Report No. 110
II. Justification for Review
1.8. Review of law of succession.-
It would be appropriate to mention at this stage certain aspects justifying a review of the law. The law of succession is, in part, concerned with the apparently simple process of giving effect to a person's wishes in relation to the disposition of his property in the event of his death, and in part, with the equally simple question-what should happen to the property where a deceased person has not expressed his wishes (or not expressed them effectively) in relation to such disposition.
However, the mass of rules, principles, statutory provisions and judicial decisions which has accumulated shows that the process is far from 'simple'. No less a figure than Coke complained1, "Wills and the construction of them do more to perplex a man than any other learning."
1. Roberts v. Roberts, (1613) 2 Bulstr 123, cited by Curzon Law of Succession, (1976), Preface.
1.9. Importance of periodical revision.-
As a branch of private law, then, the law of succession is of vital concern to the community. Periodical revision of legislation dealing with this branch of the law accordingly needs no elaborate explanation. Moreover, there have taken place certain important developments which render a review of the Act necessary. In the first place, a large number of sections of the Act have yielded a rich crop of case law leading to a conflict of decisions or a number of other difficulties in many cases.
Secondly, the content of some of the legal concepts which underlie the operative provisions of the Act-for example, domicile-has undergone change during the last thirty years or so, in legal thinking. It is desirable that the provisions of the Act should be reconsidered in the light of these developments.
Thirdly, social thinking in regard to some of the notions which form the basis of the Act has as undergone changes which should find a reflection in the scheme of the Act. The position of illegitimate children is one example. The late Shri Paruck, in his commentary on the Act1, also pointed out the need for revision of the Act2.
All these factors justify a consideration of the Act section by section. The changes needed in the Act may not necessarily be radical, but a review is eminently desirable.
1. P.L. Paruck Commentary on the Succession Act, 3rd Edn., quoted by Shri J.L. Joshi in the 5th Edn., (1966), preface.
3. See also suggestion of Shri A.C. Mukherjee the preface to his edition of Mitra Succession Act.
1.10. Concrete reasons for revision-Illustrations from particular provisions.-
It may be useful to mention, by way of illustration, some of the concrete reasons justifying a review of the Act. This would involve some elaboration of points already mentioned above or anticipation of suggestions to be made later. Nevertheless, it would be useful. The concrete reasons are as under:-
(i) Changing social actions.-As a result of changing conditions, notions on various matters relevant to the law of succession have also undergone change (as stated above). In illustration of this, the status of illegitimate children1, and the doctrine of domicile2 (married women) may be referred to.
(ii) Conflicting decisions.-Several sections of the Act have been the subject-matter of conflicting decisions. There is some obscurity even as to the very applicability3 of the Act (Part IV) to certain areas previously forming part of the erstwhile State of Travancore-Cochin. Are Indian Christians in those areas still governed by the Travancore Christian Succession Regulation 2 of 1092? Or, are they now governed by the Indian Succession Act, 1925? The law requires clarification.
(iii) Changes of substance-position of lunatics.-On certain important matters, changes of substance may be needed in the provisions of the Act. For example, the law relating to the disposition by will of the property of lunatics justifies a second look. In England, a judge has now power4 to make certain orders to give certain directions for the disposal of property of mentally incompetent persons. Further5, there is power to execute a "statutory will" in regard to persons who are mentally incompetent.
Section 17 of the Administration of Justice Act, 1969 containing the relevant law, is quoted below:-
"17. (1) In the Mental Health Act, 1959, (in this Part of this Act referred to as ("the principal Act") in section 103(1) (powers of the judge as to patient's property and affairs) the following paragraph shall be inserted after paragraph (d):-
(dd) the execution6, for the patient, of a will making any provision (where by way of disposing of property or exercising a power or otherwise) which could be made by a will executed by the patient if he were not mentally disordered, so however that in such cases as a nominated judge may direct the powers conferred by this paragraph shall not be exercisable except by the Lord Chancellor or a nominated judge.
(2) At the end of section 103(3) of the principal Act there shall be inserted the words "and power of the judge to make or give an order, direction or authority for the execution of a will for a pa tient:-
(a) shall not be exercisable at any time when the patient is an infant, and
(b) shall not be exercised unless the judge has reason to believe that the patient is incapable of making a valid will for himself."
