Tapuriah Jain & Associates

LAW OF INHERITANCE FOR CHRISTIANS

Every law of succession defines the rules of distribution of property in case a person dies without making a will. The Christian Law of Succession is governed by the provisions in the Indian Succession Act, 1925.

However, with respect to Indian Christians, the diversity in inheritance laws is greatly intensified by making domicile a criterion for determining the application of laws. Till January 1986, Christians in the State of Kerala were governed by two different Acts - those domiciled in Cochin were subject to the application of the Cochin Christian Succession Act, 1921, while the Travancore Christians were governed by the Travancore Christian Succession Act, 1916.

These two Acts have now been repealed and the Christians following these laws earlier are now governed by the general scheme of inheritance under the Indian Succession Act, 1925.

However, Protestant and Tamil Christians, for example, living in certain taluks, are still governed by their respective customary laws. Christians in the State of Goa and the Union Territories of Daman and Diu are governed by the Portuguese Civil Code, 1867, while those in Pondicherry could be governed by the French Civil Code, 1804 (such Christians are known as “Renocants”), customary Hindu law, or the Indian Succession Act.

Despite these variances, the overall law for Indian Christians in effect is the Indian Succession Act of 1925, which will be dealt with in this project. It has been deemed “somewhat archaic and anachronistic” by certain legal experts, but it continues to be the only firm law in this regard. This Act recognises three types of heirs for Christians: the spouse, the lineal descendants, and the kindred.

The Laws governing Inheritance among the Christians in India have been discussed in this article. The Indian Succession Act, 1925 provides for the inheritance laws for all other religions, including Christians.

Christians have varied laws on succession and familial relations. The rules for succession among the Christians has been codified under the Indian Succession Act, 1925, while on the other hand customary practices also have an influence on the principles of inheritance.

The British Indian Government enacted the Indian Succession Act, 1865 which was to apply in the case of Christians. This Act was later replaced by the Indian Succession Act, 1925 (hereinafter referred to as “ISA”), which currently governs the inheritance in case of Christians. Certain customary practices also influence the principles of inheritance in case of Christians and have also been considered by the courts in India.

Basic Principles Of The Christian Law Of Succession

The Indian Succession Act, 1925

S. 2(d) of the Act defines an “Indian Christian” hereby: “Indian Christian” means a native of India who is, or in good faith claims to be, of unmixed Asiatic descent and who professes any form of the Christian religion.

The religion of the deceased determines the succession to his estate. For example, succession among Hindus is governed by the Hindu Succession Act, 1956. As such, Christians in general are governed by the Indian Succession Act of 1925 for succession purposes.

This was further clarified in the case of Abraham v. Abraham where the scope of this definition of an ‘Indian Christian’ was delineated with regard to its actual working. This case laid down that a Hindu who has converted to Christianity shall not be governed by Hindu law (customary or otherwise) anymore, and any continuing obligatory force that the Hindu law may have exercised upon him stands renounced. However, he was clearly given the option to permit the old law to continue to have an effect on him, despite having converted out of the old religion into the new one.

In 1865, the original Indian Succession Act was passed and a new question arose as to whether, even under the provisions of this new Act, the convert could elect to be governed by the old law. In the case of Kamawati v. Digbijoy thereafter it was held by the Privy Council that the old law ceases to be applicable with regard to inheritance i.e. succession.

Thereafter in a recent 2001 judgement, the Allahabad High Court reiterated that Hindu converts to Christianity will be bound solely by the succession laws governing Christians, inclusive of the Indian Succession Act, 1925, and it will not be possible for them to elect to be governed by the old law in this or related matters.

Will, however, the incidents of the joint family (in the case of those converting out of the Hindu religion) continue to apply? The Courts in this regard have not been able to reach a uniform conclusion. In the case of Francis v. Gabri the Bombay High Court held that if a family were to convert out of Hinduism into Christianity, the coparcenary rights of that family would remain untouched. But the Madras High Court held in the case of Francis v. Tellis that the effect of conversion out of Hinduism would be to render all coparcenary rights thenceforth individual rights. In this case, out of two brothers, one of them converted to Christianity. It was held that upon his death it would not be possible for the other brother to succeed to the entire estate by way of the doctrine of survivor ship.

