Succession Laws of Parsis and Christians

Introduction

Inheritance or succession points toward the idea of following a particular event

or object, places of series, however when we regard the term “succession” in
law and concerning lineage it holds a completely different meaning and essence.
Every family looks up to succeeding the ancestral and acquired property by way
of the deceased through Will or as per the law, in case of no valid Will. It is
necessary to make readjustments of goods and things, which are left behind by
the deceased person, in a legal manner, and hence it is very important to have
legislation for succession matters as to who will own, in what proportion and
enjoy the goods and property after the death of the person.

So, the legal definition of “succession” can be stated as partition or

redistribution of the property of the deceased among the legal heirs of the
deceased depending upon the prevailing law. The distribution can be either by
way of the deceased person’s will, but there are situations where the Will is not
acceptable or invalid or not even present. Then in such cases, the property needs
to devolve among the family members of the deceased, thus there are set of
provisions made under each personal law, which are to be followed by the
respective classes, in case of no Will is made or found for devolution of
property.

The provisions are inserted looking into the customary practices followed by
each class and what is better for the society as a whole, keeping the
unreasonable practices out of it, and finally, the legislation is enacted to have a
codified law for succession matters of each personal law.  When we talk about
succession laws, there are some significant aspects which are covered among
these provisions, such as the proportionate distribution of assets among the legal
heirs, which relation is has to be preferred first among all and which one has to
be latter one, what will be the manner of distribution etc. But the corporate
entities such as companies, Firms have perpetual existence and do not come
under the scope of succession laws, their distribution of assets and liabilities is
handled by different provisions like winding up, reorganization and closure etc. 

Succession law concentrates on the devolution of property of a deceased person

and not of some company or firm. The law of succession focuses on devolution
and transmission of property whose rights are vested with one person (testator)
at that time and will be transferred to another person or persons. Succession can
be broadly divided into 2 forms, “testamentary” succession (where there is a
valid Will) and “intestate” succession, (where there is no Will). In the case of
intestate succession, then the property is distributed among the legal heirs of the
person, as per the law applicable to the succession (which is decided depending
upon the religion professed by the deceased person).

Testamentary succession means the estate of the deceased is distributed as per

the wish of the person mentioned in his Will, and the succession matters of both
testate and intestate for Christian and Parsis in India are governed by the
provision of the Indian Succession Act, 1925. The Act has defined an “Indian
Christian” as a native of India who is and in good faith claims and appears to be
of Asiatic descent and professes the religion of Christianity. However, the term
“Parsi” has not been defined under the Act.

Later in one of the judgments, the Bombay High Court, the term “Parsi” was
defined and it was stated that the word “Parsi” used in the Indian Succession
Act includes the Parsi Zoroastrians of India as well the Zoroastrians of Iran and
no other Zoroastrians. Thus, for referring to the succession laws of Indian
Christian and Parsi, it is mentioned under the Indian Succession Act 1925 that
the rules for testate succession are the same for both religions whereas the rules
differ for Intestate succession.

Intestate Succession Among Indian Christians

The devolution of an intestate’s property in the case of Indian Christian

devolves upon the legal heirs of the deceased, and the specific order and
preference in which the property shall be devolved are stated in Chapter II, part
V of the Succession Act. All the relevant rules regarding the intestate
succession of Indian Christian are mentioned in the said part. Some of the
striking principles of devolution are as follows-

1. If the deceased has some lineal descendants like more than one child
or some remote relatives then the share of the widow will be 1/3 rd of
the property and the remaining 2/3rd shall be devolved upon its lineal
descendants. But in case, there are no lineal descendants but only
the parents of the deceased and other close relatives, then the widow
shall be getting ½ share of the property and the remaining half shall
go to the close kindred and parents of the deceased. And if there are
no kindred found of the deceased, then the entire estate shall
devolve in favour of the widow. It should be noted that the rights
given to the widow will be the same for the husband, concerning the
property of his deceased wife.
2. In cases, where there is no widow, then the property shall devolve to
his lineal descendants directly and if there are no lineal descendants
(son/daughter of deceased), then the property shall go into the hands
of kindred of the deceased in proportions and not completely, as laid
down from section 41 to 48 of the Succession Act.
 3. Earlier, the Indian law didn’t recognize the adoption, especially the
adoption by a Christian but in the case of Joyce Pushapalath
Karkada Alias v. Shameela Nina Ravindra Shiri, 2010, it was
held by the Court that even an adopted child has the right to
succession as similar to the rights of a natural-born child. There is
no distinction made between the rights of adopted or naturally born
children.
4. Even a posthumous child has the same rights as the other children,
stating as if he was born at the time of death of the intestate.

