SUCCESSION FOR MOHAMMEDANS, PARSIS AND CHRISTIANS

The law of succession is the law governing the
transmission of property vested in a person at the time of his/her¹
death to some other person or persons. Generally, succession can broadly be
divided into “intestate” and “Testate/Testamentary” succession.

Intestate succession is when a person leaves behind no Will (or to the extent
of that part of the estate of the deceased not covered under the Will of the
deceased) and the estate of the deceased is distributed among the heirs of the
deceased as per the laws applicable to the succession of the estate of the
deceased (which in India would usually depend upon the religion professed by
the deceased at the time of his death). Testamentary succession is when the
deceased leaves behind a Will and his estate is distributed as per his wishes
as expressed in his Will.

In matters
relating to succession of property (both testate and intestate) in the case of
Christians and Parsis in India, the provisions of the Indian Succession Act
1925 (“Succession Act”) would apply. However, in the case of Mohammedans,
Mohammedan personal law would apply to both testate as well as intestate
succession, except under certain circumstances which are dealt with below.

B. SUCCESSION FOR
MOHAMMEDANS

Mohammedans are broadly divided into two sects,
namely, the Sunnis and Shias. The Sunnis are divided into four sub-sects,
namely, the Hanafis, the Malikis, the Shafeis and the Hanbalis. Shias are
divided into 3 sects namely, Athna-Asharias, Ismailyas and Zaidyas. The
principles of intestate succession differ for Hanafis (Sunnis) and Shias. As
most Sunnis are Hanafis, the presumption is that a Sunni is governed by Hanafi
law. However, Khojas who are a sect of Ismailyas are, in certain matters
relating to testate succession, governed by Hindu law (by virtue of custom).

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1.  In
this Article, a reference to the masculine gender shall include the feminine
gender, except as otherwise stated.

In India, as
per section 2 of the Shariat Act, 1937 (“Shariat Act”), matters relating to
succession and inheritance of a Mohammedan, are governed by Mohammedan Personal
Law (as applicable to the sect of Mohammedans to which the deceased belongs),
except;

I)     in respect of certain sects of Mohammedans
viz. Khoja Muslims, in the case of testate succession where such
sect followed a different custom from Mohammedan personal law then in such
cases customary law would apply, (except where the concerned Mohammedan makes a
declaration before the prescribed authority that he/she would like to be
governed by Mohammedan personal law in such matters as contemplated u/s. 3 of
the Shariat Act); and

II)    where a Mohammedan is married under the
provisions of the Special Marriage Act, 1954, in which case the Indian
Succession Act, 1925 becomes applicable to such person and his issues in all
matters of succession (that is both testate and intestate succession).

The
principles of Mohammedan law remain mostly uncodified and thus there exists no
statute or legislation that governs succession for Mohammedans. Courts in India
apply the principles of Mohammedan law [(which are derived from 4 sources, viz,
the Koran, the Sunna (tradition), Ijmaa (consensus of opinion) and Qiyas
(analogical deduction)] to deal with matters of succession with respect to the
Mohammedans in India.

1. Testamentary
Succession: –

The following
basic rules and principles should be borne in mind in respect of testamentary
succession of Mohammedans, based on Mohammedan personal law read with customary
law (as applicable to Khoja Muslims) and relevant Sections of the Succession
Act.

(i) Subject
to the below, every Mohammedan of sound mind and not a minor may dispose of his
property by Will.

(ii) A
Mohammedan cannot dispose of by Will more than one-third of what remains of his
property after his funeral expenses and debts are paid unless his heirs consent
to the bequest in excess of one-third of his property.

(iii) A Khoja
Mohammedan may dispose of the whole of his property by Will. The making and
revocation of Khoja Wills and validity of trusts and waqfs created
thereby are governed by Mohammedan law, but apart from trusts and waqfs,
the construction of a Khoja Will is governed by Hindu Law.

(iv) In the
case of Sunni Muslims, while a bequest to a stranger (i.e. a person who is not
an heir) to the extent of one-third of his property is permissible, any bequest
to an heir is not valid unless the other heirs of the Testator consent to such
bequest, even if the bequest is within this permissible limit of one-third. The
consent of the other heirs to such bequest must be given after the death of the
Testator.

(v) In the
case of Shia Muslims however, a bequest may be made to a stranger and/or to an
heir (even without the consent of the other heirs) so long as it does not
exceed one-third of the estate of the Testator. However, if it exceeds one-third
of the Testator’s property, it is not valid unless the other heirs consent to
this, which consent may be given either before or after the death of the
Testator.

