A Comparative Study of The General Provi PDF

IRJMSH Vol 6 Issue 10 [Year 2015] ISSN 2277 – 9809 (0nline) 2348–9359 (Print)
A Comparative Study of the General Provision of Indian Succession Act,

1925 and The Hindu Succession Act of, 1956
Jasvir
Ph.D. Scholar
Faculty of Law
M.D. University
Rohtak
1. INTRODUCTION
Intestacy is of two kinds – total or partial. A man may die partly intestate and partly testate, e.g.
where the will contains several bequests to several legatees, but there is no disposition of the
residue, he dies intestate as regards the residue. The word intestate is defined in sec 55 of the
Administration of Estate Act
‗Intestate includes a person who leaves a will but dies intestate as to some beneficial interest in
his real or personal estate.‘
A man is considered to die intestate in respect of all property of which
1. He has not made a testamentary disposition, e.g. when he has left no will, or
2. He has made a will but the will is not capable of taking affect, e.g. when he has
bequeathed his whole property for an illegal purpose or if the subject of the bequest is not
existing.
E.g. A has left no will. He has died intestate in respect of the whole of his property. A, has
bequeathed his whole property for an illegal propose. A has died intestate in respect of the
distribution of his property.
Contemporary India is a multicultural society that is pluralistic with regards to religious law.
Different groups in India have separate religious personal laws. India‘s legal system is a common
law system, a relic of British imperialism that is at the same time very different from the original
British common law
The general law relating to the inheritance and succession can easily be referred to The Indian
Succession Act, 1925. Under this Act every Indian is entitled to equal shares on inheriting the
property on the death of a person. The exceptions are Hindus, Sikhs, Jains, Buddhists and
International Research Journal of Management Sociology & Humanity ( IRJMSH ) Page 102
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Muslims as they are governed under separate laws of succession. As for the persons of different
faiths than Hinduism and Mohammedan, the Indian Succession Act, 1925 applies.
We can easily segregate the laws of non-testamentary or intestate succession and inheritance as
would be applicable to Hindus, Sikhs, Jains and Buddhist and with Parsis, Christians and Jews
with that of Muslims and with persons of inter faith marriages. Laws of succession applicable to
Hindus, Sikhs, Jains and Buddhist; for the non-testamentary or intestate succession/inheritance,
the governing law is the Hindu Succession Act, 1956. Laws of succession applicable to Parsis;
for the intestate succession the governing law is the Indian Succession Act, 1925 specifically
under section 50 to 56 of the Indian Succession Act, 1925. Laws of succession applicable to
Christians and Jews; for the intestate the governing law is the Indian Succession Act, 1925
specifically under section 31 to 49 of the Act.
Laws of succession governing Muslims; for non-testamentary succession the The Muslim
Personal Law (Shariat) Application Act, 1937 is applicable and where a muslim has died testate,
the issue has to be governed under the Indian Succession Act, 1925 where a Will relates to
immovable property situate within the State of West Bengal, and that of Madras and Mumbai
Jurisdiction. Laws of succession in case of inter faith marriages, under Special Marriage Act,
1954.
This paper is a comparative study of the general provisions of two major enactments on intestate
succession in India, one of general The Indian Succession Act(hereinafter referred infra as ISA) ,
1925 and the other specifically for the Hindus, The Hindu Succession Act, (hereinafter referred
infra as HSA), 1956.
2. HISTORY AND SOURCE OF THE STATUTES

