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Report No. 110

III. Where Spouse does not Survive

9.9. Section 34.-

We now proceed to section 34, which reads as under:-

"34. Where the intestate has left no widow, his property shall go to his lineal descendants or to those who are of kindred to him, not being lineal descendants, according to the rules hereinafter contained; and, if he has left none who are of kindred to him, it shall go to the Government".

9.10. Position of illegitimate child.-

The first part of the section creates no problems.

As to the second part of the section (under which the property goes to the Government) certain observations appear to be in order. The most usual cases that fall within the latter part of section 34 are those relating to the estates of illegitimate persons who leave no wife or children. In strict theory, in such cases the property goes by escheat to the State.

If there is no widow, no lineal descendants and no kindred, the Government will, under section 34, take the whole. At one time, if an illegitimate person died leaving no wife or children, the Crown took the whole property1, but it was customary for the Crown to re-grant the property to the persons who, if the deceased had been legitimate, would have been entitled to it as next-of-kin. It is in regard to such cases that a very early notification of the Government of India2 is of great relevance.

1. Secretary of State v. Girdhari Lal, ILR 54 All 226.

2. See para. 9.11, infra.

9.11. Notification issued by the Governor-General.-

We have in mind certain notifications issued on the subject under the Government of India Act, 1853-a British statute which applied in India1. The "Governor-General" had, under that statute, power to make any grant or disposition of any property accruing to the Crown by forfeiture, escheat or otherwise, to or in favour of, any relative or connection of the persons from whom the same shall have accused2.

It appears that a notification3 was issued under the Indian Succession Act of 1865, giving effect to the practice of re-granting the property to certain relatives in cases of illegitimate persons. From the property to be re-granted, expenses of administration as well as certain shares were deducted4.

By a further notification of the Home Department5, the following scale was fixed as to the Crown's share6:-

When residue amounts to less than Rs. 5,000-1/8.

When residue not less than Rs. 5000 but less than Rs. 10,000-1/6.

When residue not less than Rs. 10,000 but less than 50,000-1/3.

When residue not less than Rs. 50,000 but less than 1,10,000-1/4.

When residue not less than Rs. 110,000 and onwards-1/3.

1. Government of India Act, 1853 (16 and 17 Vict., C. 95), section 27.

2. Henderson Testamentary Succession and Administration of Estates in India, 1928, p. 43.

3. Government of India, Notification dated 31-3-1873, Gazette of India, 5th April, 1873, Pt. 4, p. 334.

4. Henderson Testamentary Succession and Administration of Estates in India, (1928), p. 43.

5. Supplement to the Gazette of India, November 5, 1898, p. 1923.

6. Henderson Testamentary Succession and Administration of Estates in India, (1928), p. 44.

9.12. Recommendation to consider suitable arrangements, in case of escheat etc.-

We have not been able to ascertain whether these arrangements still continue. However, social justice requires that the need for some such arrangements should be considered in the context of section 34.

9.13. Section 34, Succession Act compared with section 29, Hindu Succession Act.-

There is also a point of drafting pertaining to section 34, apart from the point of substance which has been mentioned above. What we wish to point out is that the corresponding provision in the Hindu Succession Act is more precise than the provision in the Indian Succession Act. The Hindu Succession Act1 provides that the Government takes the property subject to all the obligation of the heir.

For ready reference section 29 of that Act is quoted below:-

"29. Failure of heirs.-If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the Government; and the Government shall take the property subject to all the obligations and liabilities, to which an heir would have been subject."

This seems to be an improvement on the wording of section 34 in the SuccesSion Act.

1. Section 29, Hindu Succession Act, 1956.

9.14. Section 34-Recommendation.-

In view of what is stated above, we recommend that in section 34, for the last six words "it shall the Government", the words "such property shall devolve on the Government and the Government shall take the property subject to all the obligptions and liabilities to which an heir would have been subject", should be substituted.

9.15. Section 35-Recommendation.-

This takes us to section 35. It provides that where a husband survives his wife, he has the same rights in respect of her property, if she dies intestate, as a widow has in respect of her husband's property if he dies intestate. The operation of this section, read with section 33(b), is illustrated by a Madras case1, where it was held that, in the absence of any next of kin, the husband would be entitled to the whole of the property of the deceased wife.

One important consequence of the general rule in section 35 is that the special provision, inserted in 1926 in the form of section 33A to provide especially or the wife2 (widow) applies to the husband also. Whether this was intended by the legislature when it inserted section 33A is arguable. However, on the merits, and having regard to notions current at the present day, there is no harm if section 33A also applies to the surviving husband, by virtue of section 35.

