hindu law and the French Civil Code, 1804
were also outside its scope.389 Thus, the Indian Succession Act, 1925
became applicable when Christians were not governed by any other
customary or statutory laws.
387
9 M.I.A. 105.
388
para 5.105.
389
E.D. Devadason, Christian Law in India (DSI Publications 1974) 296.
165
h GHOSH
DR. GITANJALI
ASSISTANT PROFESSOR
. OF LAW
NATIONAL LAW UNIVERSITY ANDDJUDICIAL ACADEMY, ASSAM
.
In contemporary times, the Indian Succession Act, 1925 is the primary law in
India dealing with testamentary succession of everyone other than Muslims
and intestate succession of everyone other than Hindus and Muslims.
However, it must be duly noted that it is only a consolidating Act in the sense
that it only consolidated several pre-existing laws enacted between 1841 and
1903 without introducing any substantive changes. This, in fact, is quite
evident in the Statement of Objects and Reasons in the following words:
“The subject of this bill is to consolidate the Indian Law relating to

succession; the separate existence on the statute book of a
number of large and important enactments renders the present
law difficult of ascertainment and there is, therefore, every
justification for an attempt to consolidate it. The bill has been
prepared by the Statute Law Revision Committee as purely
consolidating measure. No intentional change of law has
therefore been made.”390
5.3 Christian Law of Intestate Succession
Part V Chapter II of the Indian Succession Act, 1925 provides rules to be

followed for devolution of property of people dying intestate and is applicable
in case of Christian intestates.
There are three categories of heirs recognized under Christian law, viz.
widow(er), lineal descendant (children, grandchildren, great grandchildren,
etc. for any number of generations) and kindred (other relatives starting with
father, mother and siblings, and those related by blood and adoption).
In short, in case of a Christian dying intestate, the following are his heirs:391
• Wife
• Husband
390
Indian Succession Act 1925, Statement of Objects and Reasons.
391
ibid s 32.
166
DR. GITANJALI GHOSH

• Kindred
• Lineal descendant
Section 34 provides that in the absence of a widow, the lineal descendants

inherit the intestate’s property. If there are no lineal descendants as well,
persons who are of kindred to him inherit the same. In the absence of all of
them, the property goes to the Government. In other words, the widow and
lineal descendants always succeed whereas kindred are excluded by the
presence of lineal descendants.
Section 35 clearly lays down that widower has same rights in his deceased
wife’s property as are enjoyed by a widow in her deceased husband’s
property.
5.3.1 In case of widow(er)
Section 33 provides for various rules to be followed in case intestate has left
behind widow, lineal descendant and kindred in different permutations and
combinations i.e. where the intestate has left behind widow and lineal
descendants; or widow and kindred; or widow and no kindred.
Where the intestate has left a widow and any lineal descendants, his widow
gets one-third of his property while his lineal descendants get the remaining
two-thirds.392
If the intestate has not left behind any lineal descendant, but has left persons
who are of kindred to him in addition to his widow; half of his property goes to
his widow while the other half shall go to those who are of kindred to him.393
Further, if he has left behind neither lineal descendants nor persons who are
392
ibid s 33(a).
393
ibid s 33(b).
167
DR. GITANJALI GHOSH

of kindred to him, his widow shall inherit the whole of his property.394
5.3.2 In case of lineal descendants
Sections 36 to 40 lay down rules of distribution in case intestate has left

behind lineal descendants. However, the widow(er)’s share has to be
deducted, if there is one, before dividing property among the lineal
descendants.395
5.3.2.1 When the intestate leaves behind children
Section 37 provides that if the intestate has left behind a child or children and
no more remote lineal descendant through a pre-deceased child, the property
shall go to his child and if there are children, it shall be divided equally among
all of them.
William
Charlotte George Louie

⅓ ⅓ ⅓
William dies leaving behind a daughter, Charlotte and two sons, George and
Louie. All of them share his property equally i.e. they take ⅓ each.
5.3.2.2 When the intestate leaves behind grandchildren
Section 38 lays down that where the intestate has not left behind children but
has left a grandchild or grandchildren and no more remote descendant
through a pre-deceased grandchild, the property shall be inherited by his
grandchild and if there are more, the property shall be equally divided among
all the grandchildren.
394
ibid s 33(c).
395
ibid s 36.
168
DR. GITANJALI GHOSH