Laws for distribution of intestate’s property

I. Distribution of property where lineal descendants are present (section 37 to

40)-

The rules for distribution of the property of an intestate where the lineal
descendants are present is mentioned under section 37 to 40 of the Act. If the
deceased has left a widow/widower, then deducing the share of a widow from
the property, the remaining distribution among the legal heirs is as follows-

 Section 37 states that, if only the deceased had only one child or
children and no further lineal descendants then the property shall be
divided equally among the surviving children of the deceased.
 Section 38 states that if there are no surviving children, but there is
a grandchild or grandchildren, then the property shall devolve
entirely upon the surviving grandchild or in the case of
grandchildren, it shall be distributed equally.
 Section 39 of the Act states, that if there are only great-
grandchildren alive or some other lineal descendants in the same
degree, then the property shall devolve upon the great-grandchildren
 or the other remote lineal descendants equally among the males and
females.
 Section 40 states that, if the intestate has left lineal descendants but
not of the same degree of kindred, and those descendants through
whom the succession descended have already died, then the
property shall be divided into the equal shares concerning several
lineal descendants of the intestate who belong to the closest degree
of the kindred of the intestate, who died before the intestate, leaving
their lineal descendants who have succeeded him.

For example- if A had three children, B, C and D, and B died in an accident

leaving behind 2 children, D also dies leaving behind one child and only C is
the surviving child of A, then the property shall be divided into 3 parts, one part
shall go to C (surviving child), one part to 2 children of B and the remaining
part to a single child of D.

II. Distribution of property where there are no lineal descendants (section 42 to

48)-

Distribution and devolution of the property where there are no lineal

descendants of the intestate person are mentioned under sections 42 to 48 of the
Act. The person who dies without leaving any children or remote lineal
descendants behind, then the rules for distribution of property are marked in
order of preference and are as follows-

 Section 42 states that the Widow shall get ½ of the share and the
father of the deceased shall get the remaining half of the property,
even if other kindred are still present
  Section 43 mentions that Widow shall get ½ share of the estate and
if there is no father, then the mother, brother and sister of the
deceased shall distribute the remaining ½ equally among themselves
 Section 44 states that the widow gets ½ of the share, and the mother,
brother, sister and children of any deceased brother or sister will be
getting the rest of the ½ share equally per stirpes
 Section 45 states that the widow gets half of the share and the
mother and children of the deceased brother or sister get the rest of
the half equally per stirpes
 Section 46 states that the widow shall get ½ share of the estate and
if only the mother is surviving then she will get the other ½ of the
estate
 Section 46 states that the widow shall ½ of the share and if there is
no mother, then brother, sister and children of predeceased brother
or sister shall get the remaining half distributed equally per stirpes
 Section 47 mentions that if there are no parents and siblings, then
the widow gets ½ share and the rest of ½ shall be given to remote
kindred of the closest degree.

Intestate Succession among Parsis

The Parsi intestate is administered by the rules mentioned under Part V chapter
III of the Act and it states how the estate is distributed among the legal heirs of
the deceased. Sections 51 to 56 state about the intestate succession of Parsis, the
general rules of Parsi intestate succession are-

There is no share for a lineal descendant of an intestate who has died before the
death of the intestate, only if the remote issue of a predeceased child of the
intestate has left neither any widow nor widower, child or children nor any
widow of any lineal descendant of such predeceased child. If the predeceased
child of the intestate has any one of the abovementioned relations alive, then
that child’s share shall be counted for the distribution of the estate. This is
mentioned under section 53 of the Act.

Further, it has been mentioned under section 53(b) of the Act, that if the
predeceased child is a daughter, then the widower shall not get any share but the
children of the predeceased daughter shall be receiving the share of their
mother, which has to distributed equally among them. And in case there is no
lineal descendant of a daughter, then her share won’t be counted at all.

No share shall be given to any widow or widower of any relative of the intestate
if that person has remarried during the lifetime of the intestate. Although, this
rule has an exception that if the mother or paternal grandmother of the intestate
marries again during the lifetime of the intestate, then also they will be entitled
to share in the estate.

