The term “succession” ordinarily means the transmission of the property and the transmissible rights and obligations of the deceased. The property may be ancestral or self-acquired property may devolves in two ways i.e., a) By testamentary succession i.e., the deceased died by executing will bequeathing his properties to specific heirs and b) By intestate succession when the deceased died intestate without executing Will or any deeds. The transmission could either be by way of a will or by the operation of law. Every law of Succession defines the rules of distribution of property in case a person dies without making a Will. Intestacy is of two kinds, total intestacy and partial intestacy. In this article, we shall discuss intestate succession in Christians.

Total Intestacy:

When the deceased dies without making any valid will for his entire property, then the intestacy is called total intestacy. In such case the property will pass to the deceased’s relatives, as per deceased’s Personal Law based on his religion in an order. Thus, if X makes no will at all, it will be a case of total intestacy

Partial Intestacy:

A partial intestacy happens where an individual has left a will but, for one reason or another, the will does not fully deal with the whole of their property. If partial intestacy occurs, that part of the property will pass to the deceased’s relatives, as per deceased’s Personal Law based on his religion in an order. Not only does a partial intestacy lead to assets passing to beneficiaries the deceased never intended to benefit, it can also be costly and time-consuming. To avoid a partial intestacy, it is important to ensure that appropriate legal advice is taken when writing a will. Partial intestacies usually arise where the ‘testator’ (the person making the will) has not taken advice from legal professionals on the distribution of their property. If x makes a will only as regards his property in Delhi, and makes no will with respect to his property in Gurgaon, it will be a case of partial intestacy. X will then be deemed to have died intestate in respect of his property situated in Gurgaon.

Intestacy Under the Indian Succession Act:

According to Section 29 of the Indian Succession Act, 1925, Part V of the Act is not applicable to any intestacy occurring before the first day of January, 1866, or to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jain.

Section 2(d) of the Act defines “Indian Christian” means, 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 Religion. The religion of the deceased determines the Succession to his estate.

The rules relating to Intestate Succession among Christians governed under Sections 29 to 49 in Part V of Indian Succession Act. But if there is a will executed by the deceased, the General Law as contained in Sections 57 to 391 would apply. These provisions are also applicable to Jews and foreigners who died intestate.

This Act recognizes three types of heirs for Christians: a) Spouse, b) Lineal Descendants, and c) Kindred.

Lineal Descendants:

According to Section 25 of the Act, lineal consanguinity is that which subsists between two persons, one of whom is descended in a direct line from the other, as between a man and his father, grandfather and great-grandfather, and so upwards in the direct ascending line; or between a man and his son, grandson, great-grandson and so downwards in the direct descending line. The phrase “Lineal Descendant” means, “a Descendant born out of a lawful marriage”. 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.

Kindred or Consanguinity:

According to Section 24 of the Act, Kindred or consanguinity is the connection or relation of persons descended from the same stock or common ancestor. The term “Kindred” means, relations by blood through a lawful marriage. Therefore, relations by illegitimate birth are not recognized as Kindred under the Act. Kindred does not include relation by affinity such as mother-in-law or step mother or step father. Thus, a step father or a step mother has no legal right of Succession to the property of his or her step children. The position is the same in the case of a father-in-law as well.

Section 30: As to what property deceased considered to have died intestate

A person is deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect.

Illustrations:

• A has left no will. He has died intestate in respect of the whole of his property.
• A has left a will whereby he has appointed B as his executor, but the will contains no other provisions. A has died intestate in respect of the distribution of his property.
• A has bequeathed his whole property for an illegal purpose. A has died intestate in respect of the distribution of his property.
• A has bequeathed Rs. 1,000 to B and Rs. 1,000 to the eldest son of C and has made no other bequest. He dies, leaving a sum of Rs. 2,000 and no other property. C died before A without having ever had a son. A has died intestate in respect of the distribution of Rs. 1,000. (This is a case of partial intestacy.)

From what is stated above, it will be seen that a person is deemed to have died intestate into two cases: Firstly, when he has not made a will at all; and secondly, when he has made a will, but the same is not effective in a legal sense, or if it does not cover the whole of his property.

Rules in the Case of Intestates Other Than Parsis (Ss. 31 – 49):

According to Section 31 of the Act, chapter II of Part V of the Act is not applicable to parsis.

According to Section 32 of the act, the property of an intestate devolves upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules given in following sections contained in this Chapter.

