Tag: succession

This article provides the readers with an insight into the Gains of Hindu Learning Act of 1930 by analyzing the act in detail, pointing out the loopholes, and providing suggestions.

Introduction

Hindu law is known for its existence from ancient sources and scripts written by scholars. These sources have originated centuries back, and the soul of Hindu law lies in these texts which include almost every matter of the current scenario from marriage, divorce, rights, and duties of spouses to property and maintenance. Matters pertaining to property were always debated, even in the contemporary era. The property which is earned, whether it comes under coparcenary or self-acquired property and their definitions of how a property can be classified into either of the categories were always a matter of discussion for an extended period until the Hindu gains of learning act were passed 1930. The Joint Hindu family has its traces in the patriarchal society where Karta was the head of the family and he took all the decisions. There was no room for the self-acquired property. The self-acquired property was legally recognized after this act came into effect. The core meaning of this act signifies all the properties a person earns through his learnings. Learning can be in any educational form. Any property a person earns by the application of his education or by any trade practices or profession is self-acquired property. It is recognized under the gains of learning act that he has the sole right over the property, and no other person even a member of the Joint Hindu family, can have control over it. This article aims to deeply analyze the importance of gains of the Hindu Learning Act 1930 by quoting various relevant judgments and individual property rights.

Historical Backdrop

Coparcenary property is passed on from generation as of amendment passed in the year 2005, both males and females have equal rights over the ancestral property. This makes the individuals have joint possession of the property. The coparcenary property however cannot be disposed of by any of the individuals. One can only dispose of his share of the property. However, as one individual owns the self-acquired property, it can be disposed of by him.

Before 1930, the position of self-acquired property was unknown; therefore, there were many conflicting views. The self-acquired property itself was not recognized under a separate law. The earlier rule was unjust as no person could have self-acquired property because it was of the view that any property earned through the fund of a Joint Hindu family will naturally become a part of the joint Hindu family. It even includes educational funding. Even if an individual’s education was funded by the joint-Hindu family, and he earns property through his efforts and learnings, it would still count as joint property. Subsequently, in the year 1930, to give clarity regarding the partition of the property, the Hindu gains of learning act was passed. The first attempt to pass this legislature was made in the year 1898 in the madras legislature. Sir Bhashyam Iyengar was the one to make this attempt. Nevertheless, it went in vain because of the veto powers of the governor in the year 1901. Later the act came into effect on the year 25^th July 1930.

The main motive behind passing this act was fulfilled by removing the loopholes regarding property distribution and clearing the ambiguous nature of property rights. This act started to realize the efforts and learnings of an individual to earn property. The learnings of the individual are dominant rather than the means of learning. Whether funding to provide learning was through the joint family was less important. On the contrary, this act was not initiated to give property to the individual blindly. A thin line of distinction was drawn between individual rights on property and coparcenary rights. When the coparcener sets up a private firm with the earnings of the joint family, then the share of the organization’s profit must be shared between other coparceners. On the other hand, the salary earned by applying own skills belongs to the coparcener only. This gave clarity to the act. The only property earned through direct funding comes under the family’s rights.

Judicial Position After the Act

In the case, Durvasula Gangadharudu v. Durvasula Narasammah and Ors¹ the matter of discussion was whether the property earned by a lawyer employing his profession comes under self-acquired. The court in this case held that it would depend on the factual circumstances. In most cases, the education or learnings of the lawyer would be funded by the family so that it would be treated as a jointly owned property. This led to not realizing the efforts of the individual to acquire a property. The individual’s consent on whether he wanted to share the property was of no value. This led to holding every member of the joint Hindu family jointly responsible for legal conflicts arising from the property. Moreover, it resulted in undue pressure on children as they naturally become part of the property through coparcenary rights before attaining maturity to understand the consequences and their rights. A property earned by an artist, exhibiting his own talent and skills was still considered joint property. There was no value given to his skills. A property was realized as self-earned only when there was no direct or indirect funding source. In the case, of Laleshman Mayaram v. Jamnabai,² the petitioner was a lawyer by profession and a judge filed a petition for claiming self-acquired property. The family funded only elementary education, and every other achievement was self-earned. So, his acquired property was considered self-acquired. In another case, Amar Nath Gokulchand v. Hukum Chand Nathul Mal.,³ Gokulchand spent 7 years abroad for his education. When he returned, the property he earned was partitioned between the family. This was later challenged. The court held that even though he did his education abroad, there was no proof that he funded the education with self-earned money. The family’s earnings funded it. Therefore, the property is subjected to partition.

