The word “Parsi” has not been defined in the Indian Succession Act. Under the Parsi Marriage and Divorce Act, the term refers to a Parsi Zoroastrian. So, the children of a Parsi father would be Parsis, even if their mother is a non–Parsi, provided they are admitted into the Parsi religion and profess the Zoroastrian religion. However, children of a Parsi mother would not be Parsis, it their father is a non-Parsi. Sections 50-56 of the Indian Succession Act, 1925 deals with the intestate succession in parsis.
In Raj Kumar Sharma v. Rajinder Nath Diwan, AIR 1987 Del 323 case, the Court held by the court that the children born out of wedlock are not to be recognized as legitimate children and deal only with children born out of legitimate marriages. Hence, the relationship under the Succession Act relating to the Parsi Succession flows from the lawful wedlock.
General Principles Relating to Intestate Succession Among Parsis:
Section 50 of the Indian Succession act, 1825 gives general principles of succession in case of intestate Parsi as follows:
(a) There is no distinction between those who are actually born in the lifetime of the deceased and those who at the date of his death were only conceived in the womb, but who have subsequently been born alive. In other words, a posthumous child is to be deemed to be in existence, provided he was conceived when succession opened and is then born alive. Thus, A posthumous child is treated as a lawful successor similarly to those born during the lifetime of the intestate, as long as he is born alive and was in the womb of the mother when the intestate died.
(b) A lineal descendant of an intestate who has had died in the lifetime of the intestate, without leaving a widow (or widower) or any lineal descendants (like children or grandchildren) is not to be taken into account when determining succession to the property of the intestate. Thus, A lineal descendant of the intestate who dies during the lifetime of the intestate, without leaving his widow or children, shall be completely ignored when the distribution of the property of the intestate is done after his death.
(c) Where a widow (or widower) of any relative of an intestate has married again in the lifetime of the intestate, she (or he, as the case may be) is not entitled to receive any property of the intestate, and is deemed not to be existing at the time of the intestate’s death. In other words, a relative’s widow is disqualified from inheritance if she has remarried before the death of the intestate. This disqualification would also apply to a relative’s widower who re-marries. Thus, If the widow of any lineal descendant of the intestate marries during the lifetime of the intestate, then she will not be entitled to any share in the intestate’s property after his death and shall be considered as non-existing.
Division of Intestate’s Property Among Widow, Widower, Children and Parents:
Before the 1991 Amendment, separate rules were laid down for Parsi males and females. However, after the said Amendment, S. 51 lays down three simple rules, which apply to all Parsis dying intestate. Section 51 of the Act, gives provisions for the division of intestate’s property among widow, widower, children and parents as follows:
Where Deceased has Left Widow or Widower, Father and Children:
Section 51 of the Indian Succession Act, 1925 codifies the rules for the division of intestate property among widows, widower, children, and parents.
According to Section 51(2) of the Act, where a Parsi dies leaving one or both parents in addition to children or widow or widower and children, the property of which such Parsi dies intestate shall be so divided that the parent or each of the parents shall receive a share equal to half the share of each child.
Notes:
- The parents get the share only when the son dies without the will and not in the case of the daughter
- Parents does not include stepfather & stepmother.
- Sons and daughters include both full blood & half blood
Example 01:
If A dies intestate, leaving a widow W, a son S and his father F,
W and S will get equal shares (i.e., one share each), and F will get a half-share.
Ratio of share in property is W : S : F = 1 : 1 : 1/2 = 2 : 2 : 1
In other words, W will get 2/5 of A’s property. S will get 2/5, and F will get 1/5 of such property.
Where Deceased has Left Widow or Widower, Father, Mother and Children:
Example 02:
If A dies intestate, leaving a widow W, a son S and his father F and Mother M,
W and S will get equal shares (i.e., one share each), and F and M will get a half-share each.
Ratio of share in property is W : S : F : M = 1 : 1 : ½: ½ = 2 : 2 : 1 : 1
In other words, W will get 2/6 of A’s property. S will get 2/6, and F and M will get 1/6 of such property each.
Where Deceased has Left Widow or Widower and Children:
According to Section 51(1) (a) of the Act, where such Parsi dies leaving a widow or widower and children, among the widow or widower, and children so that the widow or widower and each child received equal shares.
Example 03:
If A dies intestate, leaving his widow W, his son S, and daughter D. Each of them will be entitled for equal share in A’s property.