Rights of Widower:

According to Section 35 of the Act, a husband surviving his wife has the same rights in respect of her property, if she dies intestate, as a widow has in respect of her husband’s property, if he dies intestate. Thus, a husband surviving his wife has the same rights in respect of her property, it she dies intestate, as a widow has in respect of the husband’s property, if he dies intestate. Thus, if the deceased intestate is a female, in the rules that follow, the word “widowers” is to be substituted in place of the word ”widow”.

Under the wording of this section , if the husband survives his wife he gets the same share in her property as laid down in ss.33 and 33A i.e.,

1. If there are lineal descendants, he gets one third and the remaining two third to the lineal descendants
2. If there are no lineal descendants but kindred his share is one half and the remaining one half will go to the kindred.
3. If there are no kindred, he takes the whole
4. If the net value of wife’s estate does not exceed Rs 5000 and if the wife dies intestate leaving no lineal descendants, then also the husband will get the whole property. (
5. If the net value of wife’s estate exceeds Rs 5000, the share of the husband will be in terms of s.33A(3).

General Rules of Distribution of Property:

 The rules for the distribution of the intestate’s property are laid down in s.37 to 40 when there are lineal descendants and in s.41 to 48, when there are no lineal descendants but kindred, and the order of distribution is as follows:-

1. To deduct first the share of the husband or wife as the case may be
2. If there are lineal descendants, to distribute the residue (or the whole if there is no husband or wife) amongst the lineal descendants in the shares and proportions laid down in s.37 to 40
3. If there are no lineal descendants, then only to distribute the residue (or the whole if there is no husband or wife) amongst the kindred of the intestate in the shares and proportions laid down in s.42 to 48.

Rules of Distribution Amongst Lineal Descendants

Where Deceased has Left Widow and Lineal Descendants but No Grandchildren:

One-third of his property shall belong to his widow, and the remaining two-thirds shall go to his lineal descendants. (S. 33(a)). Thus, the distribution of property amongst the legal heirs takes place after deducting the share of the surviving spouse of the deceased. When an intestate has left a widow and if he has left lineal descendants, i.e., Children and Children’s Children, 1/3rd of his property shall belong to the widow, and the remaining two third shall go to the lineal descendants.

Example 01:

A deceased has left widow and 3 lineal descendants two sons S1, S2 and one daughter D1 only and no grandchildren and a Property of Rs. 4,50,000

Thus, widow will get 1/3 of Rs. 4,50,000 i.e,. Rs. 1,50,000. Remaining 4,50, 000 – 1,50,000 = 3,00,000 will be distributed among the lineal descendants equally as directed in Section 37 of the Act. Thus S1, S2 and D1 will get Rs. 1,00,000 each

According to Section 37 of the Act, where the intestate has left surviving him a child or children, but no more remote lineal descendant through a deceased child, the property shall belong to his surviving child, if there is only one, or shall be equally divided among all his surviving children. As per the interpretation of this section it implies that the property of the deceased will be divided amongst all surviving children of the deceased equally.

Where the intestate has left a widow and a child, the widow gets one third and the child gets two thirds. If there is no widow, the child gets whole. If there are more than one child lineal descendants of the first degree, they take equally whether male or female. A posthumous child has the same right as if it was actually born at the date of death of the intestate, (Illustration iv of s.40). The shares inherited by the heirs including females, are always absolute and freely alienable. The word ‘child use in this section does not include illegitimate child.

Example 02:

A deceased has left widow and 3 lineal descendants one living son S1, one deceased son S2 and one living daughter D1 only and no grandchildren and a Property of Rs. 4,50,000

Thus, widow will get 1/3 of Rs. 4,50,000 i.e,. Rs. 1,50,000. Remaining 4,50, 000 – 1,50,000 = 3,00,000 will be distributed among the two surviving children equally as directed in Section 37 of the Act. Thus, S1 and D1 will get Rs. 1,50,000 each.

Where Deceased has Left Widow and No Child but Grandchildren:

According to Section 38 of the Act, when a person dies intestate leaving behind no child but grandchild or grandchildren, and no descendant through a deceased grandchild, then such property shall devolve upon equally on all surviving grandchildren.
Illustrations:

1. A has three children, and no more, John, Mary and Henry. They all die before the father, John leaving two children, Mary three and Henry four. Afterwards A dies intestate, leaving those nine grandchildren and no descendant of any decreased grandchild. Each of his grandfather will have one-ninth.
2. But if Henry has died, leaving no child, then the whole is equally divided between the intestate’s five grandchildren, the children of John and Mary.

According to Section 39 of the Act, the property shall go to the surviving lineal descendants who are nearest in degree to the intestate, where they are all in the degree of great-grandchildren to him, or are all in a more remote degree.

