NATIONAL LAW SCHOOL OF INDIA

UNIVERSITY

A Critical Analysis of Christian Succession Laws

SUBMITTED BY: AAYUSHI YADAV

B.A. LL.B. (Hons.) II Year Trimester VIII

LLB/2852/2022
 Introduction

In India different Christian sects have diverse laws in matters concerning familial relations.
The British in 1925 framed the statutory code of succession for India based on common-law
principles, generally applicable to all classes of persons other than the Hindus and the
Muslims.1 However, with time positive changes have been brought through modern thought
of equality in England, while the same is yet to be seen in India. Of late there has been a
standstill on any sort of actions on behalf of the legislators to bring the necessary reforms,
which the Christian community has so far been pushing for 2 and no action has been taken on
the amendments recommended by the 110th3 and 247th Law Commission Report.4

This paper critically analyses the existing legal provisions under the Indian Succession Act,
19255 (ISA) in matters of intestate succession among Christians. It compares the status of
intestate succession in England and India, mainly focusing on the rights of two major groups
within the act, namely females (particularly widows and mothers) and illegitimate children. It
analyses the implications of existing statutory provisions, their judicial interpretations and
desirable amendments that could be made in the ISA.

Law of Intestate Succession under ISA

Christians and members of other religious communities who marry under the Special
Marriage Act, 1954 are governed under the Indian Succession Act, 1925. It is a common
perception that the provisions of ISA are fair to women, as she is always given a share in the
property of the intestate. However, this is far from being true. For instance, under S.60 of the
Act6, father is given absolute right to appoint a guardian for his minor children by way of a
Will, but no such right is given to a woman. Similarly, S.22 7 enables the father to make a
premarital settlement of the minor’s property, but no such right is given to the mother. A
widow may not get a share of her husband’s property is she had made a pre-marriage contract
to that effect. In short, one cannot boast of the egalitarian nature of the ISA and it needs an
overhaul by the government. The discriminatory provisions relating to intestate succession

1
Dr. Sebastian Champappilly, ‘Christian Law of Succession in india’, Sourthern Law Publishers, Kerala, India,
ed. 1997.
2
Ibid, pp.41,42.
3
110th Report of Law Commission of India on the Indian Succession Act, 1925 (February 1985)
4
247th Report of Law Commission of India on Proposed reforms in sections 41-48 of Indian Succession Act,
1925 (September 2014) submitted to the Government of India on 12th September 2014
5
Indian Succession Act, 1925, (ISA, 1925).
6
ISA, 1925, S.60.
7
ISA, 1925, S.22.
are discussed below, along with the discriminatory provisions which deny inheritance
benefits to illegitimate and adopted children under the ISA.

Law of Intestate Succession in England

English common law methods of devolving intestate estates including the customs of
primogeniture, dower, or curtesy were heavily influenced by an individual’s gender and
marital status.8 Under the common law doctrines of marital unity (Coverture), a woman’s
legal personality would undergo a dramatic transformation upon marriage. However, The
Intestates’ Estates Act, 1890 introduced the concept of ‘statutory legacy’ 9 to the surviving
spouse. The principal determinant factor now for distribution of asset upon intestacy was not
the presence of issue but the presence of surviving spouse. 10 Thus, the central pull of intestate
succession shifted from the preservation of family assets to the care and financial security of
the surviving spouse. The Administration Estates Act, 1925 laid out uniform rules of
succession and gave better interest to the surviving widow than what she possessed earlier.
By the end of the 20th century the concept of family broadened to include persons beyond
blood relationships and traditional marriage. The Inheritance and Trustees’ Powers Act,
201411 made a number of amendments in AEA, 1925. Before this, in the absence of surviving
issue or statutorily recognized next of kin of the deceased, the surviving spouse became
entitled to the entire estate but in the presence of issue she got the intestate’s personal
chattels, a statutory legacy with interest and life interest in one-half of the remaining property,
with other half being acquired by children or in their absence, statutorily specified relatives. 12
However, after the 2014 amendments, many positive changes were introduced, which is
discussed below.

