PARSI SUCCESSION LAW

I. Definition

The 4th section of the Indian Succession Act 1925 which applies to Parsis has introduced a very important change in the law in the case of persons to whom hitherto the English law was applicable. It gets rid of the principle, so far as property is concerned that husband and wife are one person in Law, or it - provides that after the 1st day of January 1866 no person shall, by marriage, acquire any interest in the property of the person whom he or she marries, nor become incapable of doing any act in respect of his or her own property, which he or she could have done if unmarried.

Origin And Growth Of Succession Act

The Common Law of England, which hitherto applied to Parsis in the Presidency Towns, merged the wife in the husband and declared her absolutely incapable, during covertures, of contracting, holding and disposing of property. By virtue of the English Common Law relating to husband and wife, the wife can exercise no independent disposing control, during her husband's lifetime, over any property whatever, not even over that which comes to her, or is given to her, from or by her own family.

During covertures a married woman could acquire no legal right to personal property. Immediately upon her marriage, the contracts between the husband and the wife came to an end, and goods, chattels and effects in possession belonging to the wife at the time of her marriage became the absolute property of the husband by virtue of the marriage.

The wife's personal articles in possession belonging to her at the time of her marriage and not settled to her separate use vested absolutely in the husband, except her paraphernalia.

The paraphernalia of the wife include such apparel and ornaments given to the wife as are suitable to her condition in life, and as are expressly given to be worn as ornaments of her person only, e. g , rings, watches and other jewels given to the wife by her husband to be worn merely as ornaments. The wife cannot dispose of her paraphernalia during her husband's life-time; but the husband can dispose of it by sale or gift inter vivo, though not by will, and on his death subject to payment of his debts, the wife is absolutely entitled to it. The fact of the husband's great control over, and interest in his wife's property at law, gave rise in Equity to the “doctrine of separate estate," that is ownership of property by a married woman apart from her husband for her exclusive use. Such property is free from the debts and control of her husband; and unless restrained by stipulation she may alone alienate it by deed or will, or charge it with her debts.

Closely allied to separate property & pin-money, which may be defined as a yearly allowance settled upon the wife before marriage for the purchase of clothes and ornaments, or otherwise for her separate expenditure, and in order to decorate her person suitably to the rank and agreeably to the tastes of her husband. It is allowed to her in order to save the constant recurrence by the wife to the husband for trifling expenses.

As regards the wife chooses for an action (i. e., things which are enforceable by her only by suit) e. g., debts, legacies etc., they did not become the husband's unturned reduced them into possession; consequently if he failed so to reduce them, they survived to the wife, and if she died before and he had reduced them into possession they formed part of her estate and became his property subject to payment of her debts. Resting on the doctrine of unity of persons between husband and wife, the husband, as to her chattels real, became possessed of them by marriage in her right. Not only was he entitled to their rents and profits, but he might also dispose of them as he pleased during coverture. They were liable for his debts; and if he survived her, they were absolutely his. He could not, however, devise them by will and if he failed to dispose of them in his life-time, and in case he died before his wife, she became entitled to them absolutely.

By the 4th section of the Succession Act (which applies to Parsis) a woman married after the 1st day of January 1866 will hold all her property as fete covert in England holds property settled to her separate use. Among Parsis a gift may be made to the separate use of a married woman, or of a woman about to be married.

The 4th section of the Indian Succession Act sweeps away the husband's right to his wife's personality, his interest in her realty as tenant by the courtesy, and the wife's right to her husband's land as tenant by dower; and as to her property the section has the effect of a settlement of it to her own use without restraint on anticipation. This section abolishes the unity of persons between husband and wife; consequently when an estate is conveyed or devised during covertures to husband and wife, they will take as joint-tenants with equal undivided shares, and each can alienate his or her own property in his or her lifetime. At Common Law in such a case they would take by entireties, and the husband may do what he likes with the rents and profits during coverture.