William
Axl Brick Sue Giselle Mary Preston Porter

1/7 1/7 1/7 1/7 1/7 1/7 1/7
William dies leaving behind his grandchildren Axl, Brick, Sue, Giselle, Mary,
Preston and Porter. His children Charlotte, George and Louie have pre-
deceased him. In this case, his grandchildren inherit his property equally i.e.
they get 1/7 each.
5.3.2.3 When the intestate leaves behind great grandchildren
Similarly, the property shall go to the lineal descendants nearest in degree

where they are all in the degree of great-grandchildren to the intestate or are all
in a more remote degree, if the intestate’s children and grandchildren have pre-
deceased him.396
William
Lauren Barry Fred Gwen Jill Martin Anthony

1/7 1/7 1/7 1/7 1/7 1/7 1/7
396
ibid s 39.
169
DR. GITANJALI GHOSH

William’s children as well as grandchildren have pre-deceased him. His great

grandchildren are all in the same degree and hence, will share his property
equally. Thus, Lauren, Barry, Fred, Gwen, Jill, Martin and Anthony will get
1/7 each.
5.3.2.4 When the intestate leaves behind children, grandchildren and

great grandchildren
Section 40(1) provides that if the intestate has left lineal descendants who do
not all stand in the same degree of kindred to him, and the lineal
descendants through whom the more remote lineal descendants are
descended are dead, the property shall be divided into a number of equal
shares corresponding to the number of lineal descendants nearest in degree
of kindred to the intestate (both living and dead).
One share each shall be allotted to the lineal descendants who stood in the
nearest degree of kindred to the intestate and one share each shall be
allotted to the deceased lineal descendants. The share allotted to the
deceased lineal descendants shall belong to his surviving child or children or
more remote lineal descendants. Such surviving child or children or more
remote lineal descendants always taking the share which his or their parent
or parents would have been entitled to respectively if such parent or parents
had survived the intestate.397
397
ibid s 40(2).
170
DR. GITANJALI GHOSH

William
Charlotte ⅓ George ⅓ ⅓ Louie
Axl Brick Sue Giselle Mary

1/9 1/9 1/9 ⅙ ⅙
William dies leaving behind a son Louie. His other children have pre-deceased
him. He has also left behind grandchildren. As Louie is still alive, the shares will
be first divided at his level thereby allotting ⅓ to each of William’s children i.e.
Charlotte, George and Louie. Further, while Louie will hold his ⅓, Charlotte’s
children will inherit her share equally and similarly, for George.
William

1/7 1/7 1/7 1/7 1/7 1/7 1/7
Martin Agatha
1/14 1/14
William’s children have pre-deceased him but he leaves behind his
grandchildren and great grandchildren. The division of shares will take place
171
DR. GITANJALI GHOSH

at the grandchildren’s level thereby allotting 1/7 each to Axl, Brick, Sue,
Giselle, Mary, Preston and Porter. Preston’s share will be inherited by his
children Martin and Agatha equally, each getting 1/14.
5.3.3 In case of kindred
Sections 41 to 48 provide rules of distribution in case of kindred.
Where an intestate has left no lineal descendants, the property goes to the
kindred. If intestate has left a widow or widower, his/her share shall be
deducted before distribution among the kindred.398
5.3.3.1 When the intestate leaves behind father
If the intestate has left behind a father, he succeeds to the entire property. In
other words, the father excludes all other kindred.399
Philip = Elizabeth
Bree Carlos Lynette
Bree dies leaving behind her father, Philip; mother, Elizabeth; brother, Carlos
and sister, Lynette. Her father excludes all other heirs and succeeds to her
entire property.
5.3.3.2 When the intestate leaves behind mother and siblings
However, if the intestate’s father is dead, and he/she has left behind mother,
brothers and sisters; the mother and each living brother and sister shall
succeed to the property in equal shares.400
398
ibid s 41.
399
ibid s 42.
400
ibid s 43.
172
DR. GITANJALI GHOSH

Philip = Elizabeth ⅓
Bree Carlos Lynette

⅓ ⅓
Bree dies leaving behind her mother, Elizabeth; brother, Carlos and sister,
Lynette. Elizabeth, Carlos and Lynette inherit ⅓ each.
5.3.3.3 When the intestate leaves behind mother, siblings and children
of pre-deceased siblings
Further, if the intestate’s father is dead, and he/she has left behind mother,
brothers and sisters as well as children of pre-deceased brothers or sisters;
the mother and each living brother and sister along with each such children
shall succeed to the property in equal shares. It should be noted that such
children take equally only those shares, which their respective parents would
have taken, had they been alive when the intestate died.401
Bree Carlos ⅓ Lynette
Miranda Denny
⅙ ⅙
Bree dies leaving behind her mother, Elizabeth; brother, Carlos and two
children of her pre-deceased sister, Lynette viz. Miranda and Denny.
Elizabeth and Carlos get ⅓ each while Lynette’s ⅓ is equally shared by her
children. Thus, Miranda and Denny get ⅙ each.
401
ibid s 44.
173
DR. GITANJALI GHOSH