Inheritance Rights of a widow and mother

Rights of widow in presence of lineal descendants of husband

According to S.33(a) of ISA,13 if the intestate, left a widow and lineal descendant(s), one-
third of the property is reserved for the widow and the remaining that is two-third is given to
8
Administration of Estates Act, 1925 (15 & 16 Geo 5, c 23) S. 45(1)(a).
9
Intestates’ Estates Act, 1890, Fixed net sum granted to spouse on intestacy.
10
Fiona Burns, “The changing patterns of total intestacy distribution between spouses and children in Australia
and England” 36(2) UNSW Law Journal 470-513 (2013).
11
The Inheritance and Trustees’ Powers Act, 2014.
12
Archana Mishra, “Vicissitudes of Women’s Inheritance Right-England, Canada and India at the Dawn of the
21st Century, Journal of the Indian Law Institute, 2016, Vol. 58, No.4, pp.481-508.
13
ISA, 1925, S.33(a).
the child/children. This is fair, when the intestate is survived by more than one child, i.e.,
children, however, if there is only one child, the widow is to be satisfied with the lesser share
of the one-third, whereas the majority share goes to the child. A similar situation is dealt
differently with other personal laws in India itself and England. For instance, the Hindu
Succession Act, 1956, provides for equal distribution of shares among sons, daughters, their
issues, widows and mothers placed under Class I heirs. 14 However, in absence of mother and
other children or their issues, the property is divided equally between the widow and the
single child. In England, the widow inherits personal chattels and then takes the statutory
legacy and an absolute interest in one-half of the balance of the residuary estate.15

Thus, one can infer that whether or not the widow will get the majority share in the property
or not under ISA, is largely dependent on the number of children surviving the intestate. In
such situations to protect the interests of the widow, there could be an amendment, as, in the
presence of a widow and a single child, the property could be equally divided between them,
rather than distributing the shares unequally to the disadvantage of the widow. It is interesting
to note that the law commission has not envisaged such a situation, neither in its 110 th report
nor in its 247th report. India can draw inspiration from other countries like England or even
Canada which also traces its history of succession laws back to the British, however, the
English law on succession was abolished in upper Canada in 1851. 16 For instance, in the
presence of only one child in Canada, the spouse gets a preferential share plus one-half of the
residue, and the other half goes to the child. 17 Similarly, ISA, 1925 could be amended to give
statutory legacy to spouse and then equal share in property to both spouses and single child of
the deceased.

Rights of widow in absence of lineal descendants of husband

According to S.33A of the ISA,18 when the net value of the property is less than five-thousand
rupees, the widow gets the absolute interest in the entire property in the absence of any lineal
descendants of the deceased. However, as per S. 33A(b) 19& S.33(c)20, if the value of the
property exceeds five thousand rupees, the widow is entitled to have a charge from the
property for the sum of five thousand rupees, along with an interest at a rate of 4 % per

14
The Hindu Succession Act, 1956, (HSA, 1956)
15
AEA, 1925, S.55(1)(x) as amended by S.3 of IPTA, 2014.
16
(n 12)
17
Ibid.
18
ISA, 1925, S.33A.
19
ISA, 1925, S.33A(b)
20
ISA, 1925, S.33A(c)
annum from the date of intestate’s death. This entitlement to five thousand rupees along with
interest does not affect the widow’s rights to any remaining portion of the estate. After this
entitlement is settled, the residue of the estate is distributed according to S. 33 of ISA, as if it
were the entirety of the deceased’s property. However, this benefit of statutory legacy is only
available when the person died intestate in respect of all his property and is bestowed only
upon the widows of Europeans domiciled in India, Eurasians, Jews, Armenians and others
that are entitled to this benefit.21 It excludes this minimum guaranteed payment in addition of
the share in the estate, to Indian Christian women, any child or grandchild of any male person
who is or was at the time an Indian Christian and any Hindu, Buddhist, or Jain, succession to
whose property is governed by the ISA22 The object of ensuring this minimum guaranteed
payment was to effectively protect the interests of widow and help improve her condition, in
case, the estate was small. The continuance of such a provision which denies these beneficial
rights to Indian Christian women and other communities governed under the ISA is illogical
and cannot be justified on the grounds of policy.23 The Indian Succession (Amendment) Bill,
199424 proposed to extend the benefit to Indian Christians and to raise the minimum amount
owing to inflation, but the bill eventually did not become an Act, hence, no progress has been
seen in this regard. As mentioned above, the concept of statutory legacy still continues to
exits in England.