(iv) Another important topic requiring consideration is the effect of marriage on a will. As the law stands at present7, a will is automatically revoked by the marriage of the maker of the will (where he is governed by the relevant section) except in the case of a will made in the exercise of the power of appointment in certain specific circumstances. However, some hardship is caused by this provision, in as much as even a will which is made in contemplation of marriage falls within it. In England,8 it is expressly enacted that a will expressed to be made in contemplation of marriage shall not be revoked by the solemnisation of the marriage contemplated, thus overriding section 18 of the Wills Act, 1837, which provided to the contrary.
(v) Proof of title on Succession.-Sections 211 to 214, which deal with the proof of title by a probate or letters of administration or succession certificates, have, in practice, created certain problems in the case of property passing by survivorship. In particular, the question has arisen whether letters of administration can be granted in respect of shares in joint stock companies standing in the name of the Karta of a Mitakshara Joint Hindu Family.
On the death of the Karta who was the registered holder of the shares, the title to the shares vis-a-vis the company does not pass by survivorship to the surviving members without letters of administration. This position has been judicially reached on a construction of the scheme of the Companies Act under which the legal title in the shares is regarded as vested in the (registered) holder of the shares9. The practical importance of this question is enough to justify a re-consideration of the law on the subject.
(vi) Drafting flaws.-Drafting flaws have also been discovered in a few sections of the Act. For example, an anomaly seems to exist10 on a very important point, namely- can Hindus, Buddhists, Sikhs, JaMs, etc. make a privileged will? This difficulty has arisen because of the fact that section 65 (privileged wills) does not apply to persons belonging to these communities11, as the section is not listed in the Third Schedule as one of those sections which apply to Hindus, etc.
The defective draftsmanship of sections 63 to 66 has led to the position that, at present, the capacity of soldiers belonging to the Hindu etc. religion to make wills has become extremely doubtful. Section 63, dealing with unprivileged wills, excludes soldiers from its fold. Section 65, dealing with privileged wills, is inapplicable to Hindus, etc. by reason of the Third Schedule.
The result is that Hindu soldiers are, in relation to the making of privileged wills, governed not by sections 65 and 66-these being expressly excluded under the Third Schedule-but by the unenacted law of wills as applicable to Hindus. This position cannot be regarded as satisfactory. It is therefore necessary to extend section 65 to Hindus, etc. by amending the Third Schedule12.
(vii) Meaning of certain expressions.-Certain important and far-reaching questions have also arisen in connection with expressions like 'Dharma' used in Wills. Under section 89 of the Succession Act, bequests for "Dharma, Dharmada", etc. are liable to be regarded as void by reason of certain judicial decisions; these decisions hold the field unless the position is rectified by legislative amendment13.
This position, however, is not satisfactory and is substantially contrary to Indian social notions. By way of illustration of local legislation that has sought to rectify this deficiency, reference may be made to the Explanation to section 10 of the Bombay Public Trusts Act, 1950, The section (along with the Explanation) reads as under14:-
"10. Notwithstanding any law, custom or usage, a public trust shall not be void, only on the ground that the persons or objects for the benefit of whom or which it is created are unascertained or unascertainable.
Explanation-A public trust created for such objects as dharma, dharmada or punyakarya, or punyadan shall not be deemed to be void, only on the ground that the objects for which it is created are unascertainable."
Need for change.-It appears to be desirable to incorporate such a -provision in the Indian Succession Act in regard to bequests. Section 89 of the Act provides that a will or bequest "not expressive of any definite intention" is void for uncertainty. Re-enacting, as it does, section 76 of the Succession Act of 1865, this is a provision sound in principle.
But its application to certain situations has created difficulties, and the view in judicial decisions15-16 that a bequest for 'dharma' is void, does not, unfortunately, reflect the sense of the community. It is urgently necessary that the law should be amended so as to reflect the thinking in Indian society on the subject.
(viii) Effect of murders.-Certain gaps in the law need to be filled up. There is need for a specific provision prohibiting a murderer from succeeding to the estate of person murdered17.
(ix) In the case of two or more persons who die in a calamity such as fire, flood, earthquake and the like, there is need for a specific provision laying down a presumption as to whose death occurred first. In this connection, reference may be made18 to section 21, Hindu Succession Act, which provides as follows:-
"21. Where two persons have died in circumstances when it is uncertain whether either of them, and if so, which, survived the other, then, for all purposes affecting succession to property, it shall be presumed, until the contrary is proved, that the younger survived the elder".
There is, however, no such presumption in the Indian Succession Act. In the absence of a statutory provision, the matter would have to be decided primarily with reference to the burden of proof. The Privy Council19 has rejected the argument that the wife being younger than her husband, survived him when both of them die together in an earthquake, observing-"it is clear to their Lords-ships that when two individuals perished in a common calamity and the question arises as to who died first, in the absence of evidence on the point there is no presumption in law that the younger survived the elder".