When the British settled to govern India, they found that there was no ascertainable law in the
matter of succession for communities other than Hindus and Muslims. This vacuum came to be
noticed as a result of the decision of the Privy Council to the effect that a Hindu renouncing his
religion and becoming a convert to Christianity could still choose to be governed by the Hindu
Law in matters of succession.1 During colonization, novel ideas of utilitarianism and legal
positivism informed many English innovations in India. The usual organic relationship between
a legal system and its society was violently disrupted doubly by this experiment. Indians came to
have a legal system developed in response to the needs of a very different society, that of
England. But whereas laws in England have abandoned or modified most of these legal concepts,
India maintains the ―tradition‖ of the colonial laws. The concept of religious personal laws is one
of those ideas.2
1
Abraham v. Abraham, (1863) 9 MIA 199.
2
Archana Parashar,Women and Family Law Reform in India, Sage Publications,(1992) New Delhi.
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Historically, in Europe, the law made a distinction between personal (often ecclesiastical) laws
and the legal codes of the territory as a whole. In India before colonization, however, Hindus and
Muslims with very few exceptions were governed by their own respective laws. Colonization in
India happened in a complex and geographically varied manner. Different parts of the country
came under colonial control under different legal arrangements. British laws were introduced
gradually and selectively and ―personal matters‖ were to remain governed by the religious laws
of these communities. However, the content of personal laws was determined almost randomly
in the successive charters and regulations. Moreover, the substantive content of these rules was
modified in judicial and legislative actions. The judicial role in this regard was significant even if
unintentional. Gradually legislative changes were also introduced, but despite these changes the
idea has persisted that the religious personal laws are immutable. The practice of applying laws
of religious communities in personal matters was regarded as the ―saving‖ of religious laws, in
part because of the language used. Different communities in India were identified by the
religions they followed and the personal laws that the English administrators had decided to save
were also in turn understood as religious, although in practice they could be community customs
rather than scriptural rules. Thus religious laws and personal laws became interchangeable, and
in the process it was forgotten that before the arrival of the British administrators, all aspects of
the laws of Hindus and Muslims were religious. Moreover, British policies determined what
should be designated as a personal matter, and of course the final shape of the laws governing
such personal matters—whether administered by the English courts or legislated by the colonial
parliaments modified the religious laws of the people.
Keeping in view the complexity a large number laws inter alia succession were enacted. By the
passage of time the existence of a number of large and important enactments rendered the law
difficult of ascertainment and it was felt necessary to consolidate the Indian Laws relating to
succession. Accordingly Indian Succession Bill was introduced in the legislature. The Object of
this bill was to consolidate the Indian Law relating to succession. The Indian succession Bill
having been passed by the Legislature received the assent of the Governor General on 30th
September, 1925. It came on the Statute Book as THE INDIAN SUCCESSION ACT, 1925(39
of 1925)
It was to fill in the gaps that Indian Succession Act 1865 was passed. It provided inter alia for
intestate succession of the Christians of India (and also of Parsis). It 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. The Indian Succession Act 1865 was repealed and the Indian
Succession Act 1925 was enacted, consolidating various enactments in the matter of intestate and
testamentary succession. This Act inter alia reproduces the Act of 1865, the Hindu Wills Act,
The Probate and Administration Act and the Parsi intestate Succession Act and embodies to a
large extent the rules of English Law.
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Before the Hindi Succession Act, 1956, the Hindu law of succession was basically traditional
unmodified law. The two main schools Mitakshara and Dayabhaga. On coming into force of the
Hindu Succession Act 1956, the succession to the property of a Hindu is governed by its
provisions except to the extent excluded by section 5 which provides that the succession to the
property of all such Hindus whose marriage is solemnized under the Special Marriage Act 1954,
is regulated by the Indian Succession Act, 1925.
The Hindu Succession Act, 1956 is a part of the Hindu Code which includes the Hindu Marriage
Act, 1955 Hindu Adoptions and Maintenance Act, 1956 and the Hindu Minority and
Guardianship Act, 1956. These Acts brought revolutionary changes in the law relating to Hindus.
It codified the law relating to marriage, succession, adoption etc.
3. STATEMENT OF OBJECT & REASONS

