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Report No. 110

V. History of the Statutory Law of Succession in India

2.18. History of the Succession Act.-

This brings us to the statute law on the subject of succession in general in India. History of the general statutory law on succession may be conveniently dealt with under the following periods.

(1) The period before codification

During the period upto 1865, Hindus and Muslims were governed by their personal law1, and persons belonging to other groups were, in general, left to be governed by the English law2. This had been specifically held in relation to the right of exercise of testamentary power over lands held in the mofussil by a Frenchman having a British domicile3. There were, no doubt, some refined distinctions as between the Presidency towns and the Mofussil, but these need not detain us, not being material for the present purpose.

It may be stated that application of the English law to Parsis, at least in the Presidency towns, was well-settled.4

1. Act of Settlement, 1781, section 17.

2. J.S. Jebb v. Lefebre and Carellne, English decisions (old series). Vol. 1, p. 92.

3. Mayor of Lyons v. East India Co., 1 MIA 175.

4. Naoroji v. Rogers, 4 Bombay High Court Reports.

2.19. History of testamentary Jurisdiction.-

With reference to history of the testamentary jurisdiction of the courts in India, it has been stated1:-

"Testamentary jurisdiction was first given to the Supreme Court by these original charters printed in two Merley's Digest, p. 549, that in Bengal dated 1774 being the first. And it was then given as a branch of the ecclesiastical jurisdiction, as was to be administered according to the ecclesiastical law as in force in the Diocese of London.

In the course of the series of events by which the British territories in India grew from a group of trading settlements into an empire, various branches of jurisdiction which sprang originally from an ecclesiastical origin, have come to be applied, by a number of legislative Acts, to new territories and new classes of persons, and administered by law tribunals.

And in the process of this development ecclesiastical jurisdiction has been completely discarded and the Legislature has gradually evolved an independent system of its own, largely suggested, no doubt, by English law, but also differing much from that law, and purporting to be a self contained system. Even in the case of the High Courts, the successors of the Supreme Court (which alone possessed ecclesiastical jurisdiction) the testamentary jurisdiction, which the charters purport to confer upon them, is not given as a branch of ecclesiastical jurisdiction, and is not made dependent upon the law administered by English courts.

From an early date, the Supreme Court granted probates of Hindu and Mohammedan Wills. (See Babu Muttra's case, Morton 75, also reported in Clark's Rules and Orders, p. 119). The practice varied greatly from time to time, and it was never perhaps very satisfactorily determined upon what basis the jurisdiction rested. It was, however, established that such probate might issue.

But the Supreme Court never applied the English rule as to the necessity for probate to Hindu and Mohammedan Wills, nor do they attribute to such probates, when granted, the English doctrines as to the operation of probate. Under the system a Hindu or Mohammedan executor took no title to property merely as such by virtue of the probate. In the case of Mohammedan executors such a title was created for the first time by the probate and Administration Act."

1. Kurrutulain v. Nuzhut-ud-Dowla, ILR 33 Cal 117 (128) (Sir Arthur Wilson J.).

(2) Period before 1865-Hindus and Muslims

2.20. In the period before 1865, considerable uncertainty prevailed as to the law applicable to persons belonging to communities other than Hindus and Muslims. Before 1865, the Hindus and Muslims were governed by their respective personal laws, in matters of inheritance and succession. The position was, however, obscure in relation to other persons-for example, Anglo-Indians, Parsis, Jews, Armenians, Christians and others. In general, the English law was applied in the Presidency towns, but the position as regards the Moffussil was not very clear1.

This obscurity of position was, in fact, referred to by Sir Henry Maine2, when he introduced the Bill that led to the Succession Act of 1865. Efforts by the First Law Commission to clarify the law failed to yield fruit.

1. M.P. Jain Indian Legal History (1972), pp. 437, 490, 495, 556.

2. Statement of objects and reasons attached to the Indian Succession Bill, which became the Act of 1865.

2.21. Obscurity in the first half of 19th century.-

The law defining the rights and obligations of non-Hindus and non-Muslims was thus in an extremely obscure position in the first half of the nineteenth Century. In the presidency towns, the English law was applied to members of such communities, as stated above1. Outside the presidency towns, most of the courts in the Mofussil came to apply, under the phrase "justice, equity and good conscience", in all cases not provided for by the legislature, the substantive personal law of the particular person.

1. Para. 2.20, supra.

2.22. First Law Commission.-

In 1935, the First Law Commission1 recommended that the English law should be declared to be the law applicable to such persons, but this recommendation was not accepted2.

