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Report No. 110

Chapter 51

Summary of Recommendations

The recommendations made in the preceding chapters are summarised below:-

Preliminary

(1) For the purpose of the Indian Succession Act, the definition of "Hindu" in Hindu Succession Act, 1956, section 2, should be adopted, 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. This should be carried out by amending section 2 of the Indian Succession Act, by inserting a definition of the expression "Hindu" after section 2(c). As a consequential change, expressions referring to Buddhists, etc. along with Hindu, wherever they occur in the Act, may be omitted.1

1. Paras. 3.7 and 3.14.

(2) A definition of the expression "child" should also be inserted, as under:- "(aa) 'child' includes-

(a) an adopted child, in the case of any one whose personal law permits adoption;

(b) an illegitimate child."1

1. Paras. 3.8, 3.9 and 9.18.

(3) A definition of the expression "Parsi" should be inserted.

(4) To remove the discrepancy between the definition of "probate" as occuring in section 2(f) and the form of probate as given in the Sixth Schedule to the Act, the definition of "probate" should be revised, and the expression "probate" should be defined us meaning 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.1

1. Para. 3.20.

(5) In regard to the rules of conflict of laws as applicable on the subject of the formal validity of wills, the connecting factors that could possibly operate should be made more liberal than at present, broadly on the lines of the (English) Wills Act, 1963. This is desirable in order to avoid certain anomalies of the present law, which are pointed out in the Report.1

1. Paras. 4.2, 4.18 and 4.20.

(6) To avoid a possible inconsistency in the legislation, it will also be necessary, as a consequential change, to modify suitably the text of section 5, which is relevant on the subject of conflict of laws.1

On adding the tests that will become operative by virtue of the proposed new provisions relating to formal validity of wills, the restrictive rule contained in section 5 would, to some extent, become inaccurate, since that section provides for only two criteria (law of domicile of a person at the time of his death, or the law of India). On this score, section 5 will need suitable amendment.2

5. Para. 4.18, second sub-para. and para. 5.19.

2. Paras. 4.14 and 4.19.

(7) Insertion of certain new sections 3A to 3E is recommended, to deal with the rules of conflict of laws as to the formal validity of wills.1

1. Para. 4.20.

(8) Section 4, at present, provides that Part II of the Act (sections 4 to 19) which deals with domicile, does not apply to Hindus, Mohammedans, Buddhists, Sikhs or Joins. It is, however, desirable that Part II of the Act should be extended to the persons who are at present excluded from its scope by section 4. The reason is, that even now, the rules contained in sections 5 to 18 governing domicile are, by judicial decisions, followed, in principle, in determining the domicile of the excluded persons. Section 4 should therefore be deleted.1

1. Paras. 5.12 to 5.15.

(9) In regard to section 5, which deals with the law that will regulate succession to the immovable and movable property of a person deceased, it is necessary to provide an exception for cases where the deceased has, by his will, expressly opted for applying the national law in relation to succession to his movable property.

This change should be carried on in section 5, even if the recommendation for the addition of liberal provisions generally in regard to the law determining the validity of execution of wills is not accepted1

1. Para. 5.20 to 5.22.

(10) In the light of the separate recommendation for inserting certain tests relating to the formal validity of wills which are not contained in present section 5, section 5 will require consequential amendment, by adding, at the end of that section, the following new sub-section:

"(3) The provisions of this section shall be subject to those of Chapter 1A."1

1. Para. 5.23.

(11) With reference to section 6, which provides that a person can have only one domicile for the purpose of regulating succession to his movable property, it is desirable to provide that where it is difficult to determine the domicile of a person by reason of the fact that he has two or more places of permanent residence, the place where he last permanently resided shall be the place of his domicile. Section 19 may be the appropriate place for carrying out this object, and it is therefore, recommended that a suitable Explanation should be added to that section for the purpose.1

1. Para. 5.25.

(12) Under section 7, latter half, the domicile of origin of a posthumous child is that of the father of the child at the time of the father's death. This rigid provision might lead to certain anomalies, which are pointed out in the Report. It is, therefore, recommended that in section 7, latter half, the mother's domicile should be substituted in place of the father's.1

In certain exceptional circumstances, however, such a rule might not benefit the child, for example, where the mother deliberately and mala fide changes the domicile so as not to benefit the child. For this purpose, section 14 may be amended to the effect that where the change of domicile effected by the mother is not for the welfare of the minor, the change in the domicile of the minor, which may otherwise follow from a change of domicile on the part of the mother, is not to be regarded as a necessary consequence of change in the mother's domicile.2

1. Para. 5.28.

2. Para. 5.28 A.

(13) As regards section 7, latter half, us well as section 14, to carry out the above recommendations, suitable re-draft/amendment have been recommended in the Report.1

1. Para. 5.29.

(14) With reference to section 10, which deals with the acquisition of a new domicile, a verbal change is recommended so as to substitute, for the existing word "man", the word "person".1

1. Para. 5.37.

(15) Illustration (i) to section 10 should be verbally amended, and illustrations (vi) and (vii) to that section should be deleted as obsolete, for reasons given in the Report.1

1. Para. 5.42.

(16) The Explanation to section 10 should be revised as under:-

"Explanation-A person is not deemed to have taken up his fixed habitation in India or in any other country merely by reason of his residing there in service of any Government, authority or person or in the exercise of any profession or calling, but if a person, having gone to another country for the purpose of service or the exercise of any profession or calling intends to remain there, he may acquire a domicile in that country."1

1. Para. 5.41.

(17) In regard to section 11 which deals with a special mode of acquiring domicile by making a declaration in the prescribed office, it is desirable to clarify its scope (which is intended to be a limited one) by adding an Explanation to the effect that the provisions of the section confer a limited domicile only for the purpose of regulating succession to movable property, and not for any other purpose.1