1. E.g. section 37, as interpreted in Goods of Sarah Eara, AIR 1931 Cal 560.
2. Sections 6-20.
3. This is with reference to section 31.
4. Sections 103 and 103A, Mental Health Act, 1959 (England).
5. Sections 17(1) and (2), Administration of Justice Act, 1969 (Eng.).
6. Commas have been added to facilitate understanding.
7. Section 69.
8. Section 177, Law of Property Act, 1925; Halsbury's, 3rd Edn., Vol. 39, p. 888, para. 1851.
9. Goods of Sew Prasad (in re:), AIR 1954 Cal 444 (446), para. 24.
10. This is with reference to section 65.
11. See the Third Schedule.
12. To be considered under the Third Schedule.
13. Point concerns section 89.
14. Section 10, Bombay Public Trusts Act, 1950.
15. Ranchhordas v. Parvatibai, ILR 23 Bom 725 (PC).
16. See the judgment of Subrahmania Ayyar, J. in Parthasarathy v. Thiruz'engadn, ILR 30 Mad 340.
17. See chapter 48, infra.
18. Section 21, Hindu Succession Act, 1956.
19. Agha Mir Ahmed v. Mudassir Shah, AIR 1944 PC 100.
1.11. Detailed examination likely to reveal other defects.-
The above is merely a brief mention of selected provisions of the Succession Act that require revision, or at least, reconsideration. A detailed examination of the Act would reveal many more areas of the law where reform is desirable, or even imperative. It is not necessary to encumber the discussion at the present stage with those details, leaving them to be dealt with under the relevant sections.
1.12. Scheme of the Act.-
It would be convenient to deal with the scheme of the Act briefly at this stage. The Act is divided into eleven parts, apart from the Schedules. Part I contains certain preliminary provisions, dealing with the definitions and power of the State Government to exempt certain classes of persons from the operation of the Act. Part II deals with the concept of domicile. The concept is of importance, because the application of the Act to movable property of a person depends thereon.
Part III deals with the effect of marriage on wills and certain allied matters. Part IV treats of the concept of consanguinity-again a concept of importance for the purposes of intestate succession.
With Part V begin the provisions actually dealing with the order of intestate succession. Chapter I of this Part is of a preliminary character. Intestate succession in the case of persons to whom this Part applies, other than Parsis, is dealt with in Chapter II. Chapter III contains special rules for Parsi intestates. It should be mentioned that this Part (Intestate succession) does not apply to Hindus, Mohammedans, Buddhists, Sikhs or Jains.
1.13. Testamentary succession is dealt with in Part VI, which is the longest part of the Act (23 Chapters), and is to be read with the Third Schedule. The first five chapters of this Part deal with the formalities requisite for wills of various classes. Chapters VI, VII and VIII are in the nature of provisions relating to the construction, operation or effect of wills and the vesting of legacies. Chapters IX to XXI are concerned with legacies in favour of particular persons, and connected matters. Chapter XXII deals with the abstract doctrine of "election". Chapter XXIII is concerned with gifts in contemplation of death-gifts which may be described as a kind of transfer ambivalent between a transfer during lifetime and a transfer by way of will.
1.14. Substantive matters concerning succession having been dealt with, the Act now proceeds to lay down procedural rules. Part VII deals with protection of the property of the deceased. Establishment of representative title to the property of the deceased on succession is the subject-matter of Part VIII which, though consisting of only six sections (sections 211 to 216), is of the greatest practical importance.
In the scheme of the Act, representative title can be established by obtaining-(i) probate, (ii) letters of administration, or (iii) succession certificate. The first two (probate and letters of administration are dealt with at length in Part IX, containing 8 chapters, third (succession certificate) is dealt with in Part X. It may be stated that these Parts of the Act are concerned with procedure and are primarily of importance to lawyers and courts.
1.15. Succession Certificates.-
Part X of the Act which deals with succession certificates is important, both for its theoretical interest and for its practical utility. In the scheme of the Act, a succession certificate is generally granted to a person entitled to a 'debt'- an expression which would embrace the major categories of what English lawyers know as "choses in action". The proceedings for obtaining the certificate are summary, and are intended to facilitate realisation of the debt.
1.16. Practical utility.-
In most cases under the Act, the taking out of letters of administration on intestacy is not obligatory and it is "enough if a succession certificate is taken out where a "debt" is to be recovered which was due to the estate of the deceased. This procedure has proved popular. The Banks, insurance Companies and others also insist on the production of a succession certificate as a matter of safeguard. The certificate has thus become the common man's usual document of title in regard to the property which he has inherited and which was not in the immediate possession of the deceased. One could appropriately describe it as the "poor man's letters of administration".
