Report No. 110
16.56. Position in common law of illegitimate children.-
Some discussion is necessary as to the position of illegitimate children in the context of section 100. At common law1 there is no bar to an illegitimate child as such taking a gift under a will or a deed. But there is a principle of interpretation which, in effect, creates a disability. The principle is that any gift to children as a class, prima facie means "legitimate" children.
This presumption can be rebutted by proof that the author intended to benefit illegitimate children. Such an intention can be proved if, for example, the testator names the illegitimate children or expressly includes them as a class. The presumption can also be rebutted by showing that at the time of execution of the deed or will it as possible only for illegitimate children to take under it.2
There is another disability in the legitimate children in view of the rather curious rule that a gift to illegitimate children to be born in the future is void as against public policy as it has a tendency to encourage immorality.3
1. Hill v. Crook, (1873) Law Report 6 House of Lords 265.
2. Eve (in re:), (1909) 1 Chancery 796.
3. Hills v. Crook, (1873) Law Report 6 House of Lords 265.
16.57. Reforms in certain jurisdiction.-
The law on the subject has been reformed in many jurisdictions. The provision in South Australia1, for example, reads as under:-
"(1). So far as regards succession to any estate under any will or under the total or partial intestacy of a woman, her illegitimate child shall have the same right and title as if he were legitimate."
1. Section 55(1), Administration and Probate Act, 1919 (South Australia), quoted in Sacville and Lanteri Disabilities of Illegitimate Children in Australia, (1940) 44 Australian Law Journal 55, 58.
16.58. Section 100-various alternatives recommended.-
Section 100, in so far as it deals with the rights of illegitimate children, raises certain important questions of social policy, namely, whether the law should discriminate against illegitimate children even by a presumptive rule of the nature enacted in the section. Our own preference would be for reversing the rule contained in the section, for reasons to be staled in due course.1 However, in case such a radical reform is found to be not acceptable, there is still scope for certain modifications of substance. If even these modifications are not found to be acceptable, some verbal changes should, in any case, be made in the section.
1. See para. 16.65 et seq, infra.
16.59. Section 100, first part.-
We may now take up section 100 proper, assuming for the time being, that it is to be retained. The just part of the section raises no serious problem of interpretation. It does, of course, raise a question of policy, which we shall discuss later.1
1. See infra 27 (para. 16.65, et seq, infra.
16.60. Section 100, second part.-
The second part of the section provides that where there is no such legitimate relative, the words enumerated above are to be understood as denoting a person who has, at the date of the will, acquired the reputation of "being such relative." How the words "being such relative" are ambiguous, in as much as either they may mean persons having the reputation of being legitimate relatives, or they may also mean persons who have the reputation of relatives simplicitor. The first construction is supported by the marginal note to section 100, which speaks construction is sup soaks of "relatives reputed speaks of "relatives reputed legitimate."
The several construction is supported by the general sense of the section and it may be noted that illustrations (ii) to (iv), to the section; which are relevant to the latter half of the section, do not require that the reputation must of being a legitimate relative. The rule of English law also is that where there are legitimate relatives, the persons who have acquired the reputation, not necessarily of legitimacy, of being the child, son, or daughter, etc. as the case may be, of the particular person, will take under the description of son child or daughter.
16.61. Recommendation to amend section 100.-
In the light of what is stated above as to the ambiguity arising from section 100, we recommend that section 100 should be suitably redrafted so as to refer to a reputation of relationship, but not necessarily a reputation of legitimacy. The object could be achieved by substituting, in place of the words "being such relative", the words "being a child, son or daughter or otherwise standing in the relationship in question".
(This recommendation is to be carried out only if our alternative recommendation to delete the section1 is not accepted).
Revised section 100 would then read thus-
"100. In the absence of any intimation to the contrary in a will, the word "child", the word "son", the word "daughter", or any word which expresses relationship is to be understood as denoting only a legitimate relative, or, where there is no such legitimate relative, a person who has acquired, at the date of the will, the reputation of being a child, son or daughter or otherwise standing in the relationship in question."
1. Kurla v. Wilson, 17 Vessoy 523.
16.62. Section 100, illustrations (vii) and (viii).-
We may now deal with illustrations (vii) and (viii) to section 100, which reads as follows:
"(vii) A makes a bequest in favour of his child to be borne of a woman who never becomes his wife. The bequest is void.
(viii) A makes a bequest in favour of the child of which a certain woman, not married to him is pregnant. The bequest is valid".