(vi) A
bequest to a person not yet in existence at the Testator’s death is void, but a
bequest may be made to a child in the womb, provided he is born within six
months from the date of the Will.

(vii)
Succession to the property of a Mohammedan whose marriage is solemnised under
the Special Marriage Act and also of the issue of such marriage, shall be
regulated by the provisions of the Succession Act and accordingly, there would
be no restriction on him bequeathing more than 1/3^rd of his property
to any person and the consent of his heirs would not be required, even to
bequeath more than one-third of the property.

(viii) No
writing is required to make a valid Will and no particular form is necessary.
Even a verbal declaration is a Will. The intention of the Testator to make a
Will must be clear and explicit and form is immaterial.

(ix) A
Mohammedan Will may, after due proof, be admitted in evidence even though no
probate has been obtained.

2. Intestate
Succession: –

Distributions on intestacy as per Hanafi Law:

As per Hanafi Law there are three classes
of heirs, namely:

(i)
“Sharers”- being those who are entitled to a prescribed share of the
inheritance as per Mohammedan law

(ii)
“Residuaries” being those who take no prescribed share, but succeed to the
residue after the claims of the Sharers are satisfied

(iii)
“Distant Kindred” are all those relations by blood who are neither Sharers nor
Residuaries

The first
step in the distribution of the estate of a deceased Mohammedan (governed by
Hanafi law), after payment of his funeral expenses, debts, and legacies, is to
allot the respective shares to such of the relations as belong to the class of
Sharers who are entitled to a share.

The next step
is to divide the residue (if any) among such of the Residuaries as are entitled
to the residue. If there are no Sharers, the Residuaries will succeed to the whole
inheritance.

If there are
neither Sharers nor Residuaries, the inheritance will be divided among such of
the distant kindred as are entitled to succeed thereto. The distant kindred are
not entitled to succeed so long as there is any heir belonging to the class of
Sharers or Residuaries. But there is one exception to the above rule where the
distant kindred will inherit with a Sharer, and that is where the wife or
husband of the deceased is the sole Sharer and there are no other
Sharers or Residuaries.

The question
as to which of the relations belonging to the class of Sharers, Residuaries, or
distant kindred, are entitled to inherit the estate of the deceased and the
share which such relation will receive will depend upon the relationship of the
Sharer or Residuary with the deceased and the other surviving relations².

Distributions
on intestacy as per Shia Law:

As per Shia
law, heirs are divided into two groups, namely (1) heirs by consanguinity, that
is, blood relation, and (2) heirs by marriage, that is, husband and wife.

Heirs by
consanguinity are divided into three classes, and each class is subdivided into
two sections. These classes are respectively composed as follows: –

(i)    (a) Parents (b) children and other lineal
descendants h.l.s³.

(ii)   (a) Grandparents h.h.s⁴ (true⁵
as well as false⁶), (b) brothers and sisters and their descendants
h.l.s.

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2. See Mullas Principles
of Mohammedan Law (page [66(A and 74A)] Edn 20 for more details on the exact
share of each relation)

3. How low soever

4.  How high soever

5.  Male ancestor between
whom and the deceased no female intervenes

6.  Male ancestor between
whom and the deceased a female intervenes

(iii)   (a) Paternal, and (b) maternal, uncles and
aunts, of the deceased and of his parents and grandparents h.h.s and their
descendants h.l.s.

Amongst these
three classes of heirs, the heirs of the first (if living) exclude the heirs of
the second and third from inheritance, and similarly the second excludes the
third. But the heirs of the two sections of each class succeed together, the
nearer degree in each section excluding the more remote in that section.

Husband or
wife is never excluded from succession, but inherits together with the nearest
heirs by consanguinity, the husband taking 1/4 (when there is a lineal
descendant) or 1/2 (when there is no such descendant) and the wife taking 1/8
(when there is a lineal descendant) or 1/4 (when there is no such descendant).⁷

C. SUCCESSION IN THE
CASE OF INDIAN CHRISTIANS AND PARSIS

The
Succession Act defines an “Indian Christian” to mean a native of India who is,
or in good faith claims to be, of unmixed Asiatic descent and who professes any
form of the Christian religion⁸. However, the term “Parsi” is not
defined under the Succession Act. The Bombay High Court has, however, held that
the word “Parsi” as used in the Succession Act includes not only the
Parsi Zoroastrians of India but also the Zoroastrians of Iran.