Example 03:

A deceased has left widow and 3 lineal descendants 2 Grandsons of deceased son S1, one daughter of second deceased son S2 and 2 granddaughters of deceased daughter D1 and a Property of Rs. 4,50,000.

Thus, widow will get 1/3 of Rs. 4,50,000 i.e,. Rs. 1,50,000. Remaining 4,50, 000 – 1,50,000 = 3,00,000 will be distributed among the grandchildren.

Per Capita Distribution:

A distribution of property is said to be per capita ( i.e., individually ), if it is divided amongst those all entitled to it in equal shares. There are 2 + 1 + 2 = 5 grandchildren. Thus, each grandchild will get 3,00,000/5 = Rs. 60,000

Per Stripe Distribution:

The distribution is said to be per stirpes (i.e., by stock or branches) if it is divided amongst all those entitled to it according to the number of stocks of descent, that is, if it is divided equally amongst the surviving children of an intestate individually, and the descendants of deceased children collectively, so that the descendants of a deceased child take that child’s share between them.

There are three children, thus 3 stripes. Each stripe will get equal property. Thus, each stripe will get Rs. 3,00,000/3 = Rs. 1,00,000

In the first stripe of first son there are two grandchildren. Thus, children of son S1 will get 1,00,000/2 = Rs. 50,000

In the second stripe of second son there is only 1 grandchild. Thus, the child of son S2 will get 1,00,000/1= Rs. 1,00,000

In the third stripe of the daughter there are two grandchildren. Thus, children of son S1 will get 1,00,000/2 = Rs. 50,000

Notes:

• If deceased left only great-grandchildren or remoter lineal descendants, grandchild or grand-children or great-grandchildren, the division among them has to be per capita.
• If, however, the lineal descendants are not in the same degree, the division has to be per stirpes.

Where Deceased has Left Lineal Descendants Not All in Same Degree of Kindred to Him, and Those Through Whom the More Remote:

According to Section 40 (1) of the Act, if the intestate has left lineal descendants who do not all stand in the same degree of kindred to him, and the persons through whom the more remote are descended from him are dead, the property shall be divided into such a number of equal shares as may correspond with the number of the lineal descendants of the intestate who either stood in the nearest degree of kindred to him at his decease, or, having been of the like degree of kindred to him, died before him, leaving lineal descendants who survived him.

According to Section 40 (2) of the Act, one of such shares shall be allotted to each of the lineal descendants who stood in the nearest degree of kindred to the intestate at his decease; and one of such shares shall be allotted in respect of each of such deceased lineal descendants; and the share allotted in respect of each of such deceased lineal descendants shall belong to his surviving child or children or more remote lineal descendants, as the case may be; such surviving child or children or more remote lineal descendants always taking the share which his or their parent or parents would have been entitled to respectively if such parent or parents had survived the intestate

Illustrations:

• A had three children, John, Mary and Henry; John died, leaving four children, and Mary died, leaving one, and Henry alone survived the father. On the death of A, intestate, one-third is allotted to Henry, one-third to John’s four children, and the remaining third to Mary’s one child.
• A left no child, but left eight grandchildren, and two children of a deceased grandchild. The property is divided into nine parts, one of which is allotted to each grandchild, and the remaining one-ninth is equally divided between the two great-grandchildren.
• A has three children, John, Mary and Henry; John dies leaving four children; and one of John’s children dies leaving two children. Mary dies leaving one child. A afterwards dies intestate. One-third of his property is allotted to Henry, one-third to Mary’s child, and one-third is divided into four parts, one of which is allotted to each of John’s three surviving children, and the remaining part is equally divided between John’s two grandchildren.
• A has two children, and no more, John and Mary. John dies before his father, leaving his wife pregnant. Then A dies leaving Mary surviving him, and in due time a child of John is born. A’s property is to be equally divided between Mary and the posthumous child.

Distribution Where No Lineal Descendants:

Where Deceased has Left only Widow, No lineal Descendants, and No Kindred:

According to Section 33(c) of the Act, if the deceased has left none who are of kindred to him, the whole of his property shall belong to his widow.

Where Deceased has Left Widow and Father:

According to Section 42 of the Act, if the intestate’s father is living, the widow will get one-half of the share and the father of the deceased will get one-half of the share. The father will get the whole, if the widow of intestate is no more, irrespective of the fact that others among the kindred are alive.

Example 04:

A deceased has left widow and father and a Property of Rs. 4,00,000.

Thus, widow will get 1/2 of Rs. 4,00,000 i.e, Rs. 2,00,000. Remaining property of value 2,00, 000 will be given to father.

If there is no widow, then the whole property goes to the father.