1. Para. 5.46.

(18) Section 11 provides that "any person" may acquire a domicile in India by depositing a specified declaration. It should be made clear that the section is not intended to cover the case of a person who is not competent to contract. The section should, therefore, be amended by adding, after the words "any person," the words "competent to contract by the law of the country in which he was immediately before such declaration domiciled."1

1. Para. 5.47.

(19) As regards section 14 which deals with the domicile of the minor, certain changes, based largely on section 4, Domicile and Matrimonial Proceedings Act, 1973 of England, are recommended.1

1. Para. 5.8.

(20) Further, from the scope of section 14, the case where the parent mala fide changes his domicile, should be excluded. This change has been recommended by the Commission while dealing with section 7.1

1. Paras. 5.27. and 5.59.

(21) To provide for the domicile of a minor who has no parent and has only a guardian, the following new section should be inserted:-

"14A. A change in the domicile of a guardian other than a parent brings about, a change in the domicile of the ward, unless, by virtue of the change of domicile, the guardian ceases to be guardian and the relationship of guardian and ward thereby ceases."1

1. Para. 5.61.

(22) Section 15 provides that, by marriage, a woman acquires the domicile of her husband, if she had not the same domicile before. How far the section should be retained in its present form, depends on the view to be taken with reference to section 16.1

1. Para. 5.61.

(23) As regards section 16 which, in its main paragraph, provides that the wife's domicile during marriage follows her husband's domicile, it is necessary to substitute a different rule, which would leave the domicile of a married woman to be governed by the rules that will otherwise apply.

(24) The amendment of section 16 recommended above1 would render the Exception to section 16 unnecessary. The Exception provides that the wife's domicile no longer follows that of her husband, if they are separated by the sentence of a competent court or if the husband is undergoing a sentence of transportation. However, if section 16 is not amended as recommended above, it will be necessary to carry out certain verbal changes in the Exception, having regard to current usage and law. Hence, if the main paragraph of section 16 is to be retained in the present form, the Exception to the Section should be revised as under:-2

"Exception.-The wife's domicile no longer follows that of her husband if they are separated by a decree of judicial separation or the husband is undergoing a sentence analogous to transportation."

1. Para. 5.74.

2. Para. 5.75.

(25) If sections 15 and 16 (relating to the effect of marriage on domicile) are retained without substantial amendment, a new section 16A should be inserted to deal with the domicile of widows and divorced woman, as under:-

"16A. (1) A widow retains, after the death of her husband, her late husband's last domicile until she changes it in accordance with the provisions of this Act.

(2) A divorced woman retains, after the divorce, her former husband's last domicile, until she changes it in accordance with the provisions of this Act."1

1. Para. 5.78.

(26) Section 18, at present, provides that an insane person cannot acquire a new domicile in any other way than by his domicile following the domicile of another person. It is recommended that the section should be revised as under:-

"18. The domicile of an insane person follows that of the person in whose care and protection he is for the time being."1

1. Para. 5.83.

(27) To meet cases where domicile of a person -cannot be determined, new section 18A should be inserted, on the following lines:-

"18A. Where it is difficult to determine the domicile of a person by reason of the fact that he has two or more places of permanent residence, the place, being one of the two or more places aforesaid, where such person last resided permanently, shall be deemed to be the place of his domicile."1

1. Para. 5.84.

(28) To provide for cases where foreign law cannot be easily proved, the following new section 19A should be inserted:-

"19A. The court may, for the purpose of this Chapter, presume that the law of a foreign country is the same as that of India."1

1. Para. 5.88.

(29) Section 22(1) should be revised as under:-

"(1) The property of a minor may be settled in contemplation of marriage, provided the settlement is made by the minor-

(a) with the approbation of the minor's father or

(b) if the father is dead or absent from India or under disability, with the approbation of the minor's mother, or

(c) if both the father and the mother are dead or absent from India or under disability, with the approbation of the High Court."1

1. Para. 6.10.

(30) To clarify the position under section 29 on the points discussed in the Report, two recommendations are made:-

(a) The Travancore Christian Succession Regulation1 of 1092 should be repealed by an express provision. This course may be adopted if, as a matter of social policy, it is considered that the. Indian Succession Act should apply to the persons governed by the Travancore Regulation, referred to above.

If, on the other hand, it is considered that as a matter of social policy, the provisions of the Travancore Christian Succession Regulation should govern succession to the persons concerned, then there should be inserted a provision in section 29 of the Indian Succession Act to the effect that the Travancore Regulation would apply to Christians governed by that Regulation in respect of intestate succession

(i) in the State of Kerala, and

(ii) the adjoining areas in the State of Tamil Nadu (in the district of Kanyakumari and Shencottah taluk).

(b) Besides the above amendment, an Explanation should be added to section 29(2) of the Indian Succession Act, to the effect that "law" in this section does not include custom.2

(c) The recommendation made above regarding the Travancore Succession Regulation applies with necessary adaptation, to the Cochin Succession Act also.3

(d) If the Indian Succession Act, 1925, becomes applicable to the persons in question, provisions made for daughters by the father should be taken into account when the succession opens on intestacy. It is, therefore, recommended that suitable provision should be made to the effect that from the share to be distributed to a daughter on intestacy, the amount or value of the property so provided by the father during his lifetime should he deducted, provided the following conditions in favour of the daughter are fulfilled:-

(i) the making of such provision is evidenced in writing, whether or not the writing is stamped or registered; and

(ii) the amount of the provision or its value, on each individual occasion, is not less than five hundred rupees.

1. Para. 8.12.

2. Para. 8.12.

3. Para. 8.12.



The Indian Succession Act, 1925 Back




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