The Preamble of a statute is a ―a key to the understanding of it‖ and it may legitimately be
consulted to solve any ambiguity, or to fix the meaning of words which may have more than one,
or to the keep the effect of the statute within its real scope, whenever the enacting part is any of
these respects open to doubt‖.3 Preambles of both the Acts clearly brings out the difference in the
scope and objectives of the enactments.
The object Of the Indian Succession act, 1925, as stated in the Preamble of the Act is to
―consolidate the law applicable to intestate and testamentary succession‖, the Indian laws
relating to succession The separate existence on The Statute Book of a large number of laws and
important enactments renders the previous law difficult of ascertainment. The bill has been
preferred by the Statute Law Revision Committee as a purely consolidating measure. No
intentional change of law, has therefore, been made. The word ‘amend‘ does not occur in the
preamble. This is merely a consolidating statute, not an amending, one. The Statement of Objects
and Reasons set out above would clearly show that this not an amending, but is purely a
consolidating measure. It consolidates 12 enactments relating to succession.
The purpose of a consolidating statute is to present the whole body of statutory law on a subject
in complete form repealing the former statutes.4 In the case of purely consolidating statute, the
perception is that such a statute is not intended to alter the law, but this prima facie view has to
yield to plain words to the contrary.5 As pointed out its is not merely a compilation of earlier
enactments by Lord Watson,
3
Kochuni v. State, AIR 1960 SC 1080.
4
Halsbury‘s Laws of England,3rd Ed., Vol 36, p. 336.
5
Grey v. IRC (1959)3 All ER 603 at 606.
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―the object of consolidation is to collect the statutory law bearing upon a particular subject and
bring it down to date, in order it may form useful Code applicable to the circumstances existing
at the time when consolidating Act is passed..‖6
The process of consolidation involves coordination and simplification of the earlier enactments
resulting in modernization of language with a view to making it applicable to the changed
circumstances as held by the Judicial Committee in William v. Permanent Trust Co. of New
South Wales.7
The provisions of ISA are confined to intestate succession, but are also applicable cases of
testamentary succession.
On the other hand till the 19th century the Hindu law of Succession in its traditional form
remained in application in the country without any reform. The Courts in British India and in the
Indian States kept on applying and interpreting the rules of Dayabhaga and the Mitakshara
schools. The need was felt to codify the Hindu law, for which The Hindi Law Committee, was
formed to prepare Hindu Code in 1914 was revived in 1947, it was presided by Sir Benegal
Nasing Rau. After reviewing the above Bill, the Select Committee Rau Committee Bill was
introduced as Hindu Succession Bill. The code seeks to amend and codify the law relating to
intestate succession among Hindus. Apart from section 30, which confers upon a person a power
of disposing of by will or other testamentary disposition, his property including the undivided
interest in the Mitakshara coparcenary property.8
A person is free to deal with his property till he is alive. However he is also free to make a will to
lay down the scheme of distribution of his property after his death, this is known as testamentary
disposition. The law of Testamentary succession is concerned how best the effect could be given
to the wishes of the testator; what the rules and allied matters.
In contrast the law of intestate succession is concerned with matters such as ; who are the
persons entitled to take the property, i.e., who are the heirs; what are the rules of preference
among the various relations; what the manner of devolution; what are the disqualifications and
allied matters.
The law of intestate succession is more property the law of inheritance. The law of inheritance
consists of rules which determine the devolution of the property of the deceased on the heirs
solely on the basis of their relation to him.9
4. APPLICABILITY
6
Administrator General of Bengal v. Premlal Mullick, ILR 22 Cal 788 (PC).
7
[1906] AC 248 (PC).
8
Puna v Babana, (1971) 28 CIJ. 387.
9
Paras Diwan, Modern Hindu Law, Allahabad Law Agency, 19th Ed., (2008), Faridabad.
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Hindu Succession Act, 1956 is applicable to only Hindus as is clearly apparent from the
Preamble and Section 2 of the Act which includes Section 2(b) Buddhist, Jains and Sikh. Some
other communities governed by the Act are, Jati Vaishnavs, Chamaars, Adi Dravidas, Bairagis
and Gouds. Santhals, after being Hinduised,are noe subject to Hindu Laws. The Act expressly
exempts a large number of constitutionally recognized schedule tribes in various parts of India.
These tribes are governed by their distinct laws.The Act is not applicable to the Oraons, Gonds
of M.P, Hindus domiciled in the State of Jammu & Kashmir, Goa, Daman and Diu and
Renocants of Pondicherry who are governed by their distinct laws.10
The Indian Succession Act, 1925 applies to the following categories of people:11
1. European by birth or decent domiciled in India