1. First Law Commission, 'lex loci' Report, (31st October, 1835).

2. Rankin Background to Indian Law, (1946), p. 37.

2.23. Second law Commission.-

When the Second Law Commission was established under the. Charter Act of 1853, it adopted a different approach. It did not favour the introduction of English law, but it considered it desirable to assimilate the law prevalent throughout the country1.

2. Second Report of the Second Law Commission, Cambridge History of India, Vol. 6, p. 18.

2.24. Third Law Commission.-

A lot of legislative activity was witnessed during the period of the Third Law Commission. Amongst the enactments framed by the Third Law Commission was the Indian Succession Act, 1865. One of the objects of this Act was to regulate the position relating to inheritance of property after death in regard to persons other than Hindus and Muslims.

The draft of the Indian Succession Bill was submitted by the Third Law Commission in its First Report1. Originally, it was proposed as "the Indian Civil Code Chapter 1" - a title which was later altered as the Indian Succession Act of 1865. It may incidentally be stated that Third Law Commission did its work in England. Its Members were Sir John Romilly (Master of the Rolls), Sir William Erie (Chief Justice of the Common Pleas), Sir Edward Ryan, Mr. Robert Lowe (Lord Sherbrooke), Mr. Justice Willes and Mr. J.M. Macleod (who had been a Member of the First Law Commission also).

1. Third Law Commission, First Report, (1854-1855).

2.25. The Act of 1865 dealt with succession, both testamentary and intestate. However, the Act exempted Hindus and Muslims from its scope. Its utility lay in the codification of the law of succession as regards other persons. The draft Bill prepared in England by the Third Law Commission, as already stated, was well received in India. Rankin has described it as a "most valuable and distinguished piece of work"1.

1. Rankin Background to Indian Law, (1946), p. 47.

2.26. Speech of Sir Henry Maine.-

It was mentioned in the speech of Sir Henry Maine, when he introduced the Bill which led to the Act of 1865, that "the rules which the Act included were, for the most part, so extremely simple as to be readily intelligible to a layman. The Act was to serve as the general law of testate and intestate succession governing all who were not expressly exempted from its operation.

Europeans, Eurasians, Jews, Armenians and Indian Christians were made subject to the Act. Hindus, Mohammedans and Buddhists were excluded from the purview of the Act. The Governor-General-in-Council was given power to exclude any Indian races or tribes not falling within these classes. The Act applied to Parsis in cases of testamentary succession.

2.27. Post-1865 legislation.-

In between 1865 and 1925, a number of other Acts relating to the law of succession were passed. All these were incorporated in the Act of 1925, which was a consolidating measure in the true sense.

(3) The period of consolidation

2.28. Act of 1925.-

The period of consolidation of the statutory law of succession in India thus begins in 1925. The various enactments consolidated by the Indian Succession Act, 1925, were:-

(1) The Succession (Property Protection) Act, 1841 (Act 19 of 1841).

(2) The Indian Succession Act, 1865 (Act 10 of 1865).

(3) The Parsi Intestate Succession Act, 1865 (Act 21 of 1865).

(4) The Hindu Wills Act, 1870 (Act 21 of 1870).

(5) The Married Women's Property Act, 1874 (Act 3 of 1874), section 2.

(6) The Probate and Administration Act, 1881 (Act 5 of 1881).

(7) The District Delegates Act, 1881 (Act 6 of 1881).

(8) The Probate and Administration Act, 1889 (Act 6 of 1889).

(9) The Succession Certificate Act, 1889 (Act 7 of 1889).

(10) The Probate and Administration Act, 1890 (Act 2 of 1890).

(11) The Native Christians Administration of Estates Act, 1901 (Act 7 of 1901).

(12) The Probate and Administration Act, 1903, (Act 8 of 1903).

(4) The Period of reform

2.29. The amendments made from time to time in the Indian Succession Act of 1925 can be said to represent the period of reforms. This reform has been rather slow in its pace and therefore not perceptible. This slow pace is, in part, due to the fact that the law of intestate succession applicable to the two important communities in India-Hindus and Muslims-falls outside the ambit of the Indian Succession Act.

The slow pace of reform is, in part, also due to the fact that the practice of executing Wills (a topic which forms the bulk of the subject-matter of the Act), has only recently become widely prevalent in the Mofussil. However, to some extent, the slow pace of reform must also be attributed to the fact that no systematic attempt at a review of the Act in all its aspects has been undertaken since 1925.

Such amendments as have been effected in the Act were due to some urgently felt need to deal with a particular problem or demand for reform that could not be postponed for a long time. This is understandable, because matters falling within the lawyer's law generally do not find priority on the legislative agenda.

The Indian Succession Act, 1925 Back

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