Moreover, the absence of the lineal descendants does not entitle the widow to the entire share
in the property. According to S.33(b)25, if intestate dies leaving behind no lineal descendants,
but has distant relatives26, the widow is entitled to only half of the property’s share and the
other half goes to the distant relatives. It is only in the absence of kindred that the whole
property belongs to the widow, as per S.33(c).27 However, one needs to question if such a
provision should exist in the present-day, since dimensions of family are narrowing day by
day28, and variation in share of widow due to presence of such distant relative, whom the
deceased may not have even met during his lifetime seems to be unreasonable and
unjustifiable.

21
ISA, 1925, S.33(5).
22
Arulayi v Antonimuthunadan,, AIR 1945 Mad. 47.
23
Report of the Committee on the Status of Women in India, Ministry of Education & Social Welfare
Department of Social Welfare, Government of India, "Towards Equality" (Dec. 1974).
24
Indian Succession (Amendment) Bill, 1994.
25
ISA, 1925, S.33(b).
26
ISA, 1925, S.44
27
ISA, 1925, S.33(c)
28
Poonam Pradhan Saxena, "Succession Laws & Gender Justice" in Archana Parasar, Amit Dhanda (eds.),
Redefining Family Ław in India 304 (Routledge, New Delhi, 2008).
In England, after the 2014 amendments, where the deceased is not survived by issue, the
surviving spouse takes the entire residuary estate absolutely. The presence of other relatives
of the deceased makes no difference.29

Thus, inspired by this change in law in England, even the 110 th LCR, suggested for
appropriate changes in this regard, it suggested that where the intestate dies leaving his
widow and kindred but no lineal descendant, the widow should take the whole property.
Subsequently, even the Indian Succession (Amendment) Bill, 1994, suggested for giving full
rights to widow in the property of her deceased husband if husband dies without making a
will and without leaving children and parents.30 However, none of these recommendations
have seen the light of the day. Rights in entire property to spouse could be limited to only the
presence of children and parents as against extending to the presence of distant relatives of
the deceased. It also becomes important because the term widow in S. 33 also includes
‘widows’, so the intestate’s property devolves on both of the widows.31

Now, one also needs to consider the inheritance status of other women in the ISA. According
to S. 4232, in the presence of widow but in the absence of lineal descendants, the half share of
the property passes on to the immediate ascendant which includes only father and not mother.
It only after the death of father, that the mother inherits that too with the brothers/sisters of
the deceased. So, herein, the father has been provided with the primary inheritance status, and
the mother has been equally placed with brother/sisters of the deceased. Thus, a mother’s
share is dependent on whether the father is alive or not and if not, the number of siblings of
the deceased. Herein, excluding mother in the presence of mother, ignores the role of the
mother in the upbringing and settlement of the child from the beginning of the attainment of
maturity.33 Moreover, mostly the father is economically better placed than the mother. It is
important to note here, that ISA being a secular act, falls behind other personal laws like the
Hindu Succession Act, 1956 which gives mother preference over fathers and under Muslim
law mother’s share is fixed as a sharer. In England both father and mother are treated equally
and if one survives the other, the surviving parent takes the entire share.34

Changes in the law suggested by both the Indian Succession Amendment Bill, 2004 and the
Law Commission reports to place both parents equally have not been acted upon by the
29
(n 16)
30
Indian Succession (Amendment) Bill, 1994,
31
Shephali Chatterjee v Kamala Banerjee, AIR 1972 All 531 .
32
ISA, 1925, S.42.
33
(n 28).
34
Administration of Estates Act, 1925, S.46.
government.35 Furthermore, Law Commission Report also suggested that on death of either
parent of the deceased, the entire other half of the property should be granted to the surviving
parent. Once again, these suggestions are yet to be taken note of by the legislature.