The
Succession Act applies to Parsis and Indian Christians for both testate and
intestate succession. In the case of testate succession, the same rules apply
to both Parsis and Indian Christians. However, the rules differ in the case of
intestate succession.

1. Intestate
Succession for Indian Christians: –

Devolution
of property of Christians in the case of intestacy: –

In the case of Christians, the property of an
intestate devolves upon his/her heirs, in the order and according to rules laid
down under Chapter II, part V of the Succession Act. Some of the salient
principles of devolution are set out below-

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7.  See Mullas Principles of
Mohammedan Law (page [112] Edn 20 for more details on the exact share of each
relation)

8.  Section 2(d) of the
Act.

(i)    If the deceased has left lineal descendants
i.e. one or more children, or remote issue, the widow’s share is 1/3^rd
and the remaining 2/3^rd devolves upon the lineal descendants. In
case the deceased has left no lineal descendants but only a father, mother,
other kindred etc., the widow gets one half and the other half goes to the
kindred. But if there is no kindred, the widow gets the whole estate. [Note:
the rights of a widow in respect of her husband’s property are similar to those
of the surviving husband in respect of the property of his wife.]

(ii)   Where the intestate has left no widow, his
property shall go entirely to his lineal descendants and in the absence of
lineal descendants, to those who are kindred to him (not being lineal
descendants) in proportions laid down in sections 41 to 48 of the Succession
Act.

(iii)   Though the Indian law does not otherwise
expressly recognise adoption by Christians, the courts have held that an
adopted child is deemed to have all the rights of succession that are available
to a natural-born child⁹.(iv)            A
posthumous child has the same rights as if he was actually born at the time of
the death of the intestate.

1.1. The rules for
distribution of Intestate’s property with some examples: –

Distribution
where there are lineal descendants:

Sections 37
to 40 of the Succession Act lay down the rules of distribution of the property
of an intestate (after deducting the share of a widow, if the intestate has
left a widow), where the intestate had died leaving lineal descendants and the
rules of distribution are as under:

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9. Joyce Pushapalath
Karkada Alias vs. Shameela Nina Ravindra Shiri (Regular First Appeal No. 849 of
2010)

Distribution where there are no lineal
descendants:

Sections 42 to 48 of the Succession Act lay
down the rules of distribution of the property of an intestate, where the
intestate had died without leaving children or remoter lineal descendants and
the rules of distribution are as under in order of priority:

2. Succession for
Parsis: –

2.1 Intestate
Succession: –

Parsis
are governed by the rules for Parsi intestates which are laid down under Part V
Chapter III of the Act. A Parsi intestate’s property is distributed among his
heirs in accordance with sections 51-56 of the Act. General principles
relating to intestate succession:

2.2 No share for a
lineal descendant of an Intestate who dies before the Intestate

If a child or
remoter issue of a Parsi intestate has predeceased him, the share of such child
shall not be taken into consideration, provided such predeceased child has left
neither;

(i) a widow
or widower; nor

(ii) a child
or children or remoter issue; nor

(iii) a widow
of any lineal descendant of such predeceased child. If a predeceased child of a
Parsi intestate leaves behind surviving any of the above mentioned relatives,
then such a child’s share shall be counted in making the division as provided
in section 53. If a predeceased child or remoter lineal descendant of a Parsi
intestate leaves a widow or widower and a child or children, then if such
predeceased child is a son, his widow and children will take the share of such
predeceased son. If such predeceased son leaves a widow or a widow of a lineal
descendant, but no lineal descendant, then the share of such predeceased son
shall be distributed as provided u/s. 53(a) proviso.

Further, if
such predeceased child is a daughter, her widower shall not be entitled to
anything u/s. 53(b), but such daughter’s share shall be distributed amongst her
children equally and if she has died without leaving lineal descendant, her
share is not counted at all.

No share is
given to a widow or widower of any relative of an intestate who has married
again in the lifetime of the intestate. However, the exception to this rule
would be the mother and paternal grandmother of the intestate and they would
get a share even if they have remarried in the lifetime of the intestate.