Ratio of share in property is W : S : D = 1 : 1 : 1
In other words, each will get 1/3 of such property.
Where Deceased has Left Children, Neither Widow or Widower Nor Parents:
According to Section 51(1) (b) of the Act, where such Parsi dies leaving children, but no widow or widower, among the children in equal shares
Example 04:
If A dies intestate, leaving no widow (or widower), but three children, X. Y, and Z.
Ratio of share in property is X : Y : Z = 1 : 1 : 1
In other words, each will get 1/3 of such property.
Where Deceased has Left Children, Father: No Widow or Widower:
Example 05:
If A dies intestate, leaving a Three sons X, Y and Z, and his father F,
X and Y will get equal shares (i.e., one share each), and F will get a half-share.
Ratio of share in property is X : Y : Z : F = 1 : 1 : 1 : 1/2 = 2 : 2 : 2 : 1
In other words, X, Y, and Z, each will get 2/7 of A’s property and F will get 1/7 of such property.
Division of Share of Predeceased Child of Intestate Leaving Lineal Descendants:
Section 52 of the Act has been repealed. Section 53 defines the rules for the division of share of the predeceased child of intestate leaving lineal descendants. In all cases where a Paris dies leaving any lineal descendant, if any child of such intestate has died in the lifetime of the intestate, the division of the share of the property of which the intestate has died intestate which such child would have taken if living at the intestate’s death shall be in accordance with the following rules.
Where Deceased has Left Widow of Deceased Son and Children of the Deceased Son:
According to Section 53(a) of the Act, if such deceased child was a son, his widow and children shall take shares in accordance with the provisions of this Chapter as if he had died immediately after the intestate’s death: Provided that where such deceased son has left a widow or a widow of a lineal descendant but no lineal descendant, the residue of his share after such distribution has been made shall be divided in accordance with the provisions of this Chapter as property of which the intestate has died intestate, and in making the division of such residue the said deceased son of the intestate shall not be taken into account.
Where Deceased has Left Children of the Deceased Daughter:
According to Section 53(b) of the Act, if such deceased child was a daughter, her share shall be divided equally among her children.
Where Deceased has Left Remote Descendant of the Deceased Child:
According to Section 53(c) of the Act, if any child of such deceased child has, also died during the lifetime of the intestate, the share which he or she would have taken if living at the intestate’s death, shall be divided in like manner in accordance with clause (a) or clause (b), as the case may be.
According to Section 53(d) of the Act, where a remoter lineal descendant of the intestate has died during the lifetime of the intestate, the provisions of clause (c) shall apply mutatis mutandis to the division of any share to which he or she would have been entitled if living at the intestate’s death by reason of the predecease of all the intestate’s lineal descendants directly between him or her and the intestate.
Division of Property Where Intestate Leaves No Lineal Descendant but Leaves a Widow or Widower or a Widow or Widower of Any Lineal Descendant:
Section 54 specifies the rules where intestate leaves no lineal descendant but leaves a widow or widower or a widow or widower of any lineal descendant. Where a Parsi dies without leaving any lineal descendant but leaving a widow or widower or a widow or widower of a lineal descendant, the property of which the intestate dies intestate shall be divided in accordance with the following rules:
Where Deceased has Left Widow and no widow or Widower of Linear Descendant:
According to Section 54(a) of the Act, if the intestate leaves a widow or widower but no widow or widower of a lineal descendant, the widow or widower shall take half the said property. Thus, widow or widower will get 1/2 the property and relatives of deceased will get 1/2.
Where Deceased has Left Widow and widow or Widower of Linear Descendant:
According to Section 54(b) of the Act, if the intestate leaves a widow or widower and also a widow or widower of any lineal descendant, his widow or her widower shall receive one-third of the said property and the widow or widower of any lineal descendant shall receive another one-third or if there is more than one such widow or widower of lineal descendants, the last mentioned one-third shall be divided equally among them. Thus, widow or widower will get 1/3, the widow or widower of linear descendant will get 1/3 and relatives of deceased will get 1/3.
Where Deceased has Left Widow or Widower of Linear Descendant and No Widow:
According to Section 54(c) of the Act, if the intestate leaves no widow or widower, but one widow or widower of the lineal descendant, such widow or widower of the lineal descendant shall receive one-third of the said property or, if the intestate leaves no widow or widower but -more than one widow or widower of lineal descendants, two-thirds of the said property shall be divided among such widows or widowers of the lineal descendants in equal shares;
If there is one widow or widower of linear descendant, then the widow or widower will get 1/3 and relative will get 2/3.
