Report No. 110
Rules in Cases of Intestates other than Parsis (Sections 31 to 49)
9.1. Scope of the provisions and general scheme.-
Rules of succession in cases of intestates other than Parsis are dealt with in sections 31 to 49. The scheme of this group of sections may be briefly stated. The first section in this group (section 31) excludes Parsis; and it may also be noted that section 29(1) has already excluded, from the entire Part, Hindus, Muhammadans, Buddhists, Sikhs and JaMs. Devolution of property of an intestate governed by this Part is in the order, and according to the rules, contained in the succeeding sections.
Section 32 so provides. The rules differ according as the intestate has left a lineal descendant-section 33(a) and sections 36 to 49, or has not left a lineal descendant sections 33(b), 33(c) and 33A. The rules also differ in their content if the intestate has left a widow (sections 33 and 33A and section 36, portion in parenthesis), as distinguished from the situation where he has not left a widow (section 36, portion outside the parenthesis). As between the lineal descendants themselves, the order of preference is governed by sections 36-41.
The rules apply whether or not there is a widow, but after deducting her share-section 36. Where there are no lineal descendants, the position is governed by sections 42 to 48, which apply whether there is or there is not a widow, but after deducting her share-section 41. What has been stated above as to the widow applies also in relation to the widower-section 35.
The last section in this group-section 49 is a special rule meant for a special situation, namely, that of "advancement", and dispenses with the need to bring the "advancement" into the "hotchpot".1
1. See the marginal note to section 49, for these expressions.
9.2. Section 31.-
Coming to a detailed consideration of each section, section 31 defines the scope of Chapter 2 of Part 5, by providing that this Chapter shall not apply to Parsis. This was necessary because section 29(2), which is also in Part 5, would otherwise have the effect of applying the provisions of this Chapter, inter alia, to Parsis also.
The section needs no change.