Estate

All property owned by an individual, irrespective of the mode of acquisition, the) mode of acquisition is treated as the individuals’ self-acquired property and is free to dispose-off the same in any manner during his lifetime. In case the property has not been disposed-off by way of will, then the same shall devolve upon his / her successors and heirs upon his death. Properties or money given by the interstate to a child for his / her advancement in the life would not be considered at the time of distribution of the intestate’s wealth / property.

Intestate Succession Among Indian Christians

S. 30 of the Indian Succession Act, 1925 defines intestate succession thus: A person is deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect. Thus any property which has not already been bequeathed or allocated as per legal process, will, upon the death of the owner, insofar as he is an Indian Christian, devolve as per the rules contained in Chapter II of the Act. It would be worthwhile to note at this point that intestacy is either total or partial. There is a total intestacy where the deceased does not effectively dispose of any beneficial interest in any of his property by will. There is a partial intestacy where the deceased effectively disposes of some, but not all, of the beneficial interest in his property by will.

Domicile

The Domicile of the deceased plays an integral role in determining the method of devolution of his property. Halsbury defined ‘domicile’ thus: “A person’s domicile is that country in which he either has or is deemed by law to have his permanent home.” S.5 of the Act categorically states that succession to the movable property of the deceased will be governed by the lex loci as per where he had his domicile at the time of his death; whereas succession to his immovable property will be governed by the law of India (lex loci rei sital), no matter where he was domiciled at the time of his death. Also, S. 6 further qualifies this provision by stating that a person can have only one domicile for the purpose of succession to his movable property. It must be noted that domicile and nationality differ from each other – domicile deals with immediate residence, whereas nationality implies the original allegiance borne by the person. S. 15 lays down that upon and during subsistence of marriage, the wife acquires the domicile of her husband automatically.

Kindred Or Consanguinity

S. 24 of the Act makes an initial reference to the concept of kindred and consanguinity, defining it as “the connection or relation of persons descended from the same stock or common ancestor.” S. 25 qualifies ‘lineal consanguinity’ with regard to descent in a direct line. Under this head fall those relations who are descendants from one another or both from the same common ancestor. Now, succession can be either ‘per capita’ (one share to each heir, when they are all of the same degree of relationship) or ‘per stirpes’ (division according to branches when degrees of relationship are discrete). For Christians, if one were to claim through a relative who was of the same degree as the nearest kindred to the deceased, one would be deemed to stand in the shoes of such relative and claim ‘per stirpes.’

S. 26 qualifies ‘collateral consanguinity’ as occurring when persons are descended from the same stock or common ancestor, but not in a direct line (for example, two brothers). It is interesting to note that the law for Christians does not make any distinction between relations through the father or the mother. If the relations from the paternal and maternal sides are equally related to the intestate, they are all entitled to succeed and will take equal share among themselves. Also, no distinction is made between full-blood/half-blood/uterine relations; and a posthumous child is treated as a child who was present when the intestate died, so long as the child has been born alive and was in the womb when the intestate died.

Christian law does not recognise children born out of wedlock; it only deals with legitimate marriages. Furthermore it does not recognise polygamous marriages either. However, a decision has been made to the effect that it does recognise adoption and an adopted child is deemed to have all the rights of a child natural-born, although the law does not expressly say so.

The law of intestate succession under S. 32 states that: The property of an intestate devolves upon the wife or husband or upon those who are of the kindred of the deceased, in the order and according to the rules hereinafter contained in this Chapter. However, as aforementioned, the Act recognises three types of heirs for Christians: the spouse, the lineal descendants, and the kindred. These shall be dealt with now.

