Christian law of Inheritance in India

Christians in India have had different laws on inheritance. The British Indian
Government enacted the Indian Succession Act of 1865 on the
recommendations of the 3rd Law Commission. This Act was intended to be
applied to different communities in British India who did not have a law of their
own in matters of succession. It was specifically provided that it would not
apply in the case of Hindus, Muslims, Buddhists, Sikhs or Jains. But its
provisions were to apply in the case of Christians.
An authoritative exposition and critical analysis of Christian law of succession
in India is given in the book "Christian Law of Succession in India" by
Advocate Dr. Sebastian Champappilly.

Indian Succession Act

The Indian Succession Act of 1865 was comprehensively amended and
consolidated by the Indian Succession Act of 1925. Neither the Indian
Succession Act of 1865, nor the Act of 1925 was to apply to Christians in the
whole of India. Section 332 of the Act of 1865 contained a provision which
empowered the State Governments to exempt any race, sect or tribe or any
part of such race, sect or tribe from the operation of the Act, by way of a
notification. A similar provision was enacted under Section 3 of the Indian
Succession Act, 1925. In exercise of this power, the Native Christians in the
province of Coorg in the erstwhile state of Mysore were exempted from the
application of the provisions of the Indian Succession Act. The Khasis and
Jaintias in the Khasi Hills and Jaintia Hills in North East India were also
exempted. The Mundas and Oraons in the province of Bihar and Orissa are
also exempted from the application of the provisions of the Indian Succession
Act. By virtue of the provisions of the Goa, Daman and Diu (Administration)
Act, 1962, it is the Portuguese Civil Code and not the Indian Succession Act
that applies in Goa. In Pondicherry, the French Civil Code still survives as per
the provisions of the Treaty of Cession. And the Garos of Meghalaya are also
not subject to the provisions of the Indian Succession Act and they follow their
customary matrilineal system of inheritance. This protection is granted by the
Constitution of India and also by Section 29(2) of the Indian Succession Act,

1925.

Travancore and Cochin Acts

The Christians in the former Princely State of Travancore were governed by
the provisions of the Travancore Christian Succession Act of 1916 in matters
of intestate succession. The Christians in the former Princely State of Cochin
were governed by the provisions of the Cochin Christian Succession Act of
1921 in matters of intestate succession.
While so the Supreme Court of India in 1986 [in Mary Roy v. State of Kerala
AIR 1986 SC 1011 : MANU/SC/0390/1986] declared that with the coming into
force of the Part B States (Laws) Act 1951, the Travancore Christian
Succession Act of 1916 stood repealed with effect from 1 April 1951 and held
that Christians in the Travancore area were and are governed by the Indian
Succession Act, 1925. Following this decision, the High Court of Kerala
declared that the Cochin Christian Succession Act of 1921 also stood
repealed with effect from 1 April 1951. As the law declared by the Supreme
Court and the High Court are binding, the Indian Succession Act of 1925 is the
law relating to succession applicable to the great majority of Christians in India
except the categories mentioned above.

Intestate succession
The intestate's property
If a person has not made a testamentary disposition of his property which is
capable of taking effect, he is deemed to have died intestate in respect of his
entire estate.

Rules of distribution
The Succession Act contemplates only those relationships that arise from a
lawful marriage. Where an intestate has left a widow and if he has left lineal
descendants, that is, children and children's children, 1/3 of his property shall
belong to the widow, and the remaining 2/3 shall go to the lineal descendants.
If the intestate has no lineal descendants, but has left persons who are of
kindred to him, of his property shall belong to the widow and the other
shall go to those who are of kindred to him. If the intestate has left none who
are of kindred to him, the whole of the property shall belong to the widow.

The phrase "lineal descendant" means a descendant born out of a lawful

marriage. Thus a daughter's illegitimate son or a son's illegitimate daughter or
other illegitimate issue cannot be said to be a lineal descendant. An
illegitimate child is not a child within the meaning of the Act. Therefore such a
child has no share in the property of the parents. But in Jane Antony v Siyath
2008 (4) KLT 1002 Kerala High Court recognised the right of illegitimate
children under the Indian Succession Act upholding the lower court verdict.
The term "kindred" means relations by blood through a lawful marriage.
Therefore, relations by illegitimate birth are not recognised as kindred under
the Act. Kindred does not include relation by affinity such as mother-in-law or
stepmother or stepfather. Thus, a stepfather or stepmother has no legal right
of succession to the property of his or her stepchildren. The position is the
same in the case of a father-in-law as well.
A husband has no right to inherit the property of a divorced wife. In case of a
judicial separation under the Indian Divorce Act, 1869, the property of the wife
would devolve upon her legal heirs as if her husband were dead.
A daughter-in-law has no right of succession to the estate of her intestate
father-in-law.
Where the intestate has left a widow, and where there are no lineal
descendants, the widow's share is one half of the estate of the intestate, as is
provided under section 33(b).
Where an intestate has left no child, but only a grandchild or grandchildren
and no other remote descendant, the property shall belong to the grandchild if
only one grandchild is left by the intestate and if there are grandchildren, the
property shall belong to the surviving grandchildren in equal shares. It means
that in a situation contemplated under this section, the distribution is per capita
and not stirpital.
The father of an intestate succeeds to the property to the exclusion of the
mother. This is based on the English Common Law principle that he would
have taken her share if arising jure mariti. When a Hindu convert to
Christianity dies intestate, it is the father, in the given situation, who succeeds
to the property. The religious faith of the father is immaterial for the purposes
of succession. What is material is that the deceased should have belonged to
the Christian religion on the date of his death. The religion of the heirs is

