Report No. 110

IV. No Lineal Descendants

9.27. Section 41.-

Section 41 provides that rules of distribution where the intestate has left no lineal descendants shall be those contained in sections 42 to 48, "after deducting the widow's share, if he has left a widow" Presumably, where a female intestate has left surviving her husband, the husband's share will also be deducted by virtue of section 35, and the expression "widow" in section 41 will, accordingly, be read as including the widower, husband. Section 41 need not be amended on this point.

9.28. Sections 42-46.-

An important social question is raised by sections 42 to 46, which apply where the intestate has left no lineal descendant. These sections do not apply to Hindus, Muslims and Parsis, but as regards other persons, they constitute the general law of succession on intestacy1. How, in the first place, the sections give a preference to the father2, so that if the father is alive, the mother has no share in the estate of the deceased. This is not in conformity with current thinking as to the status of women. The law is in need of reform on this point.

Secondly, where the mother is alive, but there is also brothers or sisters of the intestate living, the mother has to share with the brother or sister, (as also with the children of any pre-deceased brother or sister).

As is evident from section 46, it is only when the father is dead, and there is neither brother nor sister nor child of any brother or sister of the intestate, that the property belongs to the mother.

1. Section 29.

2. Section 42.

9.29. English law.-

It would appear that in England, the law on the subject is different1. Even where brothers and sisters of the intestate are alive, the father and the mother take the property. They share equally, and if only one of them survives he or she takes the whole.

1. Section 46, Administration of Estates Act, 1925 (England).

9.30. Recommendation to amend sections 43-46.-

We are of the view that the provision in England is more in consonance with the wishes of a person dying intestate and belonging to the communities to whom sections 43 to 46 apply. We, therefore, recommend that sections 43-46 should be so amended.

9.31. Position amongst Parsis.-

It may also be noted that amongst Parsis, the position is different1 in regard to the situation with which we are now concerned. In the first place, amongst Parsis, the father and the mother exclude the brother and sister. Secondly, the father does not totally exclude the mother but takes double her share, there being a general provision2 to the effect that "each male shall take double the share of each female standing in the same degree of propinquity."

1. Section 54(d), read with the Second Schedule, Part I , and section 55 read with the Second Schedule, Part II.

2. Section 54(d) and section 55.

9.32. Section 47.- Section 47 reads as follows:-

"47. Where the intestate has left neither lineal descendant, nor father, nor mother, the property shall be divided equally between his brothers and sisters and the child or children of such of them as may have died before him, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate's death."

9.33. Recommendation for amendment.-

It should be noted that this section does not apply until there is at least one brother or sister alive. We are of the view that this should be made clear, in order to maintain symmetry1 with the wording of section 46 and section 48. The object could be achieved by adding, after the words "nor mother", the words "but has left a brother or a sister" We recommend that section 47 should be amended as above.

Revised section 47 will read as follows:-

"47. Where the intestate has left neither lineal descendant, nor father, nor mother, but has left a brother or a sister, the property shall be divided equally between his brothers and sisters and the child or children of such of them as may have died before him, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate's death."

1. Note the words "and there is neither brother nor sister "in section 46 and almost similar words in section 48.

9.34. Section 48.- Section 48 reads as follows:-

"Where the intestate has left neither lineal descendant nor parents, nor brother, nor sister, his property shall be divided equally among those of his relatives who are in the nearest degree of kindred to him."

[Illustrations not quoted].

These relatives take per capita, as is shown by illustration1 (iv) to the section.

1. See section 48, illustration (iv).

9.35. Need for change as to succession per stripes.-

Now, this position (distribution per capita) may be satisfactory as a general rule, but there is one particular situation in regard to which some discussion is necessary. Where there are no brothers or sisters, but only children of brothers and sisters, (hey also take per capita under the present law. This seems to be unjust. The better course, in our opinion, would be to provide that the succession should be per stirpes in such cases. The accident of the death of one issue should not affect the share of his or her descendants.

9.36. Contrast between section 48 and section 47.-

The position under present section 48 may be contrasted with the rule applicable1 under section 47 where there are brothers or sisters and also children of brothers or sisters. In such a case, the succession is per stirpes, under section 47. There appears to be no justification for having a different rule under section 48, at least where the persons entitled are the children of brothers and sisters.

1. Section 47.

9.37. Recommendation to amend section 48 and illustration (iv).-

We, therefore, recommend that section 48 should be amended so as to provide for succession per stirpes. Revised section 48 will read as under:-

"48. Where the intestate has left neither lineal descendant nor parents, nor brother, nor sister, his property shall be divided equally among those of his relatives who are in the nearest degree of kindred to him.

Explanation.-Where such relatives are children of brothers or sisters of the intestate, they shall take stirpes."

Illustration (iv) to section 48 should be revised accordingly. 9.38. Section 49.-This takes us to section 49, quoted below:-

"49. Where a distributive share in the property of a person who has died intestate is claimed by a child, or any descendant of a child, of such person, no money or other property which the intestate may, during his life, have paid, given or settled to, or for the advancement of, the child by whom or by whose descendant the claim is made shall be taken into account in estimating such distributive share."

Briefly speaking, the object of this section is to preclude any argument that money given by way of "advancement" should be brought into the hotchpotch

9.39. Parsis-position regarding.-

Section 49 does not, in terms, apply to Parsis1.

But the Bombay High Court has held2 that the English law would be applicable to parties who were Parsis with regard to the disposal of immovable property situated in the Island of Bombay. The High Court referred to the opinion of Mr. Roper, (then Acting Advocate-General of Bombay) who, after examining the authorities on Parsi usages, which he found very indefinite and inconclusive, said that it would be difficult to assert that there was "any system of law peculiar to Parsis", subject to the English law. This opinion was laid before the Indian Law Commission, and later the Parsi community also accepted it.

In later cases also, the Bombay High Court seems to have allowed the application of the common law doctrine of advancement to Parsis in India. Coyajee, J. has observed3, "I may say that as regards the theory of advancement being made applicable to Parsis it has become such a well-settled law by this time that several recent decisions on Originating summons have been answered by the learned judges without finding any necessity to deliver judgements on those questions."

1. Dhunjibhai v. Navazbai, 1881 ILR 2 Born 75 (82).

2. Naoroji v. Rogers, (1867) 4 BHCR 1 (97, 118) (traces history).

3. Dursha Bharucha v. Dr. Edi Phiro Bharucha, (unreported) suit No. 271 of 1952 (OS) (Coyajee, J.) quoted in Paruck Succession Act, (1966), p. 52.

9.40. No change.- The above discussion does not, of course, lead to any amendment of the section.