Report No. 110
II. New Definitions to be Inserted
3.4. Expressions denoting application of the Act and need to define them.-
The persons to whom the Succession Act does not apply, are to be ascertained from several provisions of the Act.1 Expressions which have been used in various sections in this context have come up for judicial construction. While it is not practicable to codify all the propositions laid down in the judicial decisions, it seems to be advisable to consider codification of at least some of the important propositions, so that the Act may be self-contained in respect of the salient matters concerning its applicability. Some of these points are stated below, by way of illustration.
(1) Hindus-Most sections of the Act now apply to Hindus.
(2) Indian Christians-One of the sections of the Act2 does not apply to 'Indian Christains'-an expression separately defined3. The expression seems to have come up for consideration before the Rangoon High Court,4 which held that the court cannot inquire into the internal convictions of a person. We have received a comment on the Working Paper through a letter of the Catholic Bishops' Conference,5 in which it is stated that the terms "Indian Christians" and "native Christians" should be avoided, and simply the expression "Christians" should be used in the Act. It is stated that Christians should be considered as an integral ommunity in India.
We have given the suggestion very careful consideration, but we find it impracticable to accept. The adjective "Indian" had to be used, since certain rules applicable to Christians coming from outside India are intended not to apply to Indian Christians as defined in the Act. So long as this scheme is to be maintained-and this is a matter of substance not of mere phraseology-some verbal device will necessarily have to be employed to indicate the line of demarcation. If the formula "Indian Christian" is decided to be avoided, something similar will have to be substituted in its place. The use of the expression in question does not, so far as we can see, affect the integral character of the community, from the social angle.
(3) Recommendation to insert a definition of 'Parsi'-Parsis-Some of the sections of the Act apply to Parsis. The expression 'Parsi' is not defined in the Act. The Parsi Marriage Act6 defines it as meaning a 'Parsis Zeroastrain'. The definition given in that Act is suitable for adoption for the purposes of the Succession Act also. We, therefore, recommend that it should be so adopted, by inserting7 a new definition in the Act for the purpose.
(4) Portuguese-It seems to have been held by the Bombay High Court8 that the Portuguese are not governed by the Act.
1. Sections 3, 29(1) 58(2) and 217 (The list is merely illustrative).
2. Section 33A.
3. Section 2(d).
4. Ma Khin Than v. Ma Ahmt, AIR 1934 Rang 12.
5. Catholic Bishops Conference of India, letter dated 3rd October, 1984.
6. Parsi Marriage & Divorce Act (3 of 1936).
7. To be carried out in section 2, by inserting a definition of the expression 'Parsi'.
8. Antas v. Ardesir, (1901) 2 Born LR 431.
3.5. Recommendation to insert a definition of 'Hindu'.-
The expression 'Hindu' has not been defined at any place in the Indian Succession Act. Nice questions have arisen with reference to the meaning of this expression for the purposes of the Act. For example, the view has been expressed that the word 'Hindu' is a theological term, and denotes a person professing any form of Brahmanical religion or religion of the Puranas. This view would exclude non-Aryan natives like Santhals, Kols, Nagas and Bhils.1-2 That the term 'Hindu' is used as a theological term, was also the view expressed in a Bombay case.3
1. Stokes Succession Act, p. 201, cited by N.D. Basu Succession Act, (1957), p. 31.
2. Also Stokes Anglo-Indian Codes, p. 483.
3. Dagree v. Pacotti Sen Jao, 1895 AIR 19 Born 783 (789) (per Sterling J.).
3.6. Statutory definition of 'Hindu'.-
In this context, it is proper to refer to several statutory definitions of 'Hindu' that have now come into existence.
The following is an extract of section 2 of the Hindu Succession Act, 1956:
"Section 2(1) Application of Act.-This Act applies-
(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.
(b) tc any person who is a Buddhist, Jain or Sikh by religion.
(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters, dealt with herein if this Act had not been passed.
Explanation: The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:-
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;
(c) any person who is a convert or reconvert to the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the official Gazette, otherwise directs.
(3) The expression 'Hindu' in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is nevertheless a person to whom this Act applies by virtue of the provisions contained in this section".
In the same terms is section 2(1) of the Hindu Marriage Act, 1955.
3.7. Recommendation to insert definition of 'llindu'.-
In our opinion, it is desirable to adopt the above definition for the purposes of the Indian Succession Act also, so as to secure uniformity. A person to whom the Hindu Succession Act applies would then be regarded as a "Hindu" for the purposes of the Indian Succession Act also. Accordingly, we recommend that a definition of 'Hindu' should be inserted1 to the effect, that the expression 'Hindu' has (in this Act) the same meaning2 as in the Hindu Succession Act, 1956.
1. To be carried out by amending section 2, by inserting a definition of "Hindu".
2. In consequence, expressions referring to Buddhists, Sikhs and Jainas alongwith Hindus, wherever they occur, may be omitted.
3.8. Section 2(aa)-New definition of "Child" recommended.-
The Act does not, at present, define the expression 'Child'. For reasons which we shall state later,1 it is necessary to add a definition of this expression as follows:-
"(aa) 'child' includes-
(a) an adopted child, in the case of any one whose personal law permits adoption,
(b) "an illegitimate child".
1. See para. 8.18, infra (section 37).