5.3.3.4 When the intestate leaves behind mother and children of pre-
deceased siblings
If the intestate’s father, brothers and sisters are dead and the only heirs left
behind are the mother and children of pre-deceased brothers and sisters,
they shall take equal shares. It should be noted that such children take
equally only those shares, which their respective parents would have taken,
had they been alive when the intestate died.402
Bree Carlos Lynette
Gabby Miranda Denny

⅓ ⅙ ⅙
Bree dies leaving behind her mother, Elizabeth; two children of her pre-
deceased sister, Lynette viz. Miranda and Denny; and Gabby, child of her
pre-deceased brother, Carlos. Elizabeth gets ⅓ and Carlos’ ⅓ is inherited by
Gabby while Lynette’s ⅓ is equally shared by her children. Thus, Miranda
and Denny get ⅙ each.
5.3.3.5 When the intestate leaves behind only mother
If the intestate has left behind only the mother sans any other kindred, viz.,
father, brothers, sisters, children of pre-deceased brothers and sisters; the
402
ibid s 45.
174
DR. GITANJALI GHOSH

mother inherits the entire property.403
5.3.3.6 When the intestate leaves behind siblings and children of pre-
deceased siblings
Again, if the intestate has not left behind his/her father, mother and lineal
descendants but only brothers and sisters and children of pre-deceased
brothers and sisters; property will be divided equally among them. It should
be noted that such children take equally only those shares, which their
respective parents would have taken, had they been alive when the intestate
died.404
Philip = Elizabeth
Bree Carlos Gabby Lynette

⅓ ⅓
Miranda Denny
⅙ ⅙
Bree dies leaving behind her brother, Carlos and sister, Gabby and two
children of her pre-deceased sister, Lynette viz. Miranda and Denny. Gabby
and Carlos get ⅓ each while Lynette’s ⅓ is equally shared by her children.
Thus, Miranda and Denny get ⅙ each.
It is to be noted that half-brothers and half-sisters (i.e. born of different

fathers and same mother or different mothers and same father) have the
403
ibid s 46.
404
ibid s 47.
175
DR. GITANJALI GHOSH

same right to property as brothers and sisters. This rule applies to all
relatives of half-blood.405
Richard and Kate married each other and had two daughters, Alexis and
Andrea. Later, they divorced. While Richard married Fionna, Kate married
Kevin. Richard and Fionna had a son Sam; while Kate and Kevin had a son
Dean. Alexis and Andrea are full sisters while Sam and Dean are their half-
brothers as Sam has the same father as them while Dean has the same
mother as them. On Andrea’s death, her property will be shared equally
among her full as well as half siblings.
Fionna = Richard ¹ Kate = Kevin
Sam Dean
Alexis Andrea
5.3.3.7 When the intestate leaves behind neither lineal descendant, nor
parent, nor brother, nor sister
Section 48 provides that where the intestate has left neither lineal
descendant, nor parent, nor brother, nor sister, his property shall be divided
equally among those of his relatives who are in the nearest degree of kindred
to him.
405
ibid s 27(b).
176
DR. GITANJALI GHOSH

On the basis of the above discussion, we can summarize the Christian Law
of Intestate Succession in seven fact situations that could arise.406
1. Widow(er) only He or she gets the entire property.
2. Widow(er) and Lineal Widow(er) gets ⅓, Lineal Descendants

Descendants together receive ⅔.
3. Widow(er) and Kindred Widow(er) gets ½ , nearest kindred receives

½.
4. Lineal Descendants and Lineal Descendants take all the property,

Kindred excluding the Kindred.
5. Widow(er), Lineal While Kindred are excluded by Lineal

Descendants and Descendants, Widow(er) and Lineal
Kindred Descendants take in accordance with the
second rule.
6. Only Kindred Nearest kindred takes the property i.e. the

father. If there is no father; mother, siblings
and children of predeceased siblings inherit
together.
7. Only Lineal descendants Each branch receives a share. Branches

are divided apropos the nearest descendant
available. A descendant can inherit only if
the ancestor(s) he is representing is dead.
The same have been discussed with the help of illustrations hereinafter.
1. Widow(er) only – He or she gets the entire property.
Joanna dies leaving behind her brother in law, Saul and her spouse, Joseph.
Her spouse inherits the entire property given the fact that in-laws are not
heirs under Christian Law on Intestate Succession. Further, lineal
descendants and kindred are not present in the given illustration.
406
Thomas (n 21) 99-101.
177
DR. GITANJALI GHOSH

