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Report No. 110

II. Order of Succession where Spouse Survives

9.3. Section 32-pre-nuptial settlement.-

Under section 32, the property of an intestate devolves upon the wife or husband or upon those who are the kindred of the deceased, in the order and according to the rules contained in the Chapter. The Explanation to the section deals with the special case of a widow who, by a valid contract made before her marriage, has been excluded from her distributive share of her husband's estate. This provision is based on the English doctrine of pre-nuptial settlement. While two views can be taken as to the soundness of such a provision, we will not recommend a change in the absence of a specific demand or suggestion for change.

9.4. Section 33.-

Where the intestate has left a widow section 33 governs the matter. The section makes detailed provisions for three possible situations, namely, (i) where a lineal descendant also survives, (ii) where no lineal descendant survives but persons who are kindered (other than lineal descendants) survive, and (iii) where no kindered survives. The position is briefly as under:

(i) In the first situation, the widow gets one-third of the estate, and the remaining two-third goes to the lineal descendants, in accordance with detailed rules contained in later sections1.

(ii) For the second situation, section 33A (introduced in 1926) makes a special provision, giving certain rights to the widow2. Subject to that special provision, one half of the property bekings to the widow, and the other half to the kindred, in accordance with rules contained in later sections.

(iii) In the third situation, the whole of the property belongs to the widow.

1. Sections 36 to 40.

2. Para. 9.7, infra.

9.5. Position in England where lineal descendants do not survive.-

With reference to the second situation mentioned above1, namely, the situation where lineal descendants do not survive, the change made in the law in England should be noticed. Under section 46 of the Intestates' Estates Act, 1952, on the death of a husband intestate, if he leaves no surviving issue, parent, brother or sister of the whole blood or issue of such brother or sister, his whole estate will pass to the widow2.

1. Para. 9.4(ii), supra.

2. Section 46, Intestates' Estates Act, 1952 (Eng.).

9.6. Recommendation to amend section 33 where no lineal descendant survives.-

The English provision1 is, in our opinion, worth adopting, as it is more in consonance with present day sentiments. We recommend that section 33 should be amended accordingly.

1. Para. 9.5, supra.

9.6A. We should mention that an article published in the Statement1, commenting on the Law Commission's Working Paper on the Act, has stated that if a husband (belonging to the communities governed by sections 33 to 49) dies leaving no lineal descendants, but has kindred, then, at present, only one half goes to the widow, and the distant relatives take the rest.

She suggests that the widow should get the whole of the property in such cases. We may, in this connection, point out that this is precisely what we had proposed in regard to section 33 in the Working Paper, and it is also what we are recommending in this Report2. The changes which we are recommending in section 33A are, of course, in addition to the change recommended in section 33.

1. Shahnaz Anklesria Laws which discriminate against women, (20 June, 1984) Statesman, p. 6.

2. Section 33, as recommended to be amended.

9.7. Section 33A.-

This takes us to section 33A. This is a lengthy section, but it is enough to quote the first two sub-sections:

"33A. (1) Where the intestate has left a widow but no lineal descendants and the net value of his property does not exceed five thousand rupees, the whole of his property shall belong to the widow.

(2) Where the net value of the property exceeds the sum of five thousand rupees, the widow shall be entitled to five thousand rupees thereof and shall have a charge upon the whole of such property for such sum of five thousand rupees, with interest thereon from the date of the death of the intestate at 4 per cent per annum until payment".

[The rest of the section is concerned with matters of details].

9.8. Recommendation to amend section 33A, so as to increase the amount and the rate of interest.-

We are of the opinion that the amount of Rs. 5,000 mentioned in section 33A(1) should1, having regard to the fall in the value of the rupee, be increased to Rs. 35,000. We may note that the value of the rupee has certainly fallen seven times since the section was inserted. We recommend that section 33A should be amended accordingly. In our proposal in the Working Paper, we had suggested an increase upto Rs. 20,000. But, on further consideration, we have reached the above conclusion. We may mention that2 one of the suggestions forwarded to us by the Catholic Bishops' Conference would even favour substitution of Rs. 50,000.

The rate of interest under section 33A should also, in our opinion, be suitably increased, to, say, 9 per cent, having regard to present conditions. We recommend that section 33A should be amended, so as to substitute the above increased figure of Rs. 35,000 for Rs. 5,000 [in both the sub-sections] and also the increased rate of interest of 9 per cent in [sub-section (2)].

1. Para. 9.7, supra.

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

The Indian Succession Act, 1925 Back

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