2. Persons of mixed European and Native Blood and East Indians
3. Indian Christians
4. Jews
5. Section 50- 56 of the Indian Succession Act lays down special rules of succession in case
of Intestacy of a Parsi. Part of the Act dealing with consanguinity and intestate succession
do not apply to Parsi. As regards the provisions of testamentary succession, all the
sections apply to a Parsi.
6. The Act is also applicable to the Hindus to the extent that section 30 of the Hindu
Succession Act provides for testamentary succession. It provides that any Hindu may
dispose of by will or other testamentary disposition any property, which is capable of
being disposed of by him, in accordance with the provisions of the Indian Succession
Act, 1925.
7. Any Indian who get married or registers his marriage under The Special Marriage Act,
1954, will be governed by ISA for the matters of succession, also the Act would be
applicable to their issues. However after 1976, this rule is not applicable to two Hindus
getting married under the Special marriage Act or registering under it. They continue to
be the subject of Hindu law for matters of succession.
ISA governs succession to the property of Indian Christians and was extended to the state of
Travancore and Cochin by Part B State (laws) Act, 1951. Any succession opening after extension
of the Act is, thereof, governed by the ISA. The law applicable to converts before the passing of
the Succession Act 1865 was not in a settled condition. The question came before the Privy
Council in Abraham v. Abraham12 and their lordships expressed the following opinion:
That upon the conversion of a Hindu to Christianity, the Hindu law ceases to have any
continuing obligatory force upon the convert. He may renounce the old law by which he was
10
Poonam Pradhan saxena, Family Law Lectures-Family Law II, Lexis Nexis Butterworths, Wadhwa,2nd Ed.,
(2010), Nagpur.
12
See note 2
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bound, as he has renounced his old religion, or if he thinks fit, he may abide by the old law,
notwithstanding that he has renounced the old religion.
Since the enactment of the Act of 1865 the decision in Abraham cases lost its force and in
Degree v. Pacotti13 it was held that this Act and the rules of inheritances prescribed by it applied
to Hindus who became Christians and the evidence to show that they and the community to
which they belong retained the Hindu custom was inadmissible.
After passing of the Succession Act, no intention on the part of the Christian Converts to be
governed by the Hindu Law would be of use in determining the succession to his property and
the rule survivorship cannot be applied in consequence of any such intension imputable to him.
14
No provision in the succession Act in terms puts an end to the survivorships but the conversion
of a member of a Hindu family to a different religion destroys coparcenery just as much as
partition does. But as the rights of converts are preserved by statutory enactment, the result is
that they become co-owners, without having the rights and obligation of co-owners, in other
words, they remain as co-owners and become tenants in common. When a Hindu is converted to
Christianity and dies a Christian, the law applicable to his estate is that laid down by the Indian
Succession Act. In Kulada v. Haripada,15 it was held that if all members convert to Christianity
the incident of joint family will continue, but not if one of them converts
5. GENDER PARITY
Under Hindu Succession Act, 1956, the properties of a Hindu male dying intestate devolves, in
the first instance, equally on his sons, daughters, widow and mother and include the specified
heirs of predeceased sons or daughters. Gender inequalities in succession law proliferate
extensively. The Hindu Succession Act 1956, and the rules for Hindus governed by the
Marumakkayam and Aliyasantana laws provide different scheme for males and female intestates.
The Indian Succession Act, 1925, states that everyone is entitled to equal inheritance, barring
exceptions to Hindus, Sikhs, Jains, Buddhists and Muslims. The bias and gender deprecation is
the only factor that the Indian women and daughters are isolated and remain dependent on the
male heirs for their share and right in the seeking distribution of the property and giving rise to
differences in the families and long legal battles. Under the ISA, the father excludes the mother,
whereas under the HSA, the presence of mother excludes the father. Under the HSA, father takes
no share or the full share. This can be said to be the only gender discriminatory provision in the
ISA
One marked feature of most religious personal laws is that women have fewer rights than men.
The history of legislative reforms of religious personal laws in the independent Indian state
13
19 Bom 783.
14
Dr Sebastian, Christian Law of Succession in India, Southern Publishers, Cochin.
15
(1913) ILR40 Cal 407.
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shows that the goal of gender equality is frequently subordinated to other political
considerations. The state has selectively used the argument of religious sanctity of these laws but
at other times introduced legislative changes. Most of the changes have been introduced in the
Hindu Laws but the changes in the minority communities‘ laws have been more halting.
Ostensibly the minority status of some communities has been given priority over gender equality,
but Hindu women have also not managed to gain complete parity of rights with men. The most
recent reform, in 2005, of the Hindu Succession Act was proposed in order to make daughters
equal coparceners; however, the legislation nevertheless still leaves women with lesser rights
than men.4 It is in these particular circumstances that gender equality for Indian women is more
likely to be achieved by introducing a regime of common family law that would formulate rules
so as to recognize the principle of gender equality as the defining feature of the law.
6. CLASSIFICATION OF PROPERTY
SOURCE OF ACQUISITION
Under the Indian Succession Act the source of acquisition of the property is immaterial, while
under the Hindu Succession Act along with the character of the property, the source of
acquisition is also material for deciding upon whom it devolves on the death of the intestate.
There is different succession scheme as laid down in Section 15 (2) of the HSA, 1956 , into her
separate property i.e, any other property, property inherited from her father or husband father-in-
law in capacityof a widow or a widowed daughter-in-law.
The heirs and the order of succession for each of the three category is differ.For e.g. the property
which a female Hindu inherits from her parents, reverts back to either the father or heirs of the
father in the event of death of the female Hindu.16
KINDS OF PROPERTY
Under the Indian Succession Act the kind and the character of property is irrelevant for the