16.63. Incompleteness of section 100 illustrations (vii) and (viii).-
Illustrations (vii) and (viii) to the section exhibit some incompleteness, inasmuch as their rationale is not manifest from the language used. It appears that some facts basic to the proposition of law are assumed in the illustration, but they are not stated in so many words. Thus, the seventh illustration assumes (without, however, stating so) that a bequest to an illegitimate child, not yet begotten, is against public policy. This was the rule in English law, according to earlier cases.1 We shall discuss the present position on the point later.2
Then, the eighth illustration assumes that there is an evidence of a contrary intention, and also that the child is in the womb. For this reason, the bequest is regarded as valid. However, the illustration does not clearly state these important facts.
1. Cf. (a) Paruck Succession Act, 1977, p. 243.
(b) Halsbury's, 34th Edn., Vol. 39, p. 1074, para. 1602, second sub-para.
2. See paras. 16.65 and 16.66, infra.
16.64. Change needed in the Illustration.-
This aspect should be brought out more clearly,' by suitably amending the illustrations so as to incorporate the reason on which the view taken in illustrations is based. In illustration (vii), the words 'since it would he against public policy" should be added at the end-if the illustration is to be retained at all.1 In illustration (viii), the words 'since there is evidence of contrary intention' could he added at the end.
We may recommend that illustrations (vii) and (viii) to section 100 should be suitably amended as above.
1. See para. 16.65, infra.
16.65. Section 100, Illustration (vii)-criticism.-
The more important question, however, is whether illustration (vii) to section 1001 should be retained at all. It has to be noted in this context that the English law, as it developed in the course of the latter half of the 19th century, has taken a different approach in the matter of bequests to illegitimate children of the testator, begotten or both after the date of the will. In the early English cases2, two reasons were usually given for excluding such children
(i) uncertainty of determining paternity; and
(ii) the bequest being against public policy.
1. Para. 16.62, supra.
2. Cf. Hill v. Crook, 1873 LR 6 HL 265.
16.65A. Uncertainty.-
A gift to future illegitimate children, expressed by reference to the paternity of a particular person, was regarded, in England, as failing for want of certainty, on the ground that in order to ascertain the persons entitled under such a bequest, inquiries might be necessary which the law forbids. This consideration, however, has no applicability in India where the law of evidence does not recognise any prohibition against an inquiry into paternity.
16.66. Public Policy in England.-
As regards the aspect of public policy, the later English view has been that while illegitimate children to be begotten after the death of the testator cannot be provided for by will (nor can future illegitimate children he provided for by deed), yet, so long as the clause is limited to children in case when the document takes effect, it is more, in accordance with the pubic policy that a suitable provision should be made for them, than that such a clause should be regarded as beyond the scope of the law and that the unfortunate offspring should become a burden on public funds.1
Even in one of the earlier English cases,2 the position was thus stated:
"As to the rest of the gift to the children 'to be begotten'. Every gift to an illegitimate child, the begetting of which is a thing contemplated, must fail. It is against the policy of the law to permit a provision or gift to an illegitimate children; but it is not against the policy of the law to permit a provision or gift to an illegitimate child begotten, but unborn. I apprehend there-is no doubt that a gift to the child of which a woman is enceinte at the time of the gift, is a valid gift, although that child be an illegitimate child. It is a valid gift, because there can be no doubt about the object intended to be benefited."
1. Loveland (in re), (1906) 1 Ch 542 (548).
2. Holt v. Sindrey, (1869) 28 W CH 126 (131,132).
16.67. Occleston's case.-
In Occleston's case,1 James, L. J. Said:
"I will follow the example of Lord Cairns in that case, and suppose a will to be written out at a full length, expressing the testator's intention and meaning, and motives or grounds. Assume the will to be thus written: "Whereas I am living in a connection unhallowed and illicit with A, B, and there have been, and in the course of nature it is probable there may be offspring born of her body,2 the fruit of our inter-course, and I do not think it right such offspring should be a burden upon the community, and I desire that, notwithstanding the misfortune of their birth, they should not be left without sufficient means for their maintenance, education, and future welfare. Now, therefore, I do make the following provision for all children born of her body while she is cohabiting with me."
Now what is there against morality, or religion, or public policy in such a provision?
1. Occleston v. Fullalove, (1874) 9 Ch 147 (160).
2. Emphasis added.
16.68. Need for reconsideration of illustration (vii).-
In the circumstances, illustration (vii) to section 100 seems to be anachronistic. On a careful consideration, we see no reason for retaining it in the Indian Statute book. It is inappropriate in India, whichever, way one views the matter. So far as proof of paternity is concerned, the law in India has never fought shy of any kind of evidence on the subject.