Further, the husband is no longer able, by his endorsement alone, to pass his wife's negotiable instruments, nor can he release or assign her chooses-inaction.13 This section has altogether done away with the Common Law rule that where a man marries his creditor the debt is thereby released.

The 4th section does not affect the right to make a settlement nor the usual effect thereof. It does not apply to marriages contracted before the 1st day of January 1866. It is prospective, and does not affect rights which had already been acquired before the passing of the Act.14 Since the 4th section of the Succession Act (which applies to Parsis) is prospective and does not affect rights which had already been acquired before the 1st day of January 1866, it is evident that if a female Parsi who was married before 1st January 1866, dies leaving property, that property would not go to her heirs as on an intestacy, or to the persons named in her will, but will be governed by the English law. 

At Common Law a wife's will was void as to lands, and as to chattels she had no testamentary power, unless the husband was banished or transported, or unless the will was restricted to property of which she was executrix or administratrix, or unless it was made with her husband's special permission. But equity holds a wife's will valid as an execution of a power, or in pursuance of an agreement, or as disposition of her separate estate. In fact the will of such a Parsi female would be valid only so far as it relates to the disposition of her separate estate, or if her husband gave his consent to the will, or if she survived him. ornaments purchased for his wife by his deceased father, as they are the separate property of his wife.15 In England the position as to wife's property at Common Law was to some extent altered by the Married Woman's Property Act 1870.16 In India the Married Woman's Property Act III of 1874 declares provisions similar to those declared by Statute 33 & 34, Viet. C. 93.

The 4th section of the Indian Succession Act did not remove the disability of married women to contract; this was removed by the Married Woman's Property Act III of 1874.17 Section 4 of Act III of 1874 enacts that the wages and earnings of a married woman after the passing of the Act shall be deemed to be her separate property, and her receipts alone shall be good discharges. I.S.A. provides that she may affect a policy of insurance on her own behalf and independently of her husband. It empowers her to sue in her own name for recovery of any property which by force of the Indian Succession Act or the Act itself was her separate property.

Another provision makes the wife (whether married before or after the 1st January* 1866) liable to be sued to the extent of her separate property by any one contracting with her as to such property. Both the provisions provides for the remedies of a married woman, who is within the 4th section, for injuries to her property.18 The object of the Legislature in passing Act X of 1865 and Act III of 1874 was to assimilate the position of a married woman to that of an unmarried one, so far as regards her dealings with her own property.

Section 4 of the former Act combined with section 7 of the latter Act enables women, married since 1st of January 1866, to possess and sue and be sued in respect of such property as though they were unmarried. These sections do not, however, deal with their capacity to contract. Section 8 of the latter Act deals with that capacity, and applies to women married as well before as after the 1st of January. 1866, and provides that such women can contract as though they were unmarried at the date of the contract, but that on such contracts they will be liable only to the extent of their separate estate.19 Under this provision a married woman has power to charge property settled upon herself, for her separate use without power of anticipation, with the payment of debts incurred by her subsequently to her marriage, and such a charge is valid and binding. The husband, however, stands responsible for debts contracted by his wife's agency.

Lastly, there is provision which relieves the husband married after 31st December 1865 from his wife's ante nuptial debts. At Common Law the husband stood liable jointly with his wife for her debts contracted before marriage. The wife's separate property is now held liable for her own contracts.

Thus the Indian Succession Act, 1925 regulates testamentary succession to Parsis domiciled in India.

Domicile

Part II of the Indian Succession Act which applies to Parsis treats of domicile. Succession to a deceased person's immovable property in British India was regulated by the law of British India wherever he may have had his domicile at the time of his death; and succession to his movable property is regulated by the law of the country in which he had his domicile at the time of his death. “Immovable property” includes land, incorporeal tenements, and things attached to the earth, or permanently fastened to anything which is attached to the earth. “Movable property” means property of every description except immovable property.