Inheritance Rights of Illegitimate children and Adopted Children

ISA is driven only by the principle of consanguinity. 36 It does not provide for adoptive
relationships or grant rights to illegitimate children, therefore denying inheritance rights to
both of them. This denial of inheritance rights to adopted and illegitimate children cause
social and economic deprivation.37

The right of Christians to adopt has been restricted under the ISA, but they can avail
themselves of the opportunity to adopt through the Juvenile Justice Act. 2000 (JJA). 38
However, inheritance right of any resultant adopted child to the property of his or her parents,
which strictly follows the rule of consanguinity in devolution of property remains
indeterminate. Nonetheless, various HCs have taken proactive steps with regard to
recognizing rights under Christian law to adopt a child. The Kerala HC in the case of Philips
Alfred Malvin v. YJ Gonsalves39, it was held that though Christian law does not recognize
adoption but at the same time, neither Christian law nor Canon Law prohibit adoption.
Moreover, in 1990, the Christian Adoption and Maintenance Bill, 1990 was mooted by
Christian organizations for Christians but that has also failed to become a law. 40 In 1999,
during a Lok Sabha debate41, a Member of Parliament, Dr. Beatrix D’Souza highlighted the
need to reform and update Christian personal law relating to Marriage, Divorce and
Succession. However, as has been observed as well, the government has chosen to maintain
a deafening silence. The English Adoption Act 1976 contains provisions relating to the
recognition of adoption and conferral of certain status on the adopted child and provides for
devolution of property.42 Thus, the law relating to adoption was amended in England, the

35
Indian Succession Amendment Bill 2004
36
ISA, 1925, S.27.
37
Archana Mishra, ‘Bridging the gap between the Juvenile Justice Act 2000 and Christian personal law-
inheritance rights of adopted and illegitimate children in India (2015) 29 Australian Journal of Family Law. See
also, F L Kuhlmann, ‘Intestate Succession by and from the Adopted Child’ (1943) 28 Wash ULQ 221 at:
<http://openscholarship.wustl.edu/law_lawreview/vol28/iss4/2>
38
Juvenile Justice Act, 2000,
39
Philips Alfred Malvin v. YJ Gonsalves 1999 (1) KLJ247; AIR 1999 Ker 187. See also, Maxin George v. Indian
Oil Corp, 2005 (3) Ker LT 57; Biju Ramesh v. JP Vijayakumar, AIR 2005 Ker. 196; Manuel Theodore D’Souza,
II, (2000) DMC 292
40
(n 41)
41
XIII Lok Sabha Debates, Session II (Winter Session), Thursday, 9 December 1999, Agrahayana 18, 1921
(Saka) at <http://www.parliamentofindia.nic.in/lsdeb/ ls13/ses2/50091299.htm> (accessed 5 January 2015).
42
The English Adoption Act, 1976,
statutory law introduced by the British in India based on common law principles still remains.
On one hand, testamentary succession Sch. III of ISA 1925 43 grants rights to adopted children
of the deceased, their grand-children related through adoption and the wife of his adopted
son; they are considered to be on par with natural born relations with similar succession
rights but such rights have been given only in specific situations, thus there is no reason why
inheritance rights through intestate succession should be denied to adopted children.

The definition of ‘kindred’ under the ISA, 1925 contemplates only relations by blood through
a lawful wedlock, therefore the term ‘lineal descendants’ refers only to legitimate
relationships. The word “child” used in S. 37 of ISA does not include an illegitimate child. 44
Hence, it is clear that illegitimate children are outside the scope of the Act. Moreover, ISA
has an express discrimination against illegitimate children, as in cases of testamentary
succession, it is mentioned that that if the intention of the testator to give the property to the
illegitimate children is not clearly mentioned in the will, then the term ‘child’ will refer only
to legitimate children.45 However, even this is not without ambiguity. Inconsistency prevails
as to the rights of the illegitimate child in property under the ISA 1925 and the DA 1869. The
ISA on the one hand being based on firm principles of consanguinity does not confer the
rights of the illegitimate child whereas the Divorce Act, 1869 confers partial legitimacy in
property of the parent(s).46 Thus, such discrepancy needs an urgent attention by the
government and suitable amendments need to be made.