As to the aspect of public policy there is considerable force in the approach in later English cases1, where the matter has been discussed at length and in passages which give convincing reasons for the views expressed.
1. See Occleston, para. 16.67, supra.
16.69. Proper approach.-
In our opinion, both from the juristic point of view and on wider considerations of social justice, a bequest to an illegitimate child, whether already begotten or otherwise, should not be regarded as against public policy. There is no provision in the Transfer of Property Act corresponding to section 100, Illustration (vii), and we see no reason for retaining any such' provision in the law of testamentary succession.
16.70. Wider question of policy as to legitimacy.-
This discussion is, however, concerned only with the illustration to section 100. The major question of policy which arises out of the section is, how far the law should, at this day. Bar illegitimate relatives from claiming under a will by raising an adverse assumption. This question is concerned with section 100 as a whole. Of course, the section does not totally exclusive them from so claiming, but entitles them to do so if, and only if, they have acquired the reputation of being 'such relative'. It is a matter for consideration whether, at the present day, the law ought not to be more liberal.
16.71. Reform in England.-
In this connection, reference may be made to the statutory reform effected in England as to the position of legitimate children.
The relevant English provisions read as follows1:-
"15. (1) In any disposition made after the coming into force of this section-
(a) any reference (whether express or implied) to the child or children of any person shall, unless the contrary intention appears, be construed as, or as including, a reference to any illegitimate child of that person; and
(h) any reference (whether express or implied) to a person or persons related in some other manner to any person shall, unless the contrary intention appears, be construed as, or as including, a reference to anyone who would be so related if he or some other person through whom the relationship is deduced, had been born legitimate.
(2) The foregoing sub-section applies only where the reference in question is to a person who is to benefit or to be capable of benefiting under the disposition or for the purpose of designating such a person, to someone else to or through whom that person is related; but that sub-section does not affect the construction of the word 'heir' or 'heirs' or of any expression which is used to create an entitled interest in real or personal property."
1. Section 15(1) and 15(2), Family Law Reform Act, (1969).
16.72. Recommendation as to section 100 and to insert section 100A.-
It seems to us that the time has come when a similar provision should be introduced in India in substitution of the rule in section 100. Testators will, of course, be free to express a contrary intention. But, in the absence of expression of such a contrary intention, the law should now take a bold step and regard illegitimate children as prima facie included within the scope of relationship.
This would be in consonance with social justice. If a person begets an illegitimate child, it would not in general be unrealistic to presume that he would in making a testamentary disposition like to benefit his illegitimate children as well. There will be no interference with his freedom of disposition, as there will still remain scope for the expression of a contrary intention by him.
But, subject to this safeguard, it would, in our view, be proper, as a matter of social justice, to reverse the present rule which was framed at a time when the notions of society on the subject under consideration were much more rigid than they are now.
16.73. Recommendation as to section 100.-
If the reasoning put forth above is accepted, present section 100 should be deleted and in its place the following inserted:
"100. (1) In any disposition made after the coming into force of the Indian Succession (Amendment) Act-
(a) any reference (whether express or implied) to the child or children of any person shall, unless the contrary intention appears, be construed as, or as including, a reference to any illegitimate child of that person; and
(b) any reference (whether express or implied) to a person or persons related in some other manner to any person shall, unless the contrary intention appears, be construed as, or as including, a reference to any one who would be so related if he or some other person thresh whom the relationship is deduced, had been born legitimate.
(2) Sub-section (1) applies only where the reference in question is to a person who is to benefit or to be capable of benefiting under the disposition or, for the purpose of designating such a person as is entitled to succeed to someone else to or through whom that person is related; but that subsection does not affect the construction of the word 'heir' or 'heirs' or of any expression which is used to create a limited interest in property."
[Cf. 15 Family Law Reform Act, 1969 (c. 46)]
16.74. Alternative draft.-
As a drafting alternative, section 100 should be revised as under:-
"100. In the absence of any intimation to the contrary in a will, the word 'child' the word 'son', the word 'daughter', or any word which expresses relationship is to be understood, not as denoting only a legitimate relative but also as including an illegitimate relative."
16.75. Alternatives recommended as to section 100.-
We have, in the preceding discussion, made three alternative recommendations1 as to section 100. This is because the subject-matter of section 100 is somewhat controversial from the social point of view. While we ourselves would like to go to the utmost and replace section 100 by a provision reversing the present rule, we appreciate that there would be many who think that Indian Society is not yet prepared for such a change in the law, laudable though the principle of such a reform might be.