2.3
Rules for division of the Intestate’s property:

Sections 51 to 56 lay down the rules of division of the property of
an intestate Parsi and the rules of distribution are as under:

D. SUCCESSION
PRINCIPLES COMMON FOR CHRISTIANS AND PARSIS

1. Rights of an
illegitimate child

Christian and
Parsi law do not recognise children born out of wedlock and deal only with
legitimate marriages (Raj Kumar Sharma vs. Rajinder Nath Diwan AIR 1987 Del
323). Thus, the relationship under various sections under the Succession
Act relating to the Christian and Parsi succession, is the relationship flowing
from a lawful wedlock.

1.1 Difference between
Christian and Parsi succession laws and succession laws of other religions:

The law for
Christians and Parsis does not make any distinction between relations through
the father or the mother. In cases where the paternal and maternal sides are
equally related to the intestate, all such relations shall be entitled to
succeed and will take equal share among themselves¹⁰.

Further there is no difference when it comes to full-blood/half-blood/uterine
relations; and a posthumous child is treated as a child who was present when
the intestate died, so long as the child has been born alive and was in the
womb when the intestate died¹¹.

2. Testamentary
Succession (applicable to both Christians and Parsis)

2.1 Wills and Codicils

2.1.1 Persons capable of making Wills: Every person of sound mind not being a
minor may dispose of his property by Will¹². Thus, a married woman,
or other persons who are deaf, dumb or blind are not thereby incapacitated from
making a Will if they are able to know what they do by it. Thus, the only
people who cannot make Wills are people who are in an improper state of mind
due to intoxication, illness, etc.

2.1.2 Testamentary
Guardian:
A father has been given the right to appoint by Will, a guardian or guardians
for his child during minority.

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10.            Section 27
of the Act

11.            Section 27
of the Act

12.            Section 59
of the Act

2.1.3 Revocation
of Will by Testator’s marriage: All kinds of wills stand revoked by marriage which takes place
after the making of the Will¹³.

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13.            Section 69

2.1.4 Privileged and Unprivileged Wills: Wills that fulfil the essential
conditions laid down u/s. 63 of the Succession Act are called Unprivileged
Wills and Wills executed u/s. 66 of the Succession Act are called Privileged
Wills.

As per section 63 of
the Succession Act inter alia states that every Will must be signed by
the person making the Will (“Testator”) or his mark must be affixed thereto or
signed by a person as directed by the Testator and in the presence of the
Testator. The Will must also be signed by at least two witnesses, each of whom
has seen Testator sign the Will or affix his mark or seen some other person
sign the Will in the presence of the Testator.

A Privileged Will
made u/s. 66 of the Succession Act is one which is made by a soldier employed
in an expedition or engaged in actual warfare, or by an airman so employed or
engaged, or by mariner being at sea and such Wills can be either in writing or
oral. A Privileged Will need not be signed by the Testator, nor attested in any
way. In case of unprivileged wills, the mode of making, and rules for executing
privileged Wills shall be in accordance with Section 66 of the Act and many
requirements such as attestation or signature of the Testator are not required
in such special Wills.

2.1.5  Bequests to religious and
charitable causes: Section 118 of the Succession Act (which applies to Christians but
not Parsis) which provides that no man having a nephew or niece or any nearer
relative shall have power to bequeath any property to religious or charitable
uses, except by a Will executed not less than twelve months before his death,
and deposited within six months from its execution in some place provided by
law for the safe custody of the Wills of living persons, was struck down as
being unconstitutional by the Supreme Court, and therefore Christians and
Parsis can leave their property to charity without being bound by the above
condition.¹⁴

2.2 Probate: –

2.2.1 Parsis: In case of
a Parsi dying after the commencement of the Act, a probate is necessary if the
will in question is made or the property bequeathed under the will is situated
within the “ordinary original civil jurisdiction” of Calcutta, Madras and
Bombay and where such wills are made outside those limits in so far as they
relate to immovable property situated within those limits¹⁵.

2.2.2 Christians: It is not
mandatory for a Christian to obtain probate of his Will¹⁶.

To
conclude, it may be noted that the laws of
succession differ drastically depending upon the personal law by which the
deceased person is governed at the time of his death. The religion which a
person purports to profess at the time of his/her death (or is known to have
last followed) would determine the personal law applicable to the succession of
the deceased person’s property. Therefore, it is essential to know and
understand the personal laws applicable to the person making a Will or planning
the succession of his estate. Further, in some cases, the law has evolved
through judicial precedents and therefore apart from the letter of the law
spelt out in the statute, it would be advisable to acquaint oneself with
judicial precedents, to ascertain the present position.

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14.            Section 213
(2)

15.            Section 213
(2)

16. Section 213 (2)