Report No. 247
Developments leading to enactment of Indian Succession Act, 1925
Succession laws in India had their origin in religion. Thus we find that in the late 19th century, succession was determined on the basis of customary practices and religious laws. There were, therefore, specific rules within the scheme of religious laws and texts for the devolution of proprietary rights for Hindus and Muslims. While these rules were ambiguous due to conflicting interpretations of religious texts, regional variations in practice, and synergetic influences of cultural commixture, the fact still remained that there were specific criteria on the basis of which devolution and succession could be governed.
However, considerable uncertainty prevailed in the period before 1865 about the law applicable in case of 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. But the position was 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 Moffusil was not very clear.
It is this prevalence of obscurity that was in fact, referred to by Sir Henry Maine, while introducing the Bill that led to the Succession Act of 1865. The law defining the rights and obligations of non-Hindus and non-Muslims was thus in extremely confused position. In the Presidency towns, the English Law was applied to members of just mentioned communities. 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.
The First Law Commission in 1835, thus recommended that the English Law should be declared to be the law applicable to such persons - a recommendation that was not accepted. The Second Law Commission of 1853 did not favour introduction of English Law, but it viewed it desirable to assimilate law as was prevailing throughout the country.
However, the Third Law Commission submitted draft of the Indian Succession Act, 1865. Finally, came the Act of 1865. The Act, dealt with succession, both testamentary and intestate. The Act exempted Hindus and Muslims from its scope, but the utility of the Act lay in the codification of law of succession as regards other persons.
The Indian Succession Act, 1865 that was based on English law and was declared to constitute, subject to certain exceptions, the law of British India applicable to all classes of intestate and testamentary succession but the exceptions were so wide as to exclude all natives of India. A very important change was made by the Hindu Wills Act, 1870 (Act 21 of 1870), which inter alia enacted that certain portions of Indian Succession Act should apply to all Wills and codicils made by any Hindu on or after 1st day of September, 1870.
The Probate and Administration Act 5 of 1881 was applied to Hindus and Muhammadans. [On the coming into force of the Hindu Succession Act, 1956, succession to property of a Hindu is governed by its provisions except to the extent excluded by Section 5 therein. Clause (1) of Section 5 relates to succession to property of Hindus whose marriage is solemnised under the Special Marriage Act, 1954, and to the property of the issue of such marriage.
Clauses (ii) and (iii) of the Section relate to impartible property held by the persons specified therein. Succession to the properties of all such persons is regulated by the Indian Succession Act, 1925.] The British Parliament felt that in the face of such vast scatteredness and multiplicity as described above there was need for consolidation of law. And thus mainly responding to this need that the British legislatives enacted Indian Succession Act, 1925, - primarily a consolidating Act.