In the case, Chandrakant Manilal Shah And Anr., v. Commissioner of Income Tax,⁴ Chandrakant Manila, the Karta in the joint Hindu family along with his son Naresh Manila started a partnership firm. But the partnership was held invalid because no earnings or property or any asset was contributed by the son which is necessary for a partnership. He only contributed skill and labour. Court held the partnership valid, stating the fact that according to the gains of the Hindu Learning act, even skills and learnings to acquire property are recognized under the self-acquired property.

In Balbir Singh Uppal and Anr., v. Gurmeet Singh Uppal and Ors.⁵ The petitioner was residing in Pakistan and owned some ancestral property in Pakistan. But after the partition, he moved to Delhi and started residing in Delhi with his son (defendant). The petitioner gave a share of the joint family property to the son to start his business. The issue was whether the profit earned in the business should be shared with the joint family. The court in this case made a significant observation. It was stated that in matters where the capital of the business is contributed more by the assets of the joint family, then the profit of the business should be shared with the family. But if the learnings of the individual play a more significant role in the business than the capital then it is not necessary to yield the profit. In the present case, as the business was of herbal medicines, the knowledge of the defendant was more important in the business regarding different herbs. The family property was just a supplement in the business for support. Therefore, it was held that the earnings are self-acquired.

Loopholes and Conclusion

One of the major loopholes of the act was that the reasonable amount clause was not added to the Hindu gains of Learning Act, of 1930. The law allows the members of the joint family to use the funds of the family for self-acquiring property through learning. But the proportion in which these funds can be used was not mentioned anywhere. This may result in a disproportion in the distribution of the resources and members might take unfair advantage of it. In the present scenario, the cost of education is also increasing and differs from place to place. This would result in a substantial loss in the family fund. The same concept of reasonable proportion is applied in other fields of Hindu law as well. Where the daughter has the same right as the sons to get a proportional share of the property.

Another important suggestion is when the family fund is used by the member for learning purposes, he should have the moral obligation to repay it in any form to the family. Similar to the right of the son to repay the father’s debts in Hindu law. In the current scenario, more important to determine cases regarding property is to differentiate them based on whether the property is attained through learning. This ignores the fact that learning is gained only through the proper allocation of the family fund. Learnings are something that cannot be measured it is intangible.

Another vital motive behind this right was to improve the status of widows. When the property earned is considered joint property, and after the passing away of the member, it did not provide widows with the status to get a share of the property. This resulted in deteriorating their condition in society and being vulnerable to poverty. To uplift their status, this act was important. The matter of the hour is only to preserve the joint family’s fund. The family and its members should complement each other where funds are proportionally allocated to its members, and in return, the members owe an obligation to the family.

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References

1. Durvasula Gangadharudu v Durvasula Narasammah and Ors, (1872) Mad. H.C. 47
2. Laleshman Mayaram v Jamnabai, (1882) I.L.R. 6 Bom. 225.
3. Amar Nath Gokulchand v Hukum Chand Nathul Mal, 1921 (23) BomLR 671.
4. Chandrakant Manilal Shah and Anr., v Commissioner of Income Tax, [1991] INSC 272.
5. Balbir Singh Uppal and Anr., v Gurmeet Singh Uppal and Ors, SR. NO. 307 I.E CWP 17923 OF 2005.