Joanna = Joseph Saul
Robert is survived by his wife, Ellen and sister in law, Sophia. His wife
inherits the whole property owing to the fact that in-laws are not heirs under
Christian Law on Intestate Succession. Further, lineal descendants and
kindred are absent in the given illustration as well.
Robert = Ellen Sophia
2. Widow(er) and Lineal Descendants – Widow(er) receives ⅓, Lineal

Descendants together get ⅔.
John dies leaving behind his wife, Maria and three sons, Brian, Jacob and
Alex. While his wife receives ⅓ of the property, his sons together inherit the
remaining ⅔ of the property, thereby, each getting a 2/9 share.
John = Maria ⅓
Brian Jacob Alex
2/9 2/9 2/9
Eliza dies leaving behind her husband, Philip and a daughter, Anne. While
Philip gets ⅓, Anne takes ⅔ of the property.
⅓ Philip = Eliza
Anne ⅔
178
DR. GITANJALI GHOSH

3. Widow(er) and Kindred – Widow(er) and nearest kindred gets ½ each

i.e equally.
Joshua dies leaving behind his wife, Jacqueline and his mother, Claire. Both
his wife and mother get ½ each.
Claire ½
Joshua = Jacqueline ½
Joshua dies leaving behind his wife, Jacqueline; his father, Phil; and his
mother, Claire. While his wife receives ½ of the property, his father gets the
other ½ excluding his mother.407
½ Phil = Claire
Joshua = Jacqueline ½
4. Lineal Descendants and Kindred – Lineal Descendants take all the

property excluding the Kindred.
Shaina dies leaving behind her mother, Alice and her daughter, Georgia. Her
daughter, Georgia inherits the entire property.
Alice
Shaina
Georgia
Peter dies leaving behind his father, Patrick and a grandson, Stuart and
daughter in law, Alisha through his son, Thomas who is dead. His grandson,
Stuart takes the entire property.
407
It is notable that this is one of those areas where Christian law discriminates against
women.
179
DR. GITANJALI GHOSH

Patrick
`
Peter
Thomas = Alisha
Stuart
5. Widow(er), Lineal Descendants and Kindred - Kindred are excluded by

Lineal Descendants, Widow(er) and Lineal Descendants take in
accordance with rule 2.
Mark is survived by his wife, Evan; father Danny; mother Mindy; and two
sons, Stevan and Damon. The parents are excluded by the son i.e. lineal
descendants exclude kindred. Evan gets ⅓ and the sons together take ⅔.
Danny = Mindy
Mark = Evan ⅓
Stevan ⅓ Damon ⅓
Joanne, leaves behind her sister, Jacqueline; her husband, Chris and her
son, Stuart. While her husband receives ⅓ and her son gets ⅔, her sister
takes nothing.
180
DR. GITANJALI GHOSH

Jacqueline Joanne = Chris ⅓
Stuart ⅔
6. Only Kindred - Nearest kindred takes the property i.e. the father. If
there is no father; mother, siblings and children of pre-deceased
siblings succeed together.
Meredith dies leaving behind her parents, Ellis and Richard. She also leaves
behind a sister Lexie. Her father, Richard, gets the entire property.
Richard = Ellis
Lexie Meredith
7. Only Lineal descendants - Each branch gets a share. Branches are

divided apropos the nearest descendant available. A lower
descendant can claim only if the ancestor(s) he is claiming from is
dead.
Richard
Jackson ½ Meredith½
Miranda Derek Alex Zola
Jackson, Meredith, Miranda, Derek, Alex and Zola are all Richard’s lineal
descendants. However, if Jackson and Meredith are alive, they will inherit
Richard’s property equally. The other descendants have no right whatsoever.
181
DR. GITANJALI GHOSH

Richard
Jackson ½ Meredith
Miranda Derek Alex ¼ Zola ¼
If Meredith has pre-deceased her father, Richard; her children get to inherit in
the event of Richard’s death. While Jackson would take ½, Meredith’s ½will
be shared by Alex and Zola equally i.e. ¼ each.
Apart from the above, there are a few additional rules that need to be kept in
mind as well. They are:
1. An unborn child has a right to succeed subject to the child being born
alive.408
Illustration
Lennard dies leaving behind his pregnant wife, Penny. If Lennard’s child is
born alive, Penny will get ⅓ and the child will get ⅔. If Penny miscarries or
the child is stillborn, Penny will inherit it entirely.
2. Prior to inheriting the property, the heirs have to pay all debts accrued
on the property. However, it is to be noted that heirs are not obligated
to pay an amount over and above the value of the property inherited.
Illustration
408
Indian Succession Act 1925, s 27(c).
182
DR. GITANJALI GHOSH