In the absence of clear legislative declarations, the courts have been compelled to determine
the inheritance rights of illegitimate children. In the case of Jane Antony v. VM Siyath47, the
court cited the development of law in several jurisdictions across the globe and exhorted the
legislature to bring a change of law to recognize he right to illegitimate children. The court
herein, by relying on the SC decision in Devi v. State of Bihar48 pronounced the law to be that
the illegitimate child born to the father and mother who lived as husband and wife is to be
presumed to be legitimate and such child shall be entitled to inherit the property of their

43
ISA, 1925, Sch III.
44
Re in the Goods of Sarah Ezra, 58 Cal 761: AIR 1931 Cal 560, Paruck, ‘Indian Succession Act” 12 th ed,
( Lexis Nexi)
45
ISA 1925 s 100.
46
See section 21 of the Divorce Act, 1869. It confers status of legitimacy only to a limited class of children
stated therein who are begotten before the decree is made in an annulled marriage and shall be entitled to
succeed to the estate of the parent who at the time of marriage was competent to contract, as legitimate children.
Thus, section 21 does not confer such status even on all children begotten in all marriages subsequently declared
null and void
47
Jane Antony VM Siyath, 2009 ACJ 2272.
48
Dev v. State of Bihar, (2000) 2 SCC 431.
parents along with the children born in a valid marriage. However, the court in the present
case, was merely deciding what was just, but it is not what the law explicitly states.

In England, there is no illegitimate child as the Children Act, 1989 49, abolished the concept of
illegitimacy and introduced the concept of parental responsibility which ensures that a child
has a legal father/mother even if the parents are not married. As per English law, a person
legitimated by the subsequent marriage, is also entitled to a share in the estate of the
deceased.50 Moreover, the Universal Declaration of Human Rights states that social protection
should be given to all children whether born in or out of the wedlock.51

The Law Commission has suggested two alternatives to improve the status of adopted and
illegitimate children under the ISA: (a) Inserting the definition of the term ‘child’ as also
including illegitimate and adopted child in the general definition section, S.2, (b) Adding a
suitable explanation to include illegitimate child within the definition ‘child’. 52 Therefore,
necessary changes need to be made in the ISA, so as to not stigmatize a child as illegitimate,
coupled with affording no right to the property of the parents. In the first place, the legislature
ought to declare the legitimation of children by the subsequent marriage of the parents, along
with acting upon the LCR recommendations.

Conclusion

Continuing with certain unjust and discriminatory provisions of the ISA, 1925 goes against
the tenets of the Constitution. Introducing amendments to ISA, 1925, for instance by
removing gender discriminatory provisions, for instance, equal distribution between widow
and single child, increasing the amount of ‘statutory legacy’ to widow along with interest,
extending statutory legacy also to widow and providing equal status to mother, providing
inheritance rights to illegitimate and adopted children would go a long way in toning up the
ISA in tune with the mores of the community placed at the threshold of the 21st century.

Bibliography

Statutes/Acts/Bills
49
Children Act 1989 s 3(1).
50
See also, The Hindu Marriage Act, S.16; Special Marriage Act, 1954, S.26.
51
Universal Declaration of Human Rights 1948 Art 25(2)
52
Law Commission of India, 110th Report on Indian Succession Act, 1925 (February 1985) has suggested: (1)
for insertion of new clause under s 2 which is the general defining section as: (aa) ‘child’ includes (A) an
adopted child, in the case of any one whose personal law permits adoption; (B) an illegitimate child. (2)
Revision of s 37 as: 37 Where the intestate has left surviving him a child or children, but no more remote lineal
descendant through a deceased child, the property shall (a) belong to his surviving child, if there is only one, or
(b) shall be divided among all his surviving children as if section 40 applied to the case.
  The Administration of Estates Act, 1925
 The Indian Succession Act, 1925
 Children Act, 1989
 Universal Declaration of Human Rights, 1948.
 Inheritance (Provision for Family and Dependents) Act 1975
 The English Adoption Act, 1976.
 The Juvenile Justice Act, 2000

Cases

 Arulayi v Antonimuthunadan, AIR 1945 Mad. 47.