This article is written by Vishal Menon, from Symbiosis Law School, Hyderabad.

SUCCESSION LAWS

Succession essentially refers to the division of a dead person’s property. It refers to the sequence in which assets are transferred from one person to another, and also how much portion a specific member of the family receives upon the death of the individual. Corporate personalities with a continuous existence are excluded by succession rules in India. Succession, also known as Inheritance, is not just a stream of revenue for many people, but it is also a sign of familial lineage in Indian culture. Awareness of inheritance rules would be beneficial for all legal heirs in order to avoid any litigation squabbles, family disputes, or asset frauds.

WHO IS A LEGAL HEIR?

A legal heir is somebody who is supposed to receive property shares through a will or a Succession Act. As a result, a legal heir is an individual who, either by law or by will, claims his or her ancestor’s property. An inheritance is a piece of a deceased person’s estate given to an heir.

There are two primary methods for succession:

1. By Testamentary Succession, which occurs when the deceased leaves a testament naming specific successors to his property.

2. By Intestate Succession, when the deceased hasn’t left a will, the law ruling the dead (as per his religion) steps in and decides how his estate will be distributed.

When a person is dead without a will, he or she is said to have died intestate, and the assets are dispersed by a probate court.

In the present article, we are going to discuss the Succession laws that are applied amongst the Christians and the Parsis. Just like Hindu and Muslim religions, every other religion governs its property affairs with its own set of laws and rules. Hindu law is governed by Hindu Succession Act, 1956, and the Muslim religion is governed by Muslim Personal Law (Shariat) Application Act, 1937. Similarly, Christians and the Parsis are governed by the Indian Succession Act, of 1925.

CHRISTIAN LAWS OF SUCCESSION

The deceased’s religion determines who inherits his estate. The Indian Succession Act of 1925 essentially deals with the group of legal heirs who are eligible to inherit the deceased’s estate after his death. Considering domicile is a key criterion for defining succession laws affecting Christians in India, there is a wide range of rules of succession controlling Christians in India. For example, until January 1986, Christians in Kerala were controlled by two separate Acts: people domiciled in Cochin were managed by the Cochin Christian Succession Act, 1921, while those domiciled in Travancore were controlled by the Travancore Christian Succession Act, 1916. Both two Acts have already been repealed, and Christians who were previously regulated by these laws are now regulated by the general framework of succession under Indian Succession Act, 1925. However, in particular taluks, Protestant and Tamil Christians, for instance, are still ruled by their distinct rules. Christians in Goa and the Union Territories of Daman and Diu are regulated by the Portuguese Civil Code, 1867, whereas Christians in Pondicherry may be managed by the French Civil Code, 1804 (such Christians are known as “Renoncants”).

S. 2(d) of the Act defines an “Indian Christian” as follows: “Indian Christian” denotes a native of India who is, or alleges to be, of unmixed Asiatic heritage and practices any form of Christianity.

This was explained further in the case of Abraham v. Abraham, when the extent of this notion of an “Indian Christian” was defined in terms of its actual use. This decision established that a Hindu who converts to Christianity is no longer subject to Hindu law (customary or otherwise), and any ongoing obligatory force that Hindu law may have exercised over him is relinquished. Nonetheless, despite having converted from the old religion to the new one, he was given the option of allowing the old law to persist to affect him.

Sections 31 to 49 of the Indian Succession Act of 1925 govern this. As per Section 32, a Christian’s legal heirs are:

• Wife (Widow)
• Son
• Daughter
• Father
• Mother
• Brother
• Sister
• The direct bloodline (Such as son and his father, grandfather and great- grandfather)
• Under the third degree of kinship, if a person dies without leaving a will and only his great-grandfather, an uncle, and a nephew are remaining, no one will take equal shares with direct kindred.

