Intestate succession: non-Parsis and Parsis

1. Application of Part V

Part V does not apply to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina (section 29(1)). Subject to that, it is the law of India in all cases of intestacy (section 29(2)). It therefore governs Christians, Parsis, Jews and persons whose succession is regulated by the Act because they married under the Special Marriage Act, 1954. A person dies intestate in respect of all property he has not disposed of by a will capable of taking effect (section 30). Chapter II (sections 31 to 49) applies to non-Parsis; Chapter III (sections 50 to 56) to Parsis.

In Mary Roy v. State of Kerala, 1986 INSC 22, (1986) 2 SCC 209, the Supreme Court held that the Travancore Christian Succession Act, 1916, which gave a daughter only a small fixed sum, had stood repealed when Part V of the Indian Succession Act was extended to the former State of Travancore-Cochin in 1951. Christian daughters there inherit equally with sons.

2. Non-Parsi intestates: the spouse (sections 32 to 35)

Section 32: the property devolves on the wife or husband, or on the kindred, in the order the Chapter lays down. Section 33: where the intestate leaves a widow,

• (a) with lineal descendants: the widow takes one-third and the descendants two-thirds;
• (b) with no lineal descendant but kindred: the widow takes one-half and the kindred one-half;
• (c) with no kindred: the widow takes the whole.

Section 33A gives a widow with no lineal descendants the first Rs 5,000 of the net estate with interest, before the section 33 division of the rest; but by sub-section (5) it does not apply to Indian Christians or to their children and grandchildren. Section 34: if there is no widow, the property goes to the lineal descendants or to the kindred, and failing kindred, to the Government. Section 35: a widower has the same rights in his wife's property as a widow has in her husband's.

3. Lineal descendants (sections 36 to 40)

• Section 37: children only. The property (after the widow's share) is divided equally among the surviving children, sons and daughters alike.
• Section 38: no child, only grandchildren: equally among the grandchildren (per capita).
• Section 39: great-grandchildren or remoter only: equally among those nearest in degree.
• Section 40: descendants of different degrees, the intermediate ancestors being dead: the estate is divided per stirpes. One share goes to each child alive and one share for each predeceased child who has left descendants, those descendants taking the share their parent would have taken.

4. No lineal descendants (sections 41 to 48)

• Section 42: if the father is living, he takes the whole (after the widow's share).
• Section 43: father dead, mother and brothers or sisters living (no child of a deceased sibling): the mother and each brother and sister take equally. Full and half blood are treated alike.
• Section 44: father dead; mother, brothers or sisters, and children of a deceased sibling: all take equally, the nephews and nieces taking their parent's share.
• Section 45: father dead; mother and only children of deceased siblings: the mother and each deceased sibling's branch take equally.
• Section 46: father dead, mother living, no siblings or their children: the mother takes the whole.
• Section 47: no descendant and no parent: brothers and sisters equally, with children of deceased ones taking their parent's share.
• Section 48: none of the above: the nearest relatives in degree of kindred, equally. Degrees are counted as the illustrations show (grandparents in the second degree, uncles, aunts and nephews in the third).

Section 49: advancements made to a child in the intestate's lifetime are not brought into hotchpot; they are not deducted from the child's share.

5. Worked shares (non-Parsi)

• Widow, one son, two daughters; estate Rs 9 lakh. Widow 1/3 = Rs 3 lakh. Rs 6 lakh to the three children equally (section 37): Rs 2 lakh each.
• Widow and father; no descendants. Widow 1/2 (section 33(b)); father the other half (section 42).
• Widow, mother, one brother, one sister; father dead. Widow 1/2. The other 1/2 is divided among the mother, brother and sister equally (section 43): 1/6 each.
• No widow; one son living, and two children of a predeceased daughter. Section 40: two shares. The son takes 1/2; the daughter's two children share the other 1/2 (1/4 each).

6. Parsi intestates (sections 50 to 56)

The Parsi rules were rewritten in 1939 and amended by the Indian Succession (Amendment) Act, 1991, which removed the earlier rule that a son took double a daughter's share and equalised the position of widowers and widows of lineal descendants.

• Section 50: a child in the womb who is later born alive is treated as born; a lineal descendant who predeceased the intestate leaving no spouse or descendant is ignored; a widow or widower of a relative who remarried in the intestate's lifetime takes nothing.
• Section 51(1): the widow or widower and each child take equal shares; if there is no spouse, the children take equally.
• Section 51(2): where one or both parents survive in addition to children (or spouse and children), each parent takes half the share of each child.
• Section 53: the share of a predeceased child goes to that child's spouse and children (son's branch) or equally to her children (daughter's branch).
• Section 54: no lineal descendant, but a spouse or a widow or widower of a lineal descendant: the spouse alone takes one-half; spouse plus widow(er) of a descendant take one-third each; the residue goes to relatives in the order of Part I of Schedule II, males and females of the same degree taking equally.
• Section 55: no descendant and no such spouse: the next-of-kin in Part II of Schedule II take the whole, males and females of the same degree equally.
• Section 56: failing all of them, the nearest relatives in degree take equally.

Worked share (Parsi). A Parsi dies leaving a widow, a son, a daughter and his mother. Widow 1 unit, son 1, daughter 1, mother 1/2 (section 51(2)). Total 3.5 units. Widow, son and daughter take 2/7 each; the mother takes 1/7.

How this is examined

Essays ask for the rules of intestate succession among Christians, or among Parsis, or a comparison of the two. Short notes are set on the rights of a widow, or on distribution where there are no lineal descendants. Almost every answer gains from one or two worked shares like those above: state the section, the fraction and the figure.