purpose of devolution of the property. On the other hand, under the Hindu Succession Act 1956
the character of the property is important feature. Under Hindu law, the property that a person
may own, or can have interest in , can be categorized into two: Separate and Joint family
property. The law relating to joint family is governed by Hindu Joint family system that is
unique to Hindus and has no parallel anywhere in the world. So whether the property is separate
property or coparcenary property is important for deciding upon whom it devolves on the death
of the intestate.17
7. RELATIONSHIP BY BLOOD
16
See Supra note 10
17
Section 6 of Hindu Succession Act, 1956.
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FULL BLOOD/ HALF BLOOD
The Indian Succession Act 1925 recognizes only blood relations. It makes no difference between
brothers and sisters of full blood, half blood and uterine blood whereas the Hindu Succession Act
prefers full blood to half blood and half blood to uterine blood.18
UTERINE BLOOD- Indian Succession Act recognizes uterine blood and puts it at equal footing
with full blood and half blood.19 whereas the HSA does not recognize uterine blood and does not
put it at an equal footing with full blood.
8. RELATIONSIP BY MARRIAGE
The diversity in matrimonial laws is closely linked to the religion of the parties. Separate
marriage laws have been provided for the various religious groups and communities inhabiting
India.
Indian Succession Act does not recognize relationship by marriage except that between a
husband and a wife.20 Under section 20 (2), prior to January 1886 when the Indian Succession
Act of 1865, came into force, the law applicable to persons, not being Hindu or Muslims,
Buddhists, Sikhs, Jainas, was the English Common Law. Europeans, Christians, Jews,
Armenians and Parsis were so governed and all restrictions regarding possession and alienation
of property of an English woman applied to them. During coverture also the wife suffered
considerable disabilities in respect of acquisition and disposal of moveable and immoveable
properties.21All such restrictions and disabilities were done away with by s.4 of ISA, 1865
corresponding to s.20 of ISA, 1925.The rule that husband and wife were one was done away
with.22
On the other hand the HSA recognized relationship by marriage. For e.g. under the HSA when
the partition is between sons father‘s wife is given a share. Also widow of a pre deceased son
gets a share under the HSA but since the ISA recognizes only the blood relations, the widow of a
predeceased son does not inherit under the ISA.
9.POSITION OF CHILDREN/GRAND CHILDREN
LEGITIMATE/ILLEGITIMATE
18
Section 18 of Hindu Succession Act, 1956.
19
Section 27 of Indian Succession Act, 1925.
20
Section 20 of The Indian Succession Act, 1925.
21
Meerabai v Perozbi, 5 Bom 268.
22
S.A Kedar, B.B Mitra The Indian Sccession Act, Eastern Law House, 14th Ed., (2006), New Delhi.
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Children of void marriage and annulled voidable marriages are deemed to be legitimate for the
purpose of inheritance, within the meaning o Section 3(1)(j) of The HAS, 1956, by virtue of sec
16 Hindu Marriage Act, 1956. Proviso to Section 3(1)(j) is confined to those children who are
not clothed with legitimacy under section 16 of Hindu Marriage Act.23 No such legitimacy is
conferred under the Indian Succession Act, 1925, and children of void marriage and annulled
voidable marriages are considered illegitimate for the purpose of inheritance under the Act.
NATURAL/ADOPTED
Adoptive relations are not recognized under ISA for the purpose of succession. During the
British period there was a custom among the Mofussil Parsi had a similar custom as Hindus as
regard to adoption, however as it is not recognized under ISA, adopted son even for the parsi
cannot succees to his estate. On the other hand, the Hindu Succession Act puts both, the blood
relations and the adoptive relations on an equal footing, For Hindu concepts treats adopted child
as natural born.24
POST HUMOUS CHILD
Rights of posthomouns Child is persevered under both the laws. According Section 27 Clause (c)
of ISA,children en ventre sa mere are deemed to be in existence at the time of his father‘s death.
Section 20 of the HAS, also protects the rights of the child in womb and subsequently born alive
is treared as living at the time of devolution.
POSITION OF GRANDCHILDREN
Hindu Succession Act, 1956 has a list of heirs in The Schedule, for Section 8, general rules for
succession for males Hindus, which have elaborate scheme of ClassI and II heirs which include
children an grand children, similarly for Hindu female in Section 15.
However in Indian Succession Act, incidents of succession are explicitly mentioned.
Section 38: mentions the rule where the intestate dies leaving behind no child but grandchildren.
In such a case the property shall belong to the surviving grandchild or if there are more than one,
then it shall by equally divided amongst them.
Section 39: Where intestate has left only great-grandchildren or remoter lineal descendants.-In
like manner the property shall go to the surviving lineal descendants who are nearest in degree to
the intestate, where they are all in the degree of great-grandchildren to him, or are all in a more
remote degree.
23
Rasala Surya Prakasarao v. Rasala Veateshwararao, AIR 1992 AP 234.
24
Section 12 of Hindu Adoption and Maintenance Act.
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Section 40: Where intestate leaves lineal descendants not all in same degree of kindred to him,
and those through whom the more remote are descended are dead.-
(1) If the intestate has left lineal descendants who do not all stand in the same degree of kindred
to him, and the persons through whom the more remote are descended from him are dead, the
property shall be divided into such a number of equal shares as may correspond with the number
of the lineal descendants of the intestate who either stood in the nearest degree of kindred to him
at his decease, or, having been of the like degree of kindred to him, died before him, leaving
lineal descendants who survived him.
(2) One of such shares shall be allotted to each of the lineal descendants who stood in the nearest
degree of kindred to the intestate at his decease; and one of such shares shall be allotted in
respect of each of such deceased lineal descendants; and the share allotted in respect of each of
such deceased lineal descendants shall belong to his surviving child or children or more remote
lineal descendants, as the case may be; such surviving child or children or more remote lineal
descendants always taking the share which his or their parent or parents would have been entitled
to respectively if such parent or parents had survived the intestate.
The provision with respect to grandchildren of the intestate is also true, mutatis mutandis, in
respect of intestate‘s great grand children.
10. MODE OF DEVOLUTION