A person can only have one domicile for the purpose of succession of his movable property. The domicile of origin of every person of legitimate birth is in the country in which, at the time of his birth, his father was domiciled: or if he is a posthumous child, in the country in which his father was domiciled at the time of the father's death. The domicile of origin of an illegitimate child is in the country in which, at the time of his birth, his mother was domiciled.

Domicile is the legal conception of residence of which there are three kinds:

(1) Domicile by birth, or of origin. As no man can be without a domicile the law attributes to every individual as soon as he is born, the domicile of his father, if the child is legitimate; and the domicile of his mother, if the child is illegitimate. This is called the domicile of origin and is involuntary.

(2) Domicile by operation of law. This sort of domicile attaches to those

(a) who are under the control of another, e.g., wife, minor and servant, and

(b) on whom the state affixes domicile, e. g., officer, prisoner.

(3) Domicile of choice. This is where one is abandoned and another is acquired. The domicile of origin prevails until a new domicile has been acquired. A man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin. No man acquires a domicile in British India merely by residing in H. M.'s Civil or Military service, or in the exercise of any profession or calico, or in the discharge of the duties of any public office. The special mode of acquiring a domicile in British India is treated of in the Succession Act, which provides that any person may acquire a domicile in British India by making and depositing in some office in British India (to be fixed by the Local Government) a declaration in writing under his hand of his desire to acquire such domicile, provided that he shall have been resident in British India for one year immediately preceding the time of his making such declaration. A new domicile continues until the former domicile has been resumed, or another has been acquired. The domicile of a minor follows the domicile of the parent from whom he derived his domicile of origin. During minority he cannot acquire a new domicile. His domicile however does not change with that of his parent, if the minor is married, or holds any office or employment in the service of Her Majesty, or has set up, with the consent of the parent, in any distinct business.

"Minor" means any person who shall not have completed the age of eighteen years, and "Minority" means the status of such person.

The age of majority of persons domiciled in British India is provided for as follows by the 3rd section of the Indian Majority Act, IX of 1875: “Every minor of whose person or property, or both, a guardian, other than a guardian for a suit within the meaning of Chapter XXXI of the Code of Civil Procedure, has been or shall be appointed or declared by any Court of Justice before the minor has attained the age of eighteen years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age, shall, notwithstanding anything contained in the Indian Succession Act, X of 1865, or in any other enactment, be deemed to have attained his majority when he shall have completed his age of twenty-one years, and not before ; and every other person domiciled in British India shall be deemed to have attained his majority while he shall have completed his age of eighteen years, and not before”.

By marriage a woman acquires the domicile of her husband, if she had not the same domicile before. The wife's domicile daring marriage follows her husband's, except when they are separated by sentence of a competent Court, or when the husband is undergoing a sentence of transportation. An insane person cannot acquire a new domicile in any other way than by his domicile following that of another person.

If a man dies leaving movable property in British India, in the absence of proof of any domicile elsewhere, succession to the property is regulated by the law of British India.

The Indian Succession Act provides that in the case of the marriage of a person not having a British Indian domicile to a person having such domicile, neither party acquires by the marriage any rights in respect of the other's property not comprised in an ante-nuptial settlement which he or she would not acquire thereby if both were domiciled in British India at the time of the marriage.

The meaning is this: where either of the parties has an Indian domicile, all his or her rights, as regards the other's property, whether movable or immovable, are regulated by the territorial law of India.21 In the above case it was held that section 4 of the Indian Succession Act does not apply in respect of the movable property of persons not having an Indian domicile and that while the 4th section lays down a general rule as to the effect of marriage in respect of movable property where both the married persons have an Indian domicile, the 44th section of the Indian Succession Act lays down a special rule to govern a particular case.

