Report No. 247
Suggestions & Recommendations. The report has mainly focused around provisions contained in Sections 41 to 49 and examined as to whether these provisions are just and fair towards women or these are discriminatory against them? If discriminatory - what reforms could be suggested.
Section 41 provides that rules of distribution where the intestate has left no lineal descendants shall be contained in Sections 42 to 48, "after deducting the widow's share if he has left a widow." A simple reading of provisions built in Sections 42 to 46 would reveal how the scheme envisioned therein is unfair and unjust. According to Section 42, where deceased intestate father is living and there are no lineal descendants, father succeeds to property and mother gets no share. Preferential approach is writ large.
Further, even in case where the deceased intestate's father does not survive, provisions of Section 43 requires mother to equally share with brothers or sisters of the intestate, rather being entitled to what her husband (i.e. deceased intestate's father) was entitled to many calling such provisions 'unfair'. Unfairness runs through provisions of Sections 44 and 45 as well, and it is only when neither father, brother, sister or their children of the deceased intestate are living that the property goes to the mother under Section 46 - a situation to a great extent created by forces of divine circumstances.
The Law Commission in its earlier report (110th) - "Indian Succession Act, 1925" reflecting on these provisions have thus noted: "This is not in conformity with the current thinking as to status of women. The law is in need of reform on this point". With this background in view the Commission believes that the need to reform is not only timely but becomes more glaring when one looks around and finds that in many other jurisdictions the law on the point is more sensitive and egalitarian. Say for example in England law is different.
There under provisions of Section 46 of the Administration of Estates Act, 1925 even where brothers and sisters of the intestate are alive, the father and mother take the property. And more relevant in our context is to note that they share equally, and if only one of them survives he or she takes the whole.
Foregoing leads us to conclude that the law envisioned under Sections 41 to 49 deserve change so as to protect interest of Christian women, especially in case of mother of deceased intestate. It is suggested that provisions of Section 42 which weaves an archaic principle of giving superior status to man in access and owning property needs to be revised. One of the recommendations thus made in this report is to amend provisions of Section 42 so as to ensure that deceased intestate (leaving apart the half for the deceased's widow if living) succeed the property in equal.
Such change would constitute a positive step in ensuring that the law is fair and just towards Christian women. Accordingly this would lead to revisiting provisions of Section 43 so as to ensure that where either of the parents (father or mother) of the deceased intestate is living, he or she as the case may be, shall succeed the property even if deceased's brothers and sisters as envisioned in existing provisions of Section 43 are surviving. (Position in this regard has further been clarified in the chart to follow that epicts both the existing provisions and amended ones).
Such change is in conformity with our rejection of the approach in existing provisions not only in Section 43 that does not treat mother of the deceased intestate as having status equal to the father but running all through provisions of Sections 44, 45 and 46 as well. Accordingly, in our approach provisions incorporated in Sections 44, 45 and 46 too have been revisited and revised, as could be seen from the chart given below. Coming to Sections 47 and 48 we reiterate what has earlier been recommended by the Law Commission in its 110th report.
As regards Section 47 it was noted there that provisions of this Section does not apply until there is at least one brother or sister alive and same be clarified by adding, after the words "nor mother" as appearing in the text of this Section, the words "but has left a brother or a sister". The position clarifying this has been shown in the chart. Section 48 incorporates distribution per capita approach where there are no brothers or sisters, but only children of brothers and sisters.
It has been rightly pointed out that distribution per capita may be satisfactory as a general rule, but even unjust in case of children of brothers and sisters and, therefore, it be amended 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 decedents. The revised position has been epicted in the chart.
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