The Hindu Succession act, 1956 Provides two entirely different schemes depending on wether
the intestate was a male or female.25In case of male the property is dived into two types separate
and coparcenary, in case of a Hindu female intestate its categorized into three kind if property on
the basis of acquisition of the said property. Accordingly three different scheme followed for a
Hindu female. The heirs of a Hindu male are divided in four classes, each former excluding the
other. The heirs of females intestate are listed in five categories, each category excludes the latter
ones.
If two or more heirs succeed together the take property, save as provided per capita, not per
stripes, and as tenants-in-common and not as joint tenants.
The Indian Succession Act, 1925 incorporates the Roman and English principles of inheritance.
A uniform scheme is provided irrespective of the sex of the intestate. Consanguinity is the
determining factor for title to succession and relations by affinity are excluded from the list of
heirs. Under The Hindu Succession Act, the basis of an heir is not only consanguinity but also
affinity.
25
Sections 8-13 for a Male Hindu and Sections 15-16 for a Female Hindu.
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The ISA, derecognizes adoption for the purpose of inheritance and differences of religion
between the heir and the intestate is of no consequence. The preference of succession is
determined in terms of nearness in relation to the deceased. Accordingly, surviving spouse and
lineal descendents are made primary heirs.26 Under this Act, apart from the surviving spouse of
the deceased the other heirs are classified in four categories, each former excludes the latter,
these are:27
i. All lineal descendants of the deceased till any degree down below;
ii. The father
iii. The mother, brother-sister and their children
iv. The remaining kindred.
The surviving spouse inherits with the heirs belonging to any of these four categories. The
spouse does not exclude these heirs from inheriting, only affects their shares.28 Theprinciples of
representation apply without any reservations to lineal descendants.29
Provisions relating to consanguinity are contained in part IV comprising of sec 23 – 28. The
whole of this part applies to Europeans, East Indian, Eurasians, Jews and Armenians, Indian
Christians and other persons professing the Christian religion and domiciled in India. Section 24
defines the word kindred or consanguinity as connection or relation of persons descended from a
same stock or common ancestor. Relationship contemplated is the relationship flowing from
lawful wedlock.30 The son of one of the two illegitimate daughters of the same parents is not a
nephew of the other for the purpose of the ISA. In Raj Kumar Sharma v. Rajinder Nath
Diwan,31it was held that lineal descendants mean descendants born in lawful wedlock.
Consanguinity is of two kinds:
1. Lineal (sec 25)