The section does not seem to need any change, either of substance or of form.

1. Ganta Daniyelu v. Yasu, AIR 1925 Mad 1110 (1111).

2. Section 33A, inserted in 1926; see para. 9.7, supra.

9.16. Scheme of sections 36-40.-

Rules of distribution where there are lineal descendants are provided for in sections 36 to 40. The broad principle is that the children share equally per capita (section 37), and (where there are not children) the same principle applies to grand-children, (section 38). Some is the position where there are no children or grand-children, but there are great-grand-children or lineal descendants in a more remote degree (section 39).

However, a different provision has been made for cases where the intestate leaves lineal descendants who do not all stand in the same degree of kinship to him. Here, per capita distinction (sections 37 to 39) is replaced by distribution per stirpes (section 40), i.e. the grand-children, great-grand-children or remoter lineal descendants take equally, between them, their deceased parents' (notional) share.

9.17. Section 37-per stirpes scheme recommended.-

In our opinion, even in cases governed by sections 37-39, there should be succession per stirpes, as that would be more in consonance with the general sense of the community. We recommend that section 37 should be revised as under, to carry out this object:

Revised section 37

"37. Where the intestate has left surviving him a child or children, but no more remote lineal descendant through a deceased child, the property shall

(a) belong to his surviving child, if there is only one, or

(b) shall be divided among all his surviving children as if section 40 applied to the case."

9.18. Section 37-Adopted and illegitimate children.-

Apart from this point of substance concerning section 37, it may also be stated that according to judicial construction, an adopted child is not a 'child' within the meaning1 of the section. Nor does the word 'child' in this section, include an illegitimate child2.

In our opinion, however, this view does not reflect modern socio-legal thinking in the matter of the rights of adopted and illegitimate children. An amendment in the law is required in order to widen its scope in this respect, so as to cover both adopted and illegitimate children.

1. Ma Khun v. Ahma, ILR 12 Rang 184; Ranbir Singh v. Bhattacharji, ILR 1940 All 100.

2. Goods of Sarah Ezra (in re:), AIR 1931 Cal 560 (562) (case of Jews), following Smith v. Massey, 1906 ILR 30 Born 500.

9.19. Section 125(1), Cr. P.C., 1973-meaning of 'mother'.-

In this context, it is of interest to note that the expression 'mother1 in the Code of Criminal Procedure, 1973 (in the provision for maintenance of wives and children), has been held to include an adoptive mother2. It was expressly held that the fact that the General Clauses Act does not define the expression 'mother' does not necessarily mean that the expression should be taken in the restrictive sense. An expansion of the scope of section 37 of the Succession Act would, therefore, be in harmony with general judicial trend.

1. Section 125(1), Cr PC, 1973.

2. Baban v. Parbatibai, 1973 Cr LJ 1436 (1437), paras. 10 to 13 (Bombay).

9.20. Recommendation to amend section 37, or to insert definition of "child".-

To implement the above point, two alternatives are open-(i) the addition of a suitable Explanation to section 37, so as to include adopted and illegitimate children within the expression "child", (ii) or, in the alternatives, inserting a definition of the expression "child" as including adopted and illegitimate children, in section 2 (which is the general defining section). The second alternative is preferred, as it would settle the point in regard to all provisions of the Act.

If the second alternative mentioned above is adopted, the following definition1 may be added in section 22:-

"'Child' includes-

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

(b) an illegitimate child."

1. To be carried out under section 2.

2. Compare (a) section 3(57), General Clauses Act, 1897 (Definition of 'son'). (b) Law Commission of India, 60th Report (General Clauses Act), para. 3.24 (proposed definition of 'daughter').

9.20A. A comment received from the Catholic Bishop's Conference considered.-

Before proceeding to the next section, we would like to refer to a comment forwarded to us by the Catholic Bishop's Conference of India1. The point relates to our recommendation to the effect that the expression "child" should be defined as including an adopted child in the case of anyone whose personal law permits adoption2. It is stated in the comment that amongst Christians there is no personal law permitting adoption and that the recommendation would amount to discrimination against the child who is a Christian and who is sought to be adopted by a Christian.

The suggestion is that "Either Christians should be allowed to legally adopt children or this amendment should be further amended". We would like to point out, however, that the question of permitting adoption in communities in respect of whom it is not allowed at present is outside the scope of the Succession Act, with which this Report is concerned. The Act primarily deals with the devolution and distribution of property on death.