Where Deceased has Left Widow, Mother, Brothers, Sisters and No Father:

According to Section 43 of the Act, if the intestate’s father is dead, but the intestate’s mother is living and there are also brothers or sisters of the intestate living, and there is no child living of any deceased brother or sister, the mother and each living brother or sister shall succeed to the property in equal shares. Thus, Where the intestate’s father is dead, but his mother, brothers, and sisters are living the widow will get one-half share and the remaining one-half share will be divided equally between mother, sisters, and brothers.

Illustration:

A dies intestate, survived by his mother and two brothers of the full blood, John and Henry, and a sister Mary, who is the daughter of his mother but not of his father. The mother takes one-fourth, each brother takes one-fourth and Mary, the sister of half blood, takes one-fourth.

Example 05:

A deceased has left widow, mother, brothers, sisters and no father

Thus, widow will get 1/2 of Rs. 4,00,000 i.e, Rs. 2,00,000. Remaining property of value 2,00, 000 will be given to mother, brothers, sisters divided equally.

If there is no widow, then the whole property goes to the mother, brothers, sisters.

Where Deceased has Left Widow and No Lineal Descendants but has left Kindred:

According to Section 33(b) of the Act, if the deceased has left no lineal descendant, but has left persons who are of kindred to him, one-half of his property shall belong to his widow, and the other half shall go to those who are kindred to him, in the order. According to Section 33(c) of the Act, if the deceased has left no lineal descendants and none who are of kindred to him, the whole of his property shall belong to his widow.

According to Section 33A of the Act,

1. Where the intestate has left a widow but no lineal descendants and the net value of his property does not exceed five thousand rupees, the whole of his property shall belong to the widow.
2. Where the net value of the property exceeds the sum of five thousand rupees, the widow shall be entitled to five thousand rupees thereof and shall have a charge upon the whole of such property for such sum of five thousand rupees, with interest thereon from the date of the death of the intestate at 4 per cent. per annum until payment.
3. The provision for the widow made by this section shall be in. addition and without prejudice to her interest and share in the residue of the estate of such intestate remaining after payment of the said sum of five thousand rupees with interest as aforesaid, and such residue shall be distributed in accordance with the provisions of section 33 as if it were the whole of such intestate’s property.
4. The net value of the property shall be ascertained by deducting from the gross value thereof all debts, and all funeral and administration expenses of the intestate, and all other lawful liabilities and charges to which the property shall be subject.
5. This section shall not apply

a) to the property of—

(i) any Indian Christian,

(ii) any child or grandchild of any male person who is or was at the time of his death an Indian Christian, or

(iii) any person professing the Hindu, Buddhist, Sikh or Jain religion the succession to whose property is, under section 24 of the Special Marriage Act, 1872 (3 of 1872), regulated by the provisions of this Act;

(b) unless the deceased dies intestate in respect of all his property.

According to Section 33A (4) of the Act, the property mentioned in this sub section is both movable and immovable property. It is the gross value of the estate minus the following. debts left by the intestate, his funeral expenses, administration expenses e.g., payment of duty and expenses of petition and costs of an administration suit if any and all other lawful liabilities and charges.

According to Section 33A (5a) (i) and (ii) of the Act, Indian Christians and any child or grandchild of any male Indian Christian are excluded from the benefit of this section, even if they died intestate in respect of all other property. To them, S.33 will apply.

According to Section 33A (5a) (iii) of the Act, Hindus, Buddhists, Sikhs and Jains, succession to whose property under s.24 of the Special Marriage Act , 1954 is regulated by the provisions of this section are also excluded from the benefit of this section, and therefore the widow of such a person dying intestate is excluded from the benefit of this section.

Example 06:

Let us assume deceased has left widow, no lineal descendants and 2 kindred brothers of same degree K1 and K2 and a Property of Rs. 4,00,000.

Thus 4,00,000/2 = Rs. 2,00,000 will go to wife and remaining Rs. 2,00,000 will go to kindred brothers of which each will get 2,00,000/2 = Rs. 1,00,000

Example 07:

Let us assume deceased has left only widow, no lineal descendants and no kindred and a Property of Rs. 4,00,000.\

Thus, whole property goes to the widow only.

Father Dead, Mother, Brother, Sister and Children of Deceased Siblings Living:

According to Section 44 of the Act, where the intestate’s father is dead and his mother, a brother or sister, and children of any deceased brother or sister, are living then the widow will get one half share and the remaining one-half share will be divided equally per stirpes by mother, brother, sister and children of deceased brother or sister. Such children (if more than one) would equally divide the share of their deceased parent amongst themselves.