immaterial. But the English view that a man is not the father of the illegitimate
children applies also under the Indian Succession Act.
As there is no statutory recognition for adoption by Christians in India, an
adopted child cannot claim the right to succession unless a custom of
adoption can be proved. It has been held that a party can prove that there is a
custom of adoption among Christians in Punjab so as to change the rule of
succession as laid down in this Act. Some Christians in the Mysore and
Travancore areas also claim the right of adoption but this is yet to be judicially
recognised.
Any money or other property given by an intestate to a child for his/her
advancement in life would not be taken into consideration at the time of
distribution of the property of the intestate. Therefore, the practice of Christian
daughters executing release deeds at the time of marriage so as to get them
excluded from succession may not achieve the desired result, because only if
there is a preexisting right can it be conveyed. In the case of a Christian
daughter, she has no pre-existing right in the family property and her rights
arise when her parents die intestate. Therefore a release deed executed after
the date of intestacy alone would be valid.
Apart from immovable property, the properties of the intestate that are to be
distributed among the legal heirs include the following-

Fixed Deposits in a Bank

When a person dies intestate after making a fixed deposit in a bank, the
nomination made in favour of one will not disentitle the legal heirs to claim a
distributive share.

Joint account in a bank

Unless a contrary intention is proved, when an amount is deposited in a joint
account on the terms that it was to be payable to either of the survivors, it
must be included in the partible property among the legal heirs, for the
purposes of intestate succession.

Service benefits
Succession to the service benefits of a Government servant who dies
intestate, cannot be affected by nomination. A nominee is only a trustee for
legal heirs and the right of the legal heirs cannot be taken away by nomination.

Insurance claims
A nominee's interest in the amount received under a policy of insurance, when
the insured dies intestate, is subject to the claims of legal heirs of the insured,
under the law of succession.

Escheat
In the absence of lineal descendants and kindred to the deceased, the
property shall go to the Government. The Collector has power to issue
notification directing claimants to such properties to prefer and establish their
claims under Regulation No. VII of 1817, clauses 6 to 9 read with clause 5 of
standing Order No.197. But when a claim of escheat is put forward by the
Government the onus lies heavily on the appellant to prove the absence of any
heir of the respondent anywhere in the world. Before the plea of escheat can
be entertained there must be a public notice given by the Government so that
if there are any claimants anywhere in the country or for that matter in the
world, they may come forward to contest the claim of the State. When the
State takes the property it does so subject to the liabilities of the deceased.
Apart from all these situations, there are instances of complications in matters
of succession involving priests and nuns. In such cases, the first and foremost
hurdle is that though Succession Act has not contemplated or incorporated the
principle of civil death, yet the courts have tried to bring in that principle
through the interpretative process.

The concept of civil death

In a decision rendered prior to the enactment of the Hindu Succession Act,
1956, the Supreme Court, in the context of Hindu Law, held that entrance of
one person into a religious order operates as civil death. Even in England
such a concept had acceptance. A distinguished author had opined as under:
"A monk or nun cannot acquire or have any proprietary rights. When a man
becomes professed in religion', his heir at once inherits from him any land he
has, and if he has made a Will, it takes effect at once as though he were
naturally dead. If after this a kinsman of his dies, leaving land which according
to the ordinary rules of inheritance would descend to him, he is overlooked as
though he were no longer in the land of the living; the inheritance misses him
and passes to some more distant relatives. The rule is not that what descends
to him belongs to the house of which he is an inmate, nothing descends to

him, for he is already dead" .However, courts in India have taken

divergent views on the subject as is evident from the following discussion.