 Biju Ramesh v. JP Vijayakumar, AIR 2005 Ker. 196
 Dev v. State of Bihar, (2000) 2 SCC 431.
 Jane Antony VM Siyath, 2009 ACJ 2272.
 Manuel Theodore D’Souza, II, (2000) DMC 292
 Maxin George v. Indian Oil Corp, 2005 (3) Ker LT 57
 Philips Alfred Malvin v. YJ Gonsalves, 1999 (1) KLJ247; AIR 1999 Ker 187
 Re in the Goods of Sarah Ezra, 58 Cal 761: AIR 1931 Cal 560
 Shephali Chatterjee v Kamala Banerjee, AIR 1972 All 531 .

Law Commission Reports & Other Reports

 110th Report of Law Commission of India on the Indian Succession Act, 1925
(February 1985)
 247th Report of Law Commission of India on Proposed reforms in sections 41-48 of
Indian Succession Act, 1925 (September 2014) submitted to the Government of India
on 12th September 2014
 “Women’s right of Inheritance” Study report of National Commission on the Status of
Women <www.ncsw.gov.pk/prod_images/pub/Right_of_Inheritence>
 Ministry of Education & Social Welfare Department of Social Welfare, Government
of India, December 1974 ,“Towards Equality”, Report of the Committee on the Status
of Women in India.

 XIII Lok Sabha Debates, Session II (Winter Session), Thursday, 9 December 1999,
Agrahayana 18, 1921 (Saka) at <http://www.parliamentofindia.nic.in/lsdeb/
ls13/ses2/50091299.htm> (accessed 5 January 2015).
Commentaries/Books
  Paruck, K. Indian Succession Act, 12th ed, (Lexis Nexis)
 Dr. Champappilly Sebastian, Christian Law of Succession in India, Southern Law
Publishers, Kerala, India ed. 1997
 Probert Rebecca, Family and Succession Law in England and Wales,
 Sivaramayya B., “The Indian Succession Act, 1925”, in K. D. Gangrade (ed.), Social
legislation in India, p. 89 Vol. II , Concept Publishing Company Pvt. Ltd.., New Delhi,
ed.1978 (reprinted 2011)
 Agnes Flavia, Family Law and Constitutional Claims, Oxford University Press, ed.
2011
 Saxena Poonam Pradhan, "Succession Laws & Gender Justice" in Archana Parasar,
Amit Dhanda (eds.), Redefining Family Ław in India pp. 282-305 (Routledge, New
Delhi, 2008).

Journal Articles

 Agarwal Bina, "Gender and Legal Rights in Agricultural Land in India" (1995) 30
(12) Economic and Political Weekly A39-A56
 Bunrs, Fiona, ‘The changing patterns of total intestacy distribution between spouses
and children in Australia and England’, (2013) UNSW Law Journal, Vol No. 36, No.2.
 Burns Fiona,” Surviving spouses, surviving children and the reform of total intestacy
law in England and Scotland: Past, present and future”, Legal Studies, (2013) Vol.33
No.1, pp. 85-118
 Dr. Gopal Gita, “Gender and Economic Inequality in India: The Legal Connection”
(1993) 13 BC Third World L.J. 86
 Kuhlmann FL, ‘Intestate Succession by and from the Adopted Child’ (1943) 28 Wash
ULQ 221
 Mishra Archana, “Bridging the gap between the Juvenile Justice Act 2000 and
Christian personal law-inheritance rights of adopted and illegitimate children in India”
(2015) 29 Australian Journal of Family Law
 Mishra Archana, “Vicissitudes of Women’s Inheritance Right-England, Canada and
India at the Dawn of the 21st Century, Journal of the Indian Law Institute”, (2016),
Vol. 58, No. 4, pp.481-508

Websites
 GOV.UK, ‘Applying for Probate’ <https://www.gov.uk/wills-probate-inheritance/if-
the-person-didnt-leave-a-will>
 Draper Julie, ‘UK Intestacy Rules’,
<https://the-probate-network.co.uk/articles/understanding-uk-intestacy-rules/>
 ‘What are the intestacy rules in England and Wales? The Gazette <
https://www.thegazette.co.uk/wills-and-probate/content/103523>