Rights Of The Widow And Widower

S. 33, S. 33-A, S. 34 of the Act govern succession to the widow. Together they lay down that if the deceased has left behind both a widow and lineal descendants, she will get one-third share in his estate while the remaining two-thirds will go to the latter. If no lineal descendants have been left but other kindred are alive, one-half of the estate passes to the widow and the rest to the kindred. And if no kindred are left either, the whole of the estate shall belong to his widow. Where, however, the intestate has left a widow but no lineal descendants, and the net value of his property does not exceed five thousand rupees, the whole of the property will go to the widow – but this provision does not apply to Indian Christians.

S. 35 lays down the rights of the widower of the deceased. It says quite simply that he shall have the same rights in respect of her property as she would in the event that he predeceased her (intestate).

Descendants & Rules of Inheritance

The laws of inheritance applicable to Christians are same for both genders. The property of a person dying intestate is bequeathed to the spouse of the deceased , or upon those who are kindred of the person deceased. Chapter II of the ISA provides for the order and the concerned rules for the devolution of the estate and the share to be allotted to the heirs. The ISA provides that a widow is not entitled to the property if by a valid contract made before the marriage she has been explicitly excluded from the distributive share of her husband’s estate.

The term ‘lineal descendants’, as described under the ISA, includes children or children’s children and only those born out of a lawful marriage, thereby excluding relations such as daughter’s illegitimate son or a son’s illegitimate daughter or any other illegitimate issue as such illegitimate children are not considered children by the provisions of ISA. If an intestate has left a widow and also lineal descendants, 1/3rd of the estate shall devolve upon the widow and the remaining 2/3rd shall go to the lineal descendants. If the intestate has left behind a widow and does not have any lineal descendants, but has left behind persons who are kindred to him, the property would be divided into halves, one would divulge to the widow of the intestate and the other half would divulge to the kindred. However, in case the intestate has left no kindred, the whole property would be inherited by the widow.

In cases where an intestate has no child, but only has grandchildren and no other remote descendent, the property shall go equally to the all the grandchildren. A husband is not entitled to inherit the property of the divorced wife and in case of judicial separation, the property of the wife would devolve upon her legal heirs as if the husband is already divorced. Also, a daughter-in-law has no right of succession to the estate of her intestate father-in-law. Moreover in case of a Christian daughter, there exist no pre-existing right in the family property and her right generally arises when her parents die intestate.

With regard to the legitimate descendants and legitimate and illegitimate children, the Kerala High Court in the case of Jane Antony, Wife of Antony v. V.M. Siyath, Vellooparambil specifically opined that all illegitimate children, though born out of the wedlock, are children born out to the man and woman who cohabited for some time and are in substance husband and wife for all purposes. Therefore, the court showed no hesitation in declaring the children as legitimate and entitled to succeed to the deceased’s estate.

It is well settled in Christianity that the heirs’ religion is immaterial and the only material fact is that the deceased should have belonged to the Christian religion on the date of death. The rights granted to the biological child are not recognised for the adopted child.

Catholic Priests and Inheritance

The Indian courts in several cases pertaining to inheritance for Catholic Priests have held that the right to inherit a distributive share is not extinguished either by usage or existing personal laws.

The Madras High Court adjudged in a dispute regarding inheritance that the provisions of the ISA relating to Christians are also applicable in the case of inheritance of property of a Priest and is allowed only to the natural heirs of the deceased and not to superiors of the priest.

Catholic Nuns and Inheritance

With regard to the rules for succession in the case of the Catholic Nuns also, there have been different views taken by the Karnataka High Court and the Kerala High Court.

The Karnataka High Court has opined that a nun is entitled to a distributive share in the property of her natural family in case on intestate succession. However, the Kerala High Court has stated that where a nun ceases to have any connection with her natural family after entering the Church, the legal effect is that she is not considered to have a father, a mother or a family and is thus not entitled to a share in the estate of her natural family.

Therefore, the views taken by the two High Courts are diametrically opposed as regards the status of a nun for inheritance.

Escheat

The principal of Escheat is applicable to the Christian laws of inheritance to effect that in case of absence of any lineal descendants and kindred to the deceased, the property shall devolve upon the Government.

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AS- 20122019