1.17. Theoretical interest.-
Apart from the practical utility of the certificate, it is of interest to note that it is India's original contribution to the law of administration of decedent's estates. Such a document is rarely to be found in other legal systems.
1.18. Changes needed on several matters.-
In view of the manifold importance of a succession certificate, we have devoted some attention to an examination in detail of the provisions relating to the procedure for obtaining it, and we were surprised to find that there were several points of substance as well as of form, which required attention. For example, to take an illustration chosen at .random-a point of substance that needs to be considered is whether this procedure should be extended to cases where a debt devolves on a person not by "succession" (as technically understood) but by "survivorship".
1.19. As to point of form, we may-again by way of illustration only-mention that the criteria by which the jurisdiction of a District Court to grant a succession certificate is regulated (sections 370 and 371) are expressed in a language different from that defining the criteria for the jurisdiction to grant probate (section 372). It would be necessary to consider whether there is any sound reason for maintaining this disparity between the two provisions. We propose to consider this and other points of substance and form relating to succession certificates in the appropriate chapter.
1.20. Part XI of the Act contains certain miscellaneous provisions. Lastly, there are schedules dealing with various matters of detail. Of these Schedules, the Third Schedule is of vital importance; the application of the provisions of the Act relating to testamentary succession (Part VI) to Hindus, Buddhists, Sikhs and Jains has to be ascertained from this Schedule1.
1. Section 57.
1.21. Private International law and the Indian Succession Act.-
So much as regards what is already contained in the Act-what may be called the "positive aspect". We may now point out a few negative aspects of the scope of the Act. In the first place, the Act does not contain the whole law of succession applicable in India.
We have already adverted to this aspect earlier1. Secondly, the Act does not contain any express provisions as to rules of private international law, excepting section 5 (which provides for the application of the lexsitus in the case of immovable property and the law of domicile in the case of movable property) and excepting possibly a few other sections.2 Even section 5 is, as the law stands, at present, of limited application3. The question of inserting suitable provision on the subject will be considered in due course4.
1. Para. 1.1, supra.
2. See Chapter 4, infra.
3. See discussion as to section 5, infra.
4. See for example, Chapter 31, infra.
1.22. Comments received on the working paper.-
The Law Commission had circulated, for comments, a Working Paper on the Act1 to interested persons and bodies. Such comments as have been received on the Working Paper will be dealt with in detail at the appropriate place under the relevant section. At this stage, it will suffice to mention that comments have been received from the following:-
(a) Two State Governments2;
(b) Three High Courts3;
(c) Delhi Hindustan Mercantile Association4; and
(d) The Catholic Bishops' Conference of India. (The Catholic Bishops Conference of India has forwarded views communicated to it by others).
Besides these, the Commission has had the advantage of perusing an interesting article published in the Statesman5, dealing with some of the proposals that had been put forth in the Working Paper6.
Incidentally, it may be mentioned that of the three High Courts that have responded to the Working Paper, the judges of two Courts have no comments to offer7. The judges of the third have welcomed the general idea of revising the Act and the proposals put forth in the Working Paper.8
Of the State Governments, again, one has no comments to offer.9 The comment of the other relates to section 30, and will be dealt with thereunder10. The comment of the Delhi Hindustani Mercantile Association raises a few points11. The comments contained in the letter of the Catholic Bishops' Conference of India relate to numerous sections.
1. Working Paper on the Indian Succession Act.
2. Law Commission File No. F. 2(6)/84-L.C., Serial Nos. 6 and 13.
3. Law Commission File No. F. 2(6)/84-L.C., Serial Nos. 5.8 and 9 (High Courts).
4. Law Commission File No. F. 2(6)/84-L.C., S. No. 6A (Hindustan Mercantile Association Delhi, letter dated 30th May, 1984).
5. Shahnaz Anklesaria, article in (20th June, 1984), The Statesman, p. 6.
6. All comments received upto the 10th October, 1984, have been dealt with, in the Report.
7. Law Commission File No. F. 2(6)/84-L.C., Serial Nos. 5 and 9.
8. Law Commission File No. F. 2(6)/84-L.C., Serial No. 8.
9. Law Commission File No. F. 2(6)/84-L.C., Serial No. 6.
10. See Chapter 7, infra (section 30).
11. See section 372(i)(f), and miscellaneous chapter.