Testamentary Succession among Christians and Parsis

The testamentary succession of a person can be done by making a Will or

Probate. But the Will should be valid and the person making it, should be
competent enough to make it or else the Will is considered to be invalid. Some
of the important aspects of testamentary succession for the Christian and Parsis
are-

 Persons who are capable of making a Will– Every person who is

of sound mind and is not a minor can make a Will to dispose of his
property. Hence, even a married woman or dumb, deaf or blind
person is capable of making a Will, if they have the knowledge of
what are doing and have the intention to do so. The competency of a
person is the same as mentioned under the Indian Contract Act, for
 example, a person who is intoxicated or ill might not have the
proper state of mind to make a Will.
 Concept of Testamentary Guardian– A father has been given the
right to appoint a guardian or even guardians by the Will for his
child or children till the child attains the age of majority.
 Revocation of Will by Testator’s Marriage– Section 69 of the
Succession Act, states that all the Wills shall be considered revoked
by the marriage of the Testator that takes place after the making of
Will
 Privileged and Unprivileged Wills– All the Wills that fulfil the
terms mentioned under section 63 of the Act, are known as the
“Unprivileged Wills” and the wills that are made and executed u/s
66 of the Act are called “Privileged Wills”.

Section 63 states the essentials for a valid will that is-

 Every Will must have the signature of the Testator or his thumb
impression could be used as his mark or signed by a person who is
directed by the testator and in presence of the Testator.
 The Will should also be signed by at least 2 witnesses, who approve
that they have seen the testator sign the Will or affix his mark.

Section 66 states about the “Privileged Wills” which can be made by persons
who are in Armed Forces. This privilege has been given to soldiers or airmen or
even mariners who are engaged in a war-like situation or an expedition
involving actual warfare. These men can give their Will either in writing or
orally and it is not necessary to have the signature of the Testator or even
attestation by anyone else on that Will.
In the case of Privileged wills, the mode and manner of making and executing a
Will shall be under Section 66 and it is comparatively less complicated than the
ordinary unprivileged Will.

 Bequests to religious and charitable causes– Section 118 talks

about the bequests that are made in favour of religious and
charitable causes, but this section applies only to the Christians and
not Parsis. The section states that no man who is having a nephew or
niece or any closer relative shall have the power to donate his
property to any religious or charitable uses except by a Will that is
executed not less than 12 months before his death and is submitted
within 6 months from its execution in someplace as stated in the law
for the safe custody of the Wills of the living persons. But this
section was struck down for being unconstitutional by the Apex
Court and thus Christians and Parsis have the right to leave their
property for charity without being chained by the above provision.

 Probate– In case of a Parsi person dying, probate is necessary and

needs to be issued if the Will is made or the property bequeathed
under the Will is located within the jurisdiction of the three
presidencies Calcutta, Madras and Bombay. Even if the Will is
made outside the limits of these cities but the property attached to
the Will comes under the jurisdiction of these three cities then also,
probate has to be issued.

In the case of a dying Christian, it is not compulsory to obtain a Probate for his
Will. The will alone is sufficient.  
Mutual Concepts Shared by Christian and Parsi Succession Law

There are certain common ideas concerning illegitimate children which are
shared and followed by both the communities in acquiescence. The principles
shared by both Christian and Parsis are-

1. Both the communities, Christian and Parsi don’t identify the rights
of an illegitimate child who is born out of wedlock and they give
recognition to only those children who are born from legitimate
marriages. This was stated in the case of Raj Kumar Sharma v.
Rajinder Nath Diwan AIR 1987 Del 323. Thus, the child who is
born out of wedlock cannot claim any rights over the succession
from his biological parents into the Christian and Parsi law. The
community gives importance to relations running from lawful
wedlock only.
2. The Christian and Parsi succession laws don’t make any distinction
between the relations through the father or mother. In cases where
there are both, paternal and maternal relations found of the intestate
person, all the relations shall be liable for an equal share of the
estate distributed in an equal manner. Further, Christians and Parsis
also don’t make any discrimination when it comes to full blood/
half-blood/ uterine relations and even a posthumous child is
considered as a child who was present while the person died
intestate on the condition that he was already conceived and was in
the womb and is born alive.

Conclusion

Thus, from the above content, it can be summarized that the succession laws of
Christians and Parsis are very much similar to the Hindu succession law,
especially the testamentary succession which is the same for Christian, Parsis
and even Hindus, except for Mohammad people. Although, the intestate
succession differs drastically from religion to religion, even though the basic
idea of intestate succession revolves around the devolution of property among
the legal heirs of the intestate. But whom all come under the category of legal
heirs and what will be the preferential order of the heirs is decided by the
respective personal law which the intestate was professing at the time of his/her
death.

Hence, it is very important to know the religion followed or professed by the

person who died intestate, to apply the relevant succession law over his goods
and property. India is a country with multiple religions in force, and each one of
them has been given equal recognition in our fundamental rights but keeping
track of different succession laws can be tiresome and even cause confusion,
thus it would be a better option if a uniform law of succession is followed
throughout the country to keep it simple for the entire population as well as the
law enforcers.