Catholic priests and succession

One of the earlier decisions in this matter was rendered by the Travancore
High Court in 1079 M.E. In this case, it was contended that a monk may be
linked to a Hindu ascetic. A Hindu ascetic under Hindu Law loses his civil
rights by entering into the 4th order, i.e., Sanyasam. But no such law was
shown to exist among Roman Catholics. It was opined by the Court that the
origin of the concept of loss of civil rights in a monk must be attributed to
custom, and no such custom was also proved. The court, therefore, held that
among Roman Catholics, the rights in the family property of a person taking
holy orders as a monk were not by law or usage extinguished. Thus a Roman
Catholic Priest was allowed a distributive share in the property of his natural
family.
The Madras High Court also took the same view from an affidavit angle, In a
dispute as regards the right of inheritance when a Roman Catholic priest died
intestate, the court held that the law of intestate succession applicable to
Catholic priests is Part V of the Indian Succession Act, 1925, and that
inheritance is allowed only to the natural heirs of the deceased priest and not
to the superior of the priest. However, in the case of a nun the position is still
different.

Nun and succession

The view taken by the Karnataka High Court is that a nun is entitled to a
distributive share in the property of her natural family in the event of opening of
succession due to intestacy. Whereas the High Court of Kerala opined that
with the taking of perpetual vow by a nun the person concerned ceased to
have any connection with the members of her natural family. So far as the
natural family was concerned the woman was taken as dead and therefore,
the parents and other members were not to be taken as blood relations
thereafter. It was held that legal effect of a person becoming a nun is that she
cannot thereafter be considered as having a father or mother or relatives. And
therefore, the Court allowed the Mother Superior to receive the service
benefits of the deceased nun in preference to her natural heirs.
In yet another case, the Kerala High Court held that the Mother Superior of a

Holy Order of Catholic Nuns is the legal representative of a deceased nun of

that congregation. The Mother Superior being the head of the convent, is
entitled to claim compensation on account of the death of the nun. The Court
further opined that the deceased suffered a civil death by becoming a member
of the Holy Order and that the natural heirs mentioned in Sections 41 to 48 of
the Indian Succession Act would not be her legal heirs. If she had made a Will
it was to take effect at once as though she were naturally dead. So also if one
of her kinsman dies leaving properties which according to ordinary rules of
inheritance would descend to her, she would be overlooked as though she
were no longer alive.
Now therefore, it can be seen that the views taken by the Karnataka High
Court and the Kerala High Court are diametrically opposed as regards the
status of a nun under the Indian Succession Act. So also, the approach of the
Court is at variance vis--vis a priest and a nun.

Heirship and Succession Certificate

Public authorities like Banks and other Financial Institutions and third party
purchasers would require of the legal heirs of an intestate to establish their
legal right to the property of the intestate by submission of Heirship Certificate
or Succession Certificates. The Heirship Certificates are issued by Revenue
Authorities and Succession Certificates are issued by the Administrator
General or the District Court or the High Court. Both the District Courts and
the High Courts have concurrent jurisdiction in the matter.

Testamentary Succession
The rules relating to intestate succession among Christians would come into
operation only if the deceased had not executed a will or any document of gift
or a settlement deed. In the absence of the aforesaid documents the rules
regulating succession enumerated under sections 29 to 49 in Part V of the
Indian Succession Act, 1925 would come into play. But, if there is a Will
executed by the deceased, the general law as contained in sections 57 to 391
would apply.
Where a Will was executed by a deceased, succession to his property is
regulated by the provisions of the Will. If an executor is named in the Will, he
has to get the Will probated as it is mandatory under section 213 of the Indian

Succession Act. After obtaining probate, it is the duty of the executor to carry
out the distribution of the property in accordance with the provisions of the
Will. It may be noted that probate can be granted only to the executor
appointed under a Will as is provided under section 222. If no executor is
appointed by the Will, anyone of the persons claiming a right under the Will
can file a petition for obtaining letters of administration as is provided under
section 219. [But if the deceased has died intestate, wife or husband, as the
case may be, has got preferential right to get letters of administration as is
provided under section 219 (a) and (e).] In the case of Christians, those
persons who are connected either by marriage or consanguinity are entitled to
obtain letters of administration. On receipt of letters of administration, the
intention of the testator as embodied in the Will has to be carried out by the
person who obtained letters of administration as is provided under section
216. As section 212 exempts Christians also from the operation of that
section, it is not mandatory for Christians to obtain letters of administration for
establishing right to the property of an intestate. Therefore, in the absence of a
Will a suit can be filed for establishing the rights which can be followed up by
partition. Against a preliminary decree in a suit for partition an appeal will lie
and Final Decree will be drawn up only after the decision in the appeal. To
give effect to the Final Decree, in case of difference of opinion among the
parties, execution proceedings will have to be instituted. For and on behalf of
the deceased, the grantee of probate or letters of administration alone shall
have power to sue or prosecute any suit or otherwise act as representative of
the deceased as is provided under section 216.