The idea of kindred and consanguinity is introduced in Section 24 of the Act, which defines it as “the link or relationship of persons derived from the same source or same ancestry.” S. 25 defines ‘lineal consanguinity as a lineage in a direct relationship. This category includes relatives who are descended from each other or the same single origin.

S. 26 defines ‘collateral consanguinity’ as the situation in which two people are sprung from the same line or genetic basis but not in a straight line. It is worth noting that the rule for Christians makes no distinction between relationships via the father and those through the mother. If the intestate’s relations on both the father and mother sides are equitably linked, they are all qualified to succeed and will share equally. Furthermore, there is no differentiation between full-blood/half-blood/uterine relatives; and a posthumous kid is recognized as a child who was present when the intestate died, as long as the child was born alive and was in the womb so when the intestate died.

Christian law doesn’t quite acknowledge children born outside of marriage; it only recognizes legal marriages. Furthermore, polygamous marriages are not permitted. The Act’s Sections 33, 33-A, and 34 control transfer to the widow. They agree that if the dead has both a widow and lineal descendants, she will receive one-third of his wealth, while the remaining two-thirds will go to the remainder. If the widow remains surviving, the lineal descendants will receive two-thirds of the property; if she is not, they will receive the entire inheritance. Per capita (equal division of shares) is applicable if they are related to the deceased to the same degree. This is in accordance with Sections 36-40 of the Act.

Part VI of the Indian Succession Act of 1925 addresses testamentary succession. S. 59 states that any person mentally sound who is not a minor may part off his estate through a will. The interpretations of this Section substantially broaden the scope of testamentary disposal of an estate by saying unequivocally that married women, as well as deaf/dumb/blind people who are not consequently disabled to form a will, are all permitted to dispose of their asset by will. The method also requires mental clarity and abstinence from alcohol or disease that renders a person failing to comprehend what he is doing.

LAWS OF INHERITANCE FOR PARSIS

Sections 50 – 56 of the Indian Succession Act of 1925 deal with Parsi inheritance laws. There is no difference between the rights of the widow and widower, as it is in Christian inheritance law. The laws for Parsis are extremely ambiguous. A small group of Parsi Zoroastrians in India, whose religious objectives as well as their existence as citizens must be protected in order to ensure stability as citizens of India, and who, according to the Indian Constitution, resemble a specific culture. The Legislature’s stirring up of the issue of the Uniform Civil Code in India has caused alarm for these Parsi Zoroastrians, which will influence their succession rights. According to the Indian Succession Act, 1925, section 54, a Parsi person has the following legal heirs:

• Father
• Mother
• Full brother
• Full sister
• Paternal grandparents
• Maternal grandparents
• Children of maternal grandparents and their lineal descendants
• Children of paternal grandparents and their lineal descendants
• Parents of paternal grandparents
• Parents of maternal grandparents
• Children of paternal grandparents’ parents and their lineal descendants
• Children of maternal grandparents’ parents and their lineal descendants

A widow or widower of an intestate who marries again during the intestate’s lifetime receives no portion. The only exception to this rule would be the intestate’s mother and paternal grandmother, who would receive a portion even if they remarried during the intestate’s lifetime.