If there are more than one widows or widowers of linear descendant, then the widows or widowers will get 2/3 and relative will get 1/3.
Distribution of Property Among Relatives After Completing Distributions under 54(a), 54(b), and 54(c):
According to Section 54(d) of the Act, the residue after the division specified in clause (a), or clause (b) or clause (c) has been made shall be distributed among the relatives of the intestate in the order specified in Part I of Schedule II; and the next-of-kin standing first in Part I of that Schedule shall be preferred to those standing second, the second to the third and so on in succession, provided that the property shall be so distributed that each male and female standing in the same degree of propinquity shall receive equal shares.
The share will be distributed in the following order and the next -of-kin standing first will be preferred to those standing second and second to third and so on.
- Father and mother.
- Brothers and sisters (other than half brothers and sisters) and lineal descendants of such of them as shall have predeceased the intestate.
- Paternal and maternal grandparents.
- Children of paternal and maternal grandparents and the lineal descendants of such of them as have predeceased the intestate.
- Paternal and maternal grandparents’ parents.
- Paternal and maternal grandparents’ parents’ children and the lineal descendants of such of them as have predeceased the intestate.
Where Deceased has Left No Relative Entitled to the Residue Under Clause 54(d):
According to Section 54(e) of the Act, if there are no relatives entitled to the residue under clause (d), the whole of the residue shall be distributed in proportion to the shares specified among the persons entitled to receive shares under this section.
Division of property where intestate leaves neither lineal descendants nor a widow or widower nor a widow or widower of any lineal descendant.
Section 55 defines the rules for the division of property where a Parsi who dies intestate is not survived by the widow/widower, no lineal descendants, no widow of any lineal descendant.
According to Section 55 of the Act, when a Parsi dies leaving neither lineal descendants nor a widow or widower nor a widow or widower of any lineal descendant his or her next of-kin, in the order set forth in Part II of Schedule II, shall be entitled to succeed to the whole of the property of which he or she dies intestate. The next-of-kin standing first in Part II of that Schedule shall be preferred to those standing second, the second to the third, and so on in succession, provided that the property shall be so distributed that each male and female standing in the same degree of propinquity shall receive equal shares.
The share will be distributed in the following order and the next -of-kin standing first will be preferred to those standing second and second to third and so on.
- Father and mother.
- Brothers and sisters (other than half brothers and sisters) and lineal descendants of such of them as shall have predeceased the intestate.
- Paternal grandparents.
- Children of paternal grandparents and the lineal descendants of such of them as have predeceased the intestate.
- Paternal grandparents’ parents.
- Paternal grandparents’ parents’ children and the lineal descendants of such of them as have predeceased the intestate.
- Maternal grandparents and their lineal descendant and their children.
- Half brothers and sisters and the lineal descendants of such of them as have predeceased the intestate.
- Widows of brothers or half brothers and widowers of sisters or half sisters.
- Paternal or maternal grandparents’ children’s widows or widowers.
- Widows or widowers of deceased lineal descendants of the intestate who have not married again before death of the intestate
Division of Property Where There Is No Relative Entitled to Succeed Under the Other Provisions of this Chapter.:
ection 56 states laws for the division of property where there is no relative entitled to succeed under the other provisions of Chapter 3 of Part V, in which the Parsi has died intestate.
According to Section 56 of the Act, where there is no relative entitled to succeed under the other provisions of this Chapter to the property of which a Parsi has died intestate, the said property shall be divided equally among those of the intestate’s relatives who are in the nearest degree of kindred to him.
Conclusion:
Article 25(1) of the Indian Constitution provides that all individuals are equally entitled to freedom of conciseness and the right to freely profess, exercise and spread religion is subject to the morality and health of public order and is also subject to Article 26(b) which provides that any denomination of religious dot has the right to administer its own affairs in matters of religion. Accordingly, there are special provisions in the Indian Succession Act, 1925 regarding the succession of intestate Parsis. There is still lot to improve and include in the Succession Laws from the viewpoint of Parsi laws in order to include illegitimate children to inherit the property. Also, specific adoption child laws are also to be formed keeping in vie point the fading population of the Parsi community.