If some such approach finds favour with those concerned-that is to say, if the most radical alternative of replacing section 100 by the opposite rule cannot be accepted-then certain other improvements that are required in the present section should not be lost sight of. It is for these reasons that we have suggested more than one alternative for consideration.
1. See paras. 16.63 to 16.74, supra.
16.76. Merits of each alternative.-
Let us now explain, in brief, the purport of each alternative recommended by us and how it differs from the others. Of the three alternatives, the first one is the mildest1 and involves only a verbal improvement. According to this alternative, section 100, main paragraph, and the seventh and eighth illustrations to that section, would be amended, primarily to leave scope for a contrary intention expressed by the testator and to bring out more clearly the rationale underlying the two illustrations.
The second alternative is somewhat stronger than the first, but is still a moderate one. The substance of section 100 would be left in tact in its main paragraph, the principal change of substance being (by deletion of the seventh illustration, abrogation of the rule that a bequest to an unborn person to be born in the future out of lawful wedlock is void.2
The third alternative is the most radical one. It would mean not only a charge in the rule contained in the seventh illustration which, after all, is of a limited application), but also a radical change in the rule in the main paragraph of the section which embraces the wider field of rights of illegitimate children under testamentary dispositions in effect, it would mean the total removal of the disabilities-presumptive though they may be-of illegitimate children provided in the present section 100.
1. See paras. 16.63, 16.64, supra.
2. See paras. 16.65 to 16.67, supra.
16.77. Constitutional questions concerning legitimacy.-
It will be noted that our recommendations relating to the position of illegitimate children under section 100 are based on sociological considerations relevant to the subject. We have not discussed the question whether the present provision in section 100 is on the ground of undue discrimination, hit by Article 14 of the Constitution. The matter has arisen in the United States-though in a slightly different context,1 and in general, courts have regarded such provisions as void as violating the constitutional requirements of equal protection of law.
However, for the purposes of the present discussion, we do not propose to consider that aspect, since even of section 100 is constitutionally valid, there are, as stated above, other considerations which on the merits justify a change in the present position.
(a) Levy v. Louisiana, (1968) 391 US 68.
(b) Gowez v. Perez, (1973) 109 US 535.
16.78. Earlier Report on Workmen's Compensation Act.-
We may note that the matter received consideration at some length in the Report of the Law Commission on the Workmen's Compensation Act in the context of the scope of the expression 'dependant'. Some of the foreign precedents and constitutional provisions are also cited in that Report.1
1. Law Commission of India. 62nd Report (Workmen's Compensation, 1923) (October, 1974), paras. 24 and 28.
16.78A. Complications whether likely to be created.-
In a comment on our Working Paper (forwarded through the letter1 of the Catholic Bishops Conference of India), it has been stated that the proposal regarding section 100, concerning illegitimate children as beneficiaries under a will may create complications. The comment says: "Anybody can make such a claim on the pretext of being an illegitimate child. On the other hand, should we put legitimate children on a par with illegitimate (children)?"
We have not found ourselves in agreement with the approach shown in this comment. We do not think that claims to willed property on the score of the claimant being an illegitimate child will be put by "anybody". There would be a natural reluctance to put forth such claims, is not honestly believed in. We would also point out that section 100 is confined to only one facet of the topic of illegitimate children's position- namely, the construction of wills. The section, as recommended by us, introduces only a rebuttable presumption.
1. Letter of the Catholic Bishops Conference of India, dated 3rd October, 1984.
16.79. Section 101.-
This disposes of section 100. Section 101 deals with the rule of construction that is to be applied where a will purports to make two bequests to the same person. Under clause (a) of the section, where the same specific thing is given to the legatee twice in the same will, or in the will and again in a codicil, the legatee is entitled to take only once.
Under clause (b), where one and the same will or codicil purports to make to the same person two bequests of the same quantity or amount of anything, he shall be entitled to one such legacy only. These two clauses are obviously based on the presumption prima facie a reasonable one-that in the circumstances dealt with in the two clauses, the second bequest is merely a repetitive one and not a new one.
Under clause (c), where legacies of unequal amount are given to the same person in the same will or in the same codicil, he is entitled to both the legacies.
In the remaining cases, under clause (d) the legatee is entitled to both the legacies.1 The rule is that legacies given by different instruments are prima facie cumulative.
1. Cf. Davis (in re:), (1957) 3 All ER 52, 54 (Vaisey, J.).
16.80. No change in section 101.-
The rules as given in section 101 could have been expressed in a better way. However, it appears unnecessary to disturb the language of the section at this stage.