Illustration:

A, the intestate, leaves his mother, his brothers John and Henry, and also one child of a deceased sister, Mary, and two children of George, a deceased brother of the half blood who was the son of his father but not of his mother. The mother takes one-fifth, John and Henry each takes one-fifth, the child of Mary takes one-fifth, and the two children of George divide the remaining one-fifth equally between them.

Father Dead, Mother and Children(s) of Deceased Siblings Living:

According to Section 45 of the Act, where the intestate’s father is dead and his mother and children of any deceased brother or sister are living then the widow will have one half share, and the remaining one-half share will be divided equally per stirpes by mother and children of deceased brother and sister. Such children if there are more than one, would equally divide the share of their deceased parent amongst themselves.

Illustration:

A, the intestate, leaves no brother or sister but leaves his mother and one child of a deceased sister, Mary, and two children of a deceased brother, George. The mother takes one-third, the child of Mary takes one-third, and the children of George divide the remaining one-third equally between them.

Where Deceased has Left Only Mother:

According Section 46 of the act, Where the intestate’s father is dead, but his mother is living and has no brother, sister, nephew, or niece, then the widow will get one-half share and the mother will get the remaining one-half share. If no widow of the intestate, then the entire property will go to the mother.

Where Deceased has Left Neither Lineal Descendant, nor Father, nor Mother:

According to Section 47 of the Act, where intestate has left neither lineal descendant, nor father, nor mother, then the widow will get one-half share and remaining one-half share will be equally divided per stirpes between his brothers and sisters and children of deceased brothers and sisters. Such children, if more than one, would equally divide the share of their deceased parent amongst themselves.

Where Deceased has Left Neither Lineal Descendant, nor Parent, nor Brother, nor Sister:

According to Section 48 of the Act, where intestate has left neither parent, nor lineal descendant, nor any sibling, the widow will get one-half share and the remaining one-half share will be divided equally amongst the kindred who are at the nearest degree to the intestate such as grand-father and grand-mother. The property will be equally shared by them. Any surviving uncles, aunts, great-grandfather, great-grandmother will be excluded as they are third-degree kindred. On the other hand, if second-degree kindred is not living, then the property will be equally divided amongst all the kindred in the third-degree, fourth-degree kindred will be excluded, and so on.

Where deceased has left no relatives:

According to Section 34 of the Act, where the intestate has left no widow, his property shall go to his lineal descendants or to those who are of kindred to him, not being lineal descendants and if he has left none who are of kindred to him, it shall go to the Government. Thus, if there are no heirs, whatsoever to the estate, the Doctrine of Escheat can be invoked by the Government, where upon the estate of the deceased will revert to Government.

Notes:

• 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.
• 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.
• A Hindu Converts to Christianity will be bound solely by the Succession laws governing Christians, inclusive of the Indian Succession Act, 1925. The religion of the heirs will not act as estoppel with regard to succession even the Hindu father of a son who had converted to Christianity was held entitled to inherit from him after his death. When a Hindu convert to Christianity dies intestate, it is the father, who succeeds to the property. The religious faith of the father is immaterial for the purpose of succession, it is that the deceased should have belonged to Christian Religion on the date of his death.
• In case of a Christian daughter, she has no pre-existing right in the family property and her rights arise when her parents die intestate.
• If an order under the Indian Divorce Act 1869 is passes for judicial separation, whilst the separation continues, the wife is from the date of the order, considered to be an unmarried woman with respect to her property and in case she dies intestate her property becomes distributable as if her husband had been then dead.

Effect of Conversion to Christianity:

In Ganga devi v Bijai Singh, AIR 1952 All 244 case, where a Hindu marries under the Special Marriage Act 1954 and dies intestate leaving his widow was married to him under the Special Marriage Act 1954 and a son by a previous Hindu Wife. The Court held that the widow is entitled to only one third and the son as the lineal descendant is entitled to the two third.

If a Hindu becomes a convert to Christianity and dies leaving a Christian widow and a Hindu brother and sister, the distribution will be according to the Indian Succession Act, 1925 and the widow will take half and the brother and sister will take half equally. But if a Hindu marries a Hindu girl and then becomes a Christian, whereupon the Hindu wife refuses to live with him and renounces all claims to his estate, she is not entitled to her share as a widow.

Conclusion:

In the case of people professing the Christian faith, the Indian Succession Act, 1925, governs succession, sections 31 to 49 are applicable to them. It is to be noted that these provisions are also applicable on people belonging to the Jewish Faith and to foreigners living in India. Where a person dies intestate his property will devolve upon to his successors in different shares depending upon the class of heir