In a case22, however, Sale J. held that, since in the case of Miller v. Administrator General the applicability of the sections 4 and 44 was considered in connection with the question of domicile, but the particular question whether these sections in any way affect the rights of succession was not dealt with as necessarily arising in the case, these sections read together should be understood as laying down a general rule as to the immediate effect of marriage in respect of movable property belonging to each or either of the married persons not comprised in an ante-nuptial settlement, and not as laying down a rule intended to affect the law of succession.

Distribution of properties of Parsi person as per succession laws - if No Will

The Following points has to be considered while distributing the property of a Parsi died without a will:

1. Whoever actually born in the lifetime of the deceased Parsi person or at the date of his death only conceived in the womb and subsequently born alive, is considered.

2. If a lineal descendant i.e a child or remoter issue dies before the deceased Parsi without leaving widow or widower or lineal descendant or widow or widower of lineal descendant, the share of such child shall not be taken into consideration.

3. Where a widow or widower of any relative marrying again during the lifetime of the intestate Parsi, such widow or widower is not entitled to receive any share in the property of the deceased Parsi. General Rules for Division of the property of a Parsi died without a will among widow, widower, children and parents :

1. Widow & Children : Each of them receive equal shares.

2. No widow & children: Equally among children.

3. Parents in addition to widow or widower and children : Father’s share is equal to half the share of the son and the mother’s share is equal to half the share of the daughter. If one of the parents survives, he or she gets the same share.

* Some important points to be noted:

a. The parents get the share only when the son dies without the will and not in the case of the daughter.

b. Parents does not include stepfather & stepmother.

c. Sons and daughters include both full blood & half blood.

A) Rules for Division of share of predeceased child of Parsi intestate leaving lineal descendants:

1. If the deceased child is a son : His widow & children shall take the shares as per the above general rules as if he had died immediately after his deceased father. Provided that where such deceased son has left a widow or a widow of a lineal descendant but no lineal descendant, the residue of his share after such distribution has been made shall be divided in accordance with the above rules as property of which the intestate has died intestate, and in making the division of such residue the said deceased son of the intestate shall not be taken into account.

2. If the deceased child is a daughter : Her share shall be equally divided among her children.

3. If any child of such deceased child has also died during the lifetime of the Parsi intestate, his share will be divided in accordance with the above general rules.

4. If the remoter lineal descendants of the intestate has died during the lifetime of the Parsi intestate, his or her widow and / or children will take the share of their predeceased parent.

B) Rules for Division of property where Parsi intestate leaves no lineal descendant but leaves widow or widower or a widow or widower of any lineal descendants:

1. Widow or Widower but no widow or widower of a lineal descendant :

Widow or Widower Relatives

2. Widow or Widower and also widow or widower of a lineal descendant :

Widow or Widower Widow of lineal descendant Relatives

3. No Widow or Widower but widow / (s)of a lineal descendant :

i) On e widow of lineal descendant Relatives

ii) More than one widow of lineal descendants Relatives

4. Relative Share distribution : The share will be distributed in the following order and the next-of-kin standing first will be preferred to those standing second and second to third and soon.

i)Father and mother.

ii) Brothers and sisters (other than half brothers and sisters) and lineal descendants of such of them as shall have predeceased the intestate.

iii) Paternal grandparents.

iv) Children of paternal grandparents and the lineal descendants of such of them as have predeceased the intestate.

v) Paternal grandparents' parents.

vi) Paternal grandparents' parents' children and the lineal descendants of such of them as have predeceased the intestate.

vii) Maternal grandparents and their lineal descendant and their children.

viii) Half brothers and sisters and the lineal descendants of such of them as have predeceased the intestate.

ix) Widows of brothers or half brothers and widowers of sisters or half sisters.

x) Paternal or maternal grandparents' children's widows or widowers.

xi) Widows or widowers of deceased lineal descendants of the intestate who have not married again before death of the intestate.

C) Where there is no relative as specified above, the property of the Parsi who has died intestate shall be divided equally among those of the intestate's relatives who are in the nearest degree of kindred to him.

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AS- 19122019