2. Collateral (sec 26)
The expression next of kin also means the same thing. It means the nearest blood relations of the
propositus in an ascending and descending line.32 Section 25 defines lineal consanguinity. It is
that which that subsist between persons, of whom one is descendant in a direct line from the
other as between the propositus and his father, grandfather and so upwards in direct ascending
line or between propositus and his son, grandson, great grandson and downwards in the direct
descending line. Where the descendant is by lineal consanguinity or may call it as lineal descent,
26
Section 33 of the Indian Succession Act, 1925.
27
Poonam Pradhan,‖ The Scheme of Inheritance under the Indian Succession Act: A Comparison with Islamic and
Hindu Laws‖, Islamic Comparative Law Quaterly, Vol II:2, 1982 at p 101.
28
With the lineal descendants the spouse takes 1/3 of the property, and with other heirs ½.
29
Sections 37, 40 and 44 of Te Indian Succession Act, 1925.
30
Smith v. Massey, 30 Bom 500.
31
AIR 1987 Del 323.
32
Halton v.Foster, LR 3 Ch 505.
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then the person so descending is call a lineal descendant. But when the relationship is by
collateral consanguinity, one may be descendant of the other, but he cannot be said to be a lineal
descendant. Section 26 defines collateral consanguinity. It is between two persons connected by
a line which is not a straight line between them; husband and wife bear neither lineal nor
collateral consanguinity. In case of lineal consanguinity, every generation counts a degree counts
a degree, ascending or descending. In case of collateral consanguinity, the rule is to count
upwards from the person deceased to the common stock and then downwards to the collateral
relatives, reckoning a degree for each person both ascending and descending. In other words, the
rule is to take the sum of the degrees in both lines to the common ancestor. It must be noted that
in counting the degrees the propositus is to be excluded.
Section 27(a) provides that relations by the father‘s side and the mother‘s side are in equal
degree of kindred and therefore equally entitled to succeed. Clause (b) abolishes the distinction
between full blood and half blood. Under Section 18 of the HSA, a distinction is made between
relation by full blood and half blood. But under this section there is no distinction between
relation of full blood and half blood. According to Clause (c) children en ventre sa mere are
deemed to be in existence at the time of his father‘s death.
The devolution of the property of the intestate devolves upon the husband or wife, or those who
are the kindred of the deceased. The explanation appended to sec 32 gives statutory effect to the
doctrine of English law where by the widows right under the statute of distribution to participate
in the personal property of her husband may validly be barred by a settlement executed before
marriage. The settlement must be ante Nuptial and not post nuptial. A valid contract between the
husband and wife before marriage will also exclude the widow from claiming her share in the
estate of her husband if he dies intestate. The scope of The Indian Susccession Act, 1925, does
not purport to enlarge the category of heritable property nor does it affect the rights of
coparcenership as between those to whom it applies.33
Under the ISA all the lineal descendant inherit together while under the HSA one generation
inherit per stripes and even in the same generation heirs get different shares. E.g. A has no
children but two sons of a predeceased daughter and one daughter of a predeceased son. Under
the ISA all three of them will inherit equally while under the HSA the share of the predeceased
daughter will be divided into two equal parts inherited by the her sons and whereas the share of
the predeceased sons will go to his daughter. Thus she will get ½ of the property as compared to
the other grandchildren who will get ¼ each.
11. DISCRIMINATION WITH RESECT TO PARENTS
Under the ISA, the father excludes the mother, whereas under the HSA, the presence of mother
excludes the father. Under the HSA, father takes no share or the full share. This can be said to be
33
Francis v. Gabri, 31 Bom 25.
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the only gender discriminatory provision in the ISA .Except this provision of father excluding
the mother, the ISA can be said to be a perfectly gender neutral law as it keeps the males and the
females on an equal footing. In fact under these two Acts the father and the mother are placed in
diametrically opposite situations
12. POSITION OF BROTHERS/ SISTERS
Brothers and sisters of the intestate and their children seem to be best placed under the ISA.
Their position of brothers and sisters under the HSA is that they are placed under the class-II
heirs. Thus they inherit only when none of the class one heirs are present.
13. AGNATES/ COGNATES
The Indian Succession Act makes no difference between agnates (wholly related through males)
and cognates (wholly related through females). Under The HSA agnates are preferred to the
cognates.34 The principle of agency and the disparity between agnates and cognates which
existed under the classical Hindu Law is to a great extent retained under the modern Hindu Law.
14. LINEAL DESCENDANTS
METHOD OF COMPUTATION OF DEGREE OF KINDERED- The method of computing