Assuming that the law applicable to any group of persons permits adoption, the Succession Act, wherever it uses the expression "child", should ensure that the expression will cover an adopted child. In other words, there should be maintained a consistency and harmony between the verbal usage in the Succession Act and the law outside the Succession Act. That is the only object of the definition of "child" recommended by us. How far the law outside the Succession Act should permit adoption, and whether that law should be widened, is a matter which cannot be dealt with in the Succession Act.

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

2. Para. 4.8, supra.

9.21. Where intestate has left no child but grand child or grand-children.-

This takes us to section 38, which reads-

"38. Where the intestate has not left surviving him any child, but has left a grand child or grand-children and no more remote descendant through a deceased grand-child, the property shall belong to his surviving grand child if there is only one, or shall be equally divided among all his surviving grand-children.

Illustrations

(i) A has three children, and no more, John, Mary and Henry. They all die before the father, John leaving two children, Mary three and Henry four. Afterwards A dies intestate, leaving those nine grand-children and no descendant of any deceased grand. child. Each of his grand-children will have one-ninth.

(ii) But if Henry has died, leaving no child, then the whole is equally divided between the intestate's five grand-children, the children of John and Mary."

9.21A. Section 38-Rights of issue of pre-deceased child.-

Section 38 thus applies where there are no children, but there are grand-children. Comments are required on one point which arises out of the section. Under the section, lineal descendants of the second degree take equally per capita. It is a matter for consideration whether this position should continue. It would appear that in England1, where a child predeceases the intestate, but leaves issue surviving at the date of the intestate, then the issue, if they attain the age of 18 years or marry under the age of 18 years, take the share in the residuary estate of the intestate which the parent would have taken if he had attained a vested interest. In this sense, the issue takes per stirpes in England.

1. Section 47(1)(iii), Administration of Estates Act, 1925.

9.22. Need for amendment.-

It appears to us that on the merits, the English rule on the subject is better than the Indian section. It should be pointed out that in the case of Parsis1, even the Indian Succession Act provides distribution per stirpes (in the corresponding situation). No doubt, some distinction is, in regard to Parsis, made between cases where the predeceased child was a son and cases where the predeceased child was a daughter. But that distinction is not material for the present purpose. Further, even for Indian Christians and others, where2 descendants of varying degrees survive, succession per stirpes is the rule.

1. Section 53, Indian Succession Act, 1925.

2. Section 40.

9.23. It may be pointed out that section 38 applies, inter alia, to Indian Christians, and presumably they would like to be governed by the rule of distribution per stirpes, rather than by the present rule of distribution (per capita). If this assumption is correct, then section 38 should be amended so as to substitute succession 36 per stirpes instead of the present rule of succession per capita.

9.24. Recommendation as to section 38.-

We, therefore, recommend that section 38 should be revised as under:-

Revised section 38

"Where intestate has left no child, but grand child or grand-children.-Where the intestate has not left surviving him any child, but has left a grand-child or grand-children and no more remote descendant through a deceased grand-child, the property shall-

(a) belong to his surviving grand child, if there is only one, or

(b) shall be divided among all his surviving grand-children, as if section 40 applied to the case.

Illustrations

(i) A has three children, and no more, John, Mary and Henry. They all die before the father, John leaving two children Mary three and Henry four. Afterwards A dies intestate, leaving those nine grand-children and no descendant of any deceased grand-child. Children of John, Mary and Henry will have one third, and will divide that one third equally amongst them selves.

(ii) But if Henry has died, leaving no child, then the children of John will have one half and the children of Mary will have one half, and the children of each divide that one half equally amongst themselves."

9.25. Section 39.- This takes us to section 39, which reads-

"In like manner (he property shall go to the surviving lineal descendants who are nearest in degree to the intestate, where they are all in the degree of great-grand-children to him, or are all in a more remote degree." This section needs no change.

9.26. Section 40.- Section 40 reads as under:-

"40. (1) If the intestate has left lineal descendants who do not stand in the same degree of kindred to him, and the persons through whom the more remote are descendants from him from him are dead, the property shall be divided into such a number of equal shares as may correspond with the number of the lineal descendants of the intestate who either stood in the nearest degree kindred to him, died before him, leaving lineal descendants who survived him."

(2) One of such shares shall be allotted to each of the lineal descendants who stood in. the nearest degree of kindred to the intestate at his decease; and one of such shares shall be allotted in respect of each of such deceased lineal descendants; and the share allotted in respect of each of such deceased lineal descendants shall belong to his surviving child or children or more "remote lineal descendants, as the case may be; such surviving child or children or more remote lineal descendants always taking the share which his or their parent or parents would have been entitled to respectively if such parent or parents had survived the intestate."

The section needs no change.



The Indian Succession Act, 1925 Back




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