Report No. 110

III. Existing definition

3.9. Section 2(a)-"administrator".-

We now proceed to consider the existing definitions given in section 2.

Under section 2(a), "administrator" means a person appointed by competent authority to administer the estate of a deceased person when there is no executor. The clause needs no change.

A definition of "child" may be added, for reasons already stated.1

3.10. Section 2(b)-"codicil".-

Section 2(b) provides that "codicil" means an instrument made in relation to a will, and explaining, altering or adding to its dispositions, and shall be deemed to form part of the will.

The definition needs no change.

1. See para. 3.8, supra.

3.11. Section 2(bb)-"District Judge".-

Under section 2(bb), inserted in 1929, "District Judge" means the Judge of a principal civil court of original jurisdiction. The main object of the definition was to cover the High Court in its ordinary original civil jurisdiction.

It has been held1 that "District Judge" (in the Succession Act) includes an Additional District Judge.

The definition needs no change.

1. (a) Sagar Chaudhury v. Nabin Ch. Chaudhury, AIR 1970 Assam 111 (113). (b) Ganpat v. Mahadeo, AIR 1949 Nag 408, para. 7.

3.12. Section 2(c)-"executor".-

Section 2(c) defines "executor" as meaning a person to whom the execution of the last will of a deceased person is, by the testator's appointment, confided.

It needs no change.

3.13. Section 2(cc) (New Definition of "Hindu" to be inserted).-

A definition of the expression "Hindu" should be inserted, on the lines already recommended.1

1. See paras. 3.3 and 3.4, supra.

3.14. Section 2(d)-"Indian Christian".-

Under section 2(d), the expression "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 definition follows that given in an earlier Act1 except that the phrase 'Indian Christian' has been used in place of the earlier, phrase 'Native Christian'.

The expression has been held to include converts to Christianity2.

The Indian Marriage Act3 appears to have been the first Central Act to use the expression "native Christian". The terminology was, with one change, continued in the Indian Christian Marriage Act, 1872. The Indian Divorce Act, 1869 does not use the expression, since it does not make a distinction between native or Indian Christians and other Christians.

The definition in the present Act requires three ingredients-(i) native of India, (ii) unmixed Asiatic decent, and (iii) profession of the Christian religion.

Although, at the first sight, the requirement that the person concerned must be a native of India may recall to one's mind the days of foreign domination, the real intention is to emphasise that there must be some link with India and that mere religion is not enough.

As regards the requirement of unmixed Asiatic descent, the intention was apparently to demarcate such persons from those who were of Western descent for example Anglo-Indians. Thus, a link with India and descent from Asiatic stock, have some significance.

1. Native Christians Administration of Estates Act (7 of 1901).

2. (a) Dwarka Nath v. Raj Rani, AIR 1932 Oudh 85. (b) Kamawati v. Digbijai Singh, AIR 1922 PC 14.

3. The Indian Marriage Act, 1865 (5 of 1865).

3.14A. In a comment received by us through the Catholic Bishops Conference,1 a reservation is expressed about the qualification "unmixed Asiatic descent" which is required for an Indian Christian. The following criticism has been offered in the comment:-

"Anglo-Indians would not qualify to Indian Christians according to this definition. There would not be any difficulty if by their not coming under this section it would be advantageous to them, but it is not advantageous to them. Further the question of non-Anglo-Indian Christian marrying an Anglo-Indian girl would give rise to problems. Since the father is not an Anglo-Indian, the children would not be Anglo-Indians.

But since they are not of unmixed Asiatic descent they would not come under the Indian Succession Act. There is no law apparently under which the children would come. If the special provision for Anglo-Indians is to be retained could not the children follow the status of the father?"

We find ourselves unable to accept the suggestion. We would like to point out that Anglo-Indians are not governed by provisions applicable to Indian Christians but by provisions applicable to other communities, that is to say, the residuary class from which are excluded the specified communities such as Hindus, Muslims, Buddhists, Sikhs, Jains, Parsis and Indian Christians.

As regards the question of a non-Anglo-Indian Christian marrying an Anglo-Indian girl, it is to be pointed out that the problem of determining for legal purposes the religion of the child of such mixed parentage is a matter outside the purview of the Succession Act. In the circumstances, we do not think that any amendment is called for in the Succession Act, on the point in issue.

1. Bishops Conference of India, letter dated 3rd October, 1984.

3.14B. The only improvement which can be possibly considered is as regards the word "native". But this will only be a verbal improvement. Some kind of link or association with India is of the essence of the concept of Indian Christians, and unless a better word can be found, it is not possible to change the definition in clause (d).

3.15. Section 2(e)-"Minor".-

Section 2(e) defines "Minor" as meaning any person subject to the Indian Majority Act, 1875 (9 of 1875), who has not attained his majority within the meaning of that Act, and any other person who has not completed the age of eighteen years and "minority" is defined as meaning the status of any such person.

The definition needs no change.

3.16. Definition of "parsi" to be added.-

As already recommended1, a definition of the expression "parsi" should be inserted.

1. Para. 3.4, supra.

3.17. Section 2(f)-"Probate".-

In section 2(f), "probate" is defined as meaning the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator. The form of probate is given in the Sixth Schedule to the Act. On a comparison of the definition with the form one finds that "probate" is defined inaccurately. "Probate" does not, in strictness, mean the copy of a will, but the certificate of the Court, to which a copy of the will is attached.

The distinctive characteristic of probate is that it establishes the validity of a particular will for all purposes and so as to bind all persons. The grant of a probate, makes it unnecessary for an executor to have to "prove" the will on every occasion on which he seeks to rely upon it1. In other words, probate and letters of administration with a will annexed, while un-revoked, are conclusive evidence of the due executions and validity of the will2.

1. Gareth Muller Machinery of Succession, 1977, p. 75.

2. Whicker v. Hume, (1858) 7 House of Lords Cases 124 (143, 156, 165).

3.18. Defect in present definition of "probate".-

We are not, at the moment, concerned with the view that the grant of probate is a "decree" of the court-a view expressed by Markby, J. in a Calcutta case1, or with the opposite view that a probate is not a judgment, order or decree-a view taken in a later Calcutta case2 and also in a Patna case3. What is material for our purpose is the most important element of a probate-a certificate of proof issued by the proper officer of the court.

This element is missing in the present definition, as contained in section 2(f), though it is indicated very clearly in the Form of Probate4 prescribed by the Act in the Sixth Schedule. In this sense, there arises a discrepancy between the definition and the Form, in so far as the essential feature of 'proof and 'certificate' is left out in the definition.

1. Komollochun v. Niruttan, 1879 ILR 4 Cal 360.

2. Rajib Panda v. Lakhan Sendh, 1900 ILR 27 Cal 11.

3. Raj Kishor v. Promode Bihari, 1943 ILR 22 Pat 756, (Section 296 relied on).

4. Sixth Schedule, read with section 289.

3.19. Recommendation to amend the definition of "Probate".-

It appears to us that this discrepancy between the definition in section 2(f) and the Form of Probate as given in the Sixth Schedule should be removed. With that object in view, we recommend that the definition of "probate" in section 2(f) should be revised as a "document issued in respect of a will under the signature of the proper officer of the court, certifying that the original will was proved on a certain date and attaching a certified copy of the will, with a grant of administration to the estate of the testator."

3.20. Section 2-other points if any.- No other points need to be made concerning section 2.