Harry dies leaving behind a son. He has to pay the funeral expenses,
pending taxes and other legal dues before claiming the property.
5.4 Christian Law of Testamentary Succession (Wills)
Part VI of the Indian Succession Act, 1925 deals with testamentary

succession. Sections 57 and 58 make it aptly clear that the provisions are
applicable to Christians.
‘Will’ has been defined as “legal declaration of the intention of a testator with
respect to his property which he desires to be carried into effect after his
death”.409 ‘Codicil’ is “a part of the will made to explain, alter or add to its
dispositions”.410
There are some fundamental rules involved in will making which need to be
noted at this juncture.
• The testator must have attained the age of majority.411

• The testator must be of sound mind.412 However, an insane person
can make a valid will during lucid intervals.413 At the same time, a will
made by a sane person who is in such state of mind owing to illness or
intoxication where he is unaware of his actions is not valid.414
• The will must be in written form. Privileged wills can be made orally
but need to be reduced into writing eventually.415
• The testator has to sign or affix his mark to the will.416
• The signature of the testator must be attested by two witnesses.417
409
ibid s 2(h).
410
ibid s 2(b).
411
ibid s 59.
412
ibid.
413
ibid explanation 3 to s 59.
414
ibid explanation 4. to s 59.
415
ibid s 66.
416
ibid s 63.
183

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CHRISTIAN LAW OF INTESTATE SUCCESSION

(EXTRACT FROM MY PH.D. THESIS)

DR. GITANJALI GHOSH

A COMPARATIVE STUDY OF KHASI AND MIZO CUSTOMARY

5.1 Concept of Succession

Succession or inheritance means the passing on of property from the

Resultantly, the law governing succession among Christians in India is varied

DR. GITANJALI GHOSH

5.2 Legislative history of Christian Law of Intestate Succession

The law governing intestate succession among Christians in India can be

5.2.1 Period prior to 1865

Laws governing succession in India trace their genesis to religion.

DR. GITANJALI GHOSH

“When a Hindu becomes a convert to Christianity, the Hindu is

5.2.1.1 The Law Commissions of 1835, 1853 and 1865

DR. GITANJALI GHOSH

5.2.1.2 The Indian Succession Act, 1865 and its fate

5.2.2 Period intervening 1865 and 1925

The Indian Succession Act enacted in 1865 and as interpreted by the

DR. GITANJALI GHOSH

5.2.3 Period subsequent to 1925- Period of consolidation and the Indian

DR. GITANJALI GHOSH

“The subject of this bill is to consolidate the Indian Law relating to

5.3 Christian Law of Intestate Succession

Part V Chapter II of the Indian Succession Act, 1925 provides rules to be

DR. GITANJALI GHOSH

Section 34 provides that in the absence of a widow, the lineal descendants

5.3.1 In case of widow(er)

DR. GITANJALI GHOSH

5.3.2 In case of lineal descendants

Sections 36 to 40 lay down rules of distribution in case intestate has left

5.3.2.1 When the intestate leaves behind children

Charlotte George Louie

5.3.2.2 When the intestate leaves behind grandchildren

DR. GITANJALI GHOSH

Charlotte George Louie

Axl Brick Sue Giselle Mary Preston Porter

5.3.2.3 When the intestate leaves behind great grandchildren

Similarly, the property shall go to the lineal descendants nearest in degree

Charlotte George Louie

Axl Brick Sue Giselle Mary Preston Porter

Lauren Barry Fred Gwen Jill Martin Anthony

DR. GITANJALI GHOSH

William’s children as well as grandchildren have pre-deceased him. His great

5.3.2.4 When the intestate leaves behind children, grandchildren and

DR. GITANJALI GHOSH

Charlotte ⅓ George ⅓ ⅓ Louie

Axl Brick Sue Giselle Mary

Charlotte George Louie

Axl Brick Sue Giselle Mary Preston Porter

DR. GITANJALI GHOSH

5.3.3 In case of kindred

Sections 41 to 48 provide rules of distribution in case of kindred.

5.3.3.1 When the intestate leaves behind father

Bree Carlos Lynette

5.3.3.2 When the intestate leaves behind mother and siblings

DR. GITANJALI GHOSH

Bree Carlos Lynette

Bree Carlos ⅓ Lynette

DR. GITANJALI GHOSH

Bree Carlos Lynette

Gabby Miranda Denny

5.3.3.5 When the intestate leaves behind only mother