degree of kindred under the ISA and the HSA is different. Under the ISA, in case of lineal
consanguinity, every generation counts as a degree, whether ascending or descending. In case of
collateral consanguinity, the rule is to count upwards from the person deceased to the common
stock and then downwards to the collateral relatives, reckoning a degree for each person both
ascending and descending.
Lineal descendants till 6th degree inherit under the Indian Succession Act 1925 whereas there is
no such stipulated degree under the HSA. Descendants up to any degree can inherit under the
HSA.
COUNTING OF THE PROPOSITUS- under the ISA the propositus is excluded while counting
the lineal ascendants/ descendants whereas under the HSA the propositus is counted as the first
degree
15. DIFFERENCE OF RELIGION

Difference of religion between the intestate and the claimant is immaterial under the Indian
Succession Act 1925 while the Hindu Succession Act provides that from a Hindu only a Hindu
can inherit. Thus the Act disqualifies a person from inheriting the property of the intestate when
34
Section 12 of The Hindu succession Act.
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the claimant gets converted to another religion unless saved by the Caste Disability Removal
Act.
16. DISQUALIFICATION OF MURDERES
Murderer of the intestate is disqualified for inheriting under both the laws, as per public policy. It
is a well settled principle of law that a murderer is not entitled to succeed estate of the victim. A
man cannot slay the benefactor and sustain his bounty. A murderer cannot be regarded as afresh
stock of descent and no title to the estate of the murdered can be claimed through the murderer.
35
17. CONCLUSION
India is a country which abounds in personal laws; each community has its own personal laws.
The Indian Succession Act is more general in pplication more secular , but it still cannot be
called uniform law on succession. The hindu Succession Act, which is applicable to only Hindus
though has kept traditional notions like Joint Hindu Property, 2005 Amendment has given better
rights to women, it is still not gender neutral.
However as our study show that it very difficult to ascertain laws when suh large and important
enactments on the Statute Books, its time that India inspite of being diverse should aim towards a
Uniform Civil Code which would be applicable to all Indians alike in the matter of Succession
BIBLIOGRAPHY
Books
1. Diwan Paras, Modern Hindu Law, Allahabad Law Agency, 19th Ed., (2008), Faridabad
2. Dr Sebastian, Christian Law of Succession in India, Southern Publishers, Cochin
3. Parashar Archana, Women and Family Law Reform in India, Sage Publications,(1992) New
Delhi
4. Saxena Poonam Pradhan, Family Law Lectures-Family Law II, Lexis Nexis Butterworths,
Wadhwa,2nd Ed., (2010), Nagpur.
Articles
1.Poonam Pradhan,‖ The Scheme of Inheritance under the Indian Succession Act: A Comparison
with Islamic and Hindu Laws‖, Islamic Comparative Law Quaterly, Vol II:2, 1982.
35
Mani v. Paru, AIR 1960 Ker 195
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Official Reports
1. Law Commission of India, One hundred and Tenth Reporton The Indian Succession Act,
1925, Feb 1985
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IRJMSH Vol 6 Issue 10 [Year 2015] ISSN 2277 – 9809 (0nline) 2348–9359 (Print)

A Comparative Study of the General Provision of Indian Succession Act,

A man is considered to die intestate in respect of all property of which

2. HISTORY AND SOURCE OF THE STATUTES

3. STATEMENT OF OBJECT & REASONS

1. European by birth or decent domiciled in India

FULL BLOOD/ HALF BLOOD

9.POSITION OF CHILDREN/GRAND CHILDREN

POST HUMOUS CHILD

However in Indian Succession Act, incidents of succession are explicitly mentioned.

10. MODE OF DEVOLUTION

1. Lineal (sec 25)

11. DISCRIMINATION WITH RESECT TO PARENTS

12. POSITION OF BROTHERS/ SISTERS

13. AGNATES/ COGNATES

14. LINEAL DESCENDANTS

METHOD OF COMPUTATION OF DEGREE OF KINDERED- The method of computing

15. DIFFERENCE OF RELIGION

16. DISQUALIFICATION OF MURDERES

2. Dr Sebastian, Christian Law of Succession in India, Southern Publishers, Cochin

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