SUCCESSION UNDER INDIAN SUCCESSION ACT

Objective of the Act - An Act to consolidate the law applicable to intestate and testamentary
succession.

INTESTATE SUCCESSION (29- 46)

Synopsis:

1. Applicability

2. Intestacy

3. Rules in case of intestates other than parsis

4. Special rules for Parsi intestates

APPLICABILITY: (Section 29)

This chapter is not applicable to Hindu, Mohammedan, Buddhist, Sikh and Jain. So this
chapter applies only to Parsis, Europeans, Indian Christians.

INTESTACY:

Section 30: 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.

Illustrations:

(i) A has left no will. He has died intestate in respect of the whole of his property.

(ii) A has left a will, whereby he has appointed B his executor; but the will contains no other
provision. A has died intestate in respect of the distribution of his property.

(iii) A has bequeathed his whole property for an illegal purpose. A has died intestate in respect of the
distribution of his property.

So the person deemed to have died intestate Firstly, when he has not made a will at all and
Secondly, when he has made a will but is not effective in legal sense, or if it does not cover whole of
his property.

RULES IN CASE OF INTESTATES OTHER THAN PARSIS

Where the intestate has left –

1. Widow only- she takes everything (section 32)

The property of an intestate primarily devolves upon the wife or husband or his kindred but
a widow will not get her husband’s property, if by a valid contract made before her
marriage, she has been excluded from the distributive share of her husband’s estate.

2. Widow and lineal descendants – Widow takes 1/3rd and Lineal descendants 2/3rd
 3. Widow and kindred but no lineal descendants – Widow takes ½ and Kindred ½
4. Widow, but no Lineal Descendants
If net value of property is Rs.5000 or less, the widow takes the whole property. If it exceeds
it is divided among the heirs.
5. No Widow
Property will go to the Intestate’s lineal descendants; in default, to his Kindred; and in
default of both, to the Government.

RULES OF DISTRIBUTION: (section 36 to 48)

Rules of distribution among LINEAL DECENDANTS: (section 36 to 40)

If the intestate has left a widow, her share of 1/3rd property is first to be deducted. The
balance will devolve as per the following rules:

1. If the intestate has left a child or children only (and no remote descendant through a
deceased child). The child takes the whole of it, or if more than one, the children divide
equally among themselves. (section 37)
2. If the intestate does not leave a child behind him, but leaves behind a grandchild (or grand
children),- the grandchild takes the whole of the (balance) property, and if more than one,
the grand children get equal shares in the property. Here again, it is presumed that there no
descendant of a deceased grandchild.
3. The same rule applies if deceased left only great-grand children or remoter lineal
descendants, grand child or grand children or great-grand children. The division among them
has to be per capita.
4. If, however, the lineal descendants are not in the degree, the division has to be per stripes.

Rules of distribution among KINDRED: (Section 41 to 48)

If the intestate has left a widow (or widower), her (or his) share of ½ is first to be deducted.
The balance will then devolve as follows:

1. If the intestate’s father is living (section 42)

He takes the other half. So if the intestate leaves behind him only a widow and his father,
then widow will get ½ and father gets ½.
2. If, however, the intestate’s father is dead (section 43)
The mother and brothers and sisters of the intestate succeed equally, but the children of a
deceased brother or sister represent the parent and take the share which their parent would
have taken, if alive.
3. So also, if the father of the intestate and his brothers and sisters are dead but have left lineal
descendants, such descendants and the mother take the property in equal share. (section 44
& 45)
4. If only the intestate’s mother is alive (Section 46)
(But there is no father, brother and sister or their descendants)The mother takes the whole.
5. If there is no father, no mother, no lineal descendants (section 47)
The brothers and sisters of intestate divide equally. The children of the deceased brother or
sister can represent him or her.
 6. If intestate has left none of above relatives (Section 48)
The property goes in equal shares to those relatives who are in nearest degree of the
kindred to the intestate.

SPECIAL RULES FOR PARSI INTESTATES (Section 50-55)

General Principles relating to Intestate succession among Parsis (Section 50)

For the purpose of Intestate succession among Parsis :

1. There is no distinction between posthomous child and the child born in the life time of the
deceased.
2. A lineal descendant of the intestate who died in the life time of the intestate is not to be
taken into account.
3. Where the widow (or widower) of any relative of intestate remarries, then she or he is not
entitled to receive any property of the intestate.

SHARES IN CASE OF PARSI INTESTATES

Rule 1: If a parsi dies leaving a widow and children, the widow and child gets equal share.

Rule 2: If such parsi has no widow, but only children, each child gets an equal share.

Rule 3: If a Parsi dies leaving one or both parents and children, each parent gets a share equal to
half the share of each child.

Cases

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6935 of 2011

Decided On: 08.05.2018

Appellants: B.C. Singh (D) by L.Rs.

Vs.

Respondent: J.M. Utarid (D) by L.Rs.

B.C. Singh (D) by L.Rs. vs. J.M. Utarid (D) by L.Rs. (08.05.2018 - SC) : MANU/SC/0517/2018

The Appellant and his wife Dr. S.L. Singh were Christians, had purchased an immovable property
known as Capel Cottage. The wife of the Appellant invited the Respondents to stay at the said
Capel Cottage. The wife of the Appellant died. Thereafter an eviction suit was filed which was
dismissed by the trial court. On her death, Defendant No. 1, a distant kindred, succeeded to
1/4th share in the entire property. Therefore, the Plaintiff was not entitled for relief of
possession of the property nor was he entitled for any damages. The Appellant then filed a civil
suit for possession of property. The Trial Court dismissed the suit. . Dr. B.C. Singh has already half
share in the property by virtue of the sale deed dated 11.2.1952. He being the husband of Dr.
S.L. Singh would succeed half of the share in the property held by her as provided Under Section
33(b) read with Section 35 of the Act. Thus, he holds 3/4th share in the entire property. Now the
question is what should happen to the remaining 1/4th share in the property?

Section 47 provides for devolution of the property where intestate has left neither lineal
descendant, nor father, nor mother. The said Section is as under:

Section 47. Where intestate has left neither lineal descendant, nor father, nor mother.-Where
the intestate has left neither lineal descendant, nor father, nor mother, the property shall be
divided equally between his brothers and sisters and the child or children of such of them as
may have died before him, such children (if more than one) taking in equal shares only the
shares which their respective parents would have taken if living at the intestate's death.

An appeal was preferred wherein the Appellate Court reversed the order of the Trial Court. On
appeal the High Court held that the Respondent being kindred of the deceased wife entitled to
the share in the suit property. Hence, present appeal was preferred.

Held, while allowing appeal:

(i) The present Court noted that in case the intestate had not left a lineal descendant, nor father,
nor mother, the property should be divided equally between his brothers and sisters and the
child or children of such of them as may have died before him, such children taking equal shares
only the shares which their respective parents would have taken if leaving at the intestate death.
In the instant case, the wife had left behind her sister. She had not left behind any lineal
descendant. Her sister was the only near kindred and preferential heir of the intestate and she
would have succeeded to her share in the property. [18 ]

(ii) It was clear that when intestate had not left behind any lineal descendant and had only
kindred, the nearer kindred exclude the distant kindred. The first Respondent being a distant
kindred was not entitled to succeed any share in the property since the intestate had left behind
her real sister.
TESTAMENTORY SUCCESSION

WILLS

Definition: (section 2(h))

"Will" means 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.

Essential characteristics of a will:

1. Legal declaration
2. Declaration should relate to the property of the testate
3. It must be intended to take effect after the death of the testator
4. It is revocable during the life time of the testator

Kinds of wills:

1. Nuncupative or oral will

It is one which has been declared by the person making it in the presence of witnesses. It
can only be made by Soldier, Airman and mariner. The burden of proof of establishing an
oral will is naturally quite heavy, and such a person would have to prove the exact words of
the testator.
2. Holograph will
It is a will written in the testators own hand. The fact that the testator has written the will in
his own hand-writing shows that he was fully aware and conscious of making such a will.
3. Inofficious will
In this testator bequeths all his property to a stranger, to the complete exclusion of his wife,
his children, and other relatives.
4. Mutual or reciprocal wills
Two persons are said to make a mutual wills when they confer reciprocal benifits upon each
other under their will, giving similar rights to each of the property.
5. Joint will
It is a single document in which separate properties or joint property of two or more
testators are disposed.
6. Contingent or Conditional will
It is a will made contingent upon happening of an event, so that if the event does not
happen, the will has no effect.
7. Duplicate will
A duplicate will is one of which two or more copies are made. If such a copy is signed by
testator, it can operate as original will.
8. Privileged will (section 65)
This will does not apply to a hindu, Buddhist, Sikh or Jain. Privilaged wills are those made by:
Any soldier being employed in an expedition or engaged in actual warfare, [or an airman
so employed or engaged, or any mariner being at sea, provided, if he has completed the
age of eighteen years.
9. Un Privileged will (Section 66)
All wills made by persons other than soldier, sailor and mariner is unprivileged will.