SUCCESSION PRINCIPLES COMMON FOR CHRISTIANS AND PARSIS      

• Illegitimate child’s rights: Christian and Parsi law do not recognize people who were born outside of marriage and only handle legal weddings (Raj Kumar Sharma vs. Rajinder Nath Diwan). Thus, the relationship referred to in various parts of the Succession Act about Christian and Parsi succession is the tie resulting from legitimate matrimony.
• The law does not distinguish between ties via the father and those through the mother for Christians and Parsis. In circumstances where both the father and mother sides are evenly linked to the heir, all those relations are entitled to succeed and will give equally. Additionally, there is no distinction between full-blood, half-blood, and uterine relationships; and a posthumous kid is considered the same as a child alive when the intestate died, provided the child was born alive, and was in the womb so when the intestate died.
• Testamentary Succession: Applicable to both Christians and Parsis.
• Wills and Codicils: Any individual of sound mind who is not a minor has the power to dispose of his estate by a Will. Thus, a married woman or other individuals who are deaf, dumb, or blind are not prohibited from making a Will if they are aware of what it accomplishes. As a result, the only people who are barred from making Wills are those who are in an unfit frame of consciousness due to intoxication, disease, or other factors.
•  Testamentary Guardian: A father has the power, by Will, to designate a guardian or guardian for his minor child.
•  Revocation of Will by Testator’s Marriage: All types of wills are canceled by marriage that occurs after the Will is made.
• Privileged and Unprivileged Wills: Unprivileged Wills are those that meet the necessary conditions outlined in Section 63 of the Succession Act, while Privileged Wills are those that are executed in accordance with Section 66 of the Succession Act.
•  Bequests to religious and charitable causes: Section 118 of the Succession Act (which applies to Christians and not Parsis) states that no man with a nephew or niece or any nearer relative shall have the power to pass down any property to religious or charitable purposes unless by a Will implemented not less than 12 months before his death, and stashed within six months from its implementation and operation in some place provided by law for the secure storage of the Wills of living peasants. The Supreme Court ruled that the aforementioned condition was unconstitutional, thus Christians and Parsis can give their possessions to philanthropy without being restricted by it.
• Probate-In the event of a Parsi’s death after the Act’s inception, a probate is required if the will in issue is created or the property entrusted under the will is located within the “ordinary original civil jurisdiction” of Calcutta, Madras, and Bombay, and also where such wills are created beyond these limits insofar as they correspond to immovable property located within those limits.

Christians: A Christian is not required to get probate of his Will.

CONCLUSIONS AND SUGGESTIONS

The inheritance regulations that must be obeyed are heavily influenced by the faith that the intestate professes at the moment of his or her death. The complexity of succession rules in India as a result of the various religions in use has made succession laws even more challenging. However, regardless of faith, the primary goal of intestate succession rules is to distribute property to legitimate successors without causing family feuds. The succession laws of the faith professed by the individual who died intestate dictate who all qualify as lawful heirs and their order of preference. As a result, understanding the laws relevant to a person creating a will or organizing the inheritance of his estate requires a thorough understanding of the intestate’s faith.

The Indian Succession Act of 1925, which is the law of the land in terms of intestate and testamentary succession, must evolve with the passing years and civilization. Keeping several biased outdated rules in place goes against the principles of the Constitution. Women’s right to inheritance is important for socioeconomic and political development, yet women are frequently denied equal rights to inheritance due to a deeply established patriarchal system. Women’s status could be improved further by granting them similar rights in the property. The repeal of gender discriminatory elements from the Indian Succession Act, of 1925 would go a great way toward improving the situation of women, particularly Christian women, who constitute the majority of the community regulated by the Act.

Kerala Law Commission’s 104th Report on the Law of Intestate Succession Among Christians in Kerala,   submitted under the chairmanship of T.R. Balakrishna Iyer, strongly endorsed laying down uniform rules of intestate succession for all Christians without exception, taking its cue from the Christian Succession Acts (Repeal) Bill, 1958, under which Kerala Government itself had realized the need for uniform law for intestate succession among Christians. It opined that the continuation of separate laws of succession over various places violated the principle of equality enshrined in Articles 14 and 15 of the Constitution. The adoption of a uniform rule of intestate succession would indeed be a move forward towards the establishment of a Uniform Civil Code, as contemplated by the Constitution’s Directive Principles.

India is a religiously multicultural country, and its constitution grants equal treatment to all religions. Keeping up with the plethora of succession rules, on the other hand, may be rather difficult and time-consuming for both the average man and law enforcement. As every citizen of India, regardless of creed, race, or customs, is given equal recognition in fundamental rights, a uniform code of succession laws among all religions guided throughout the country would facilitate a better understanding and application of rules for both the common man and law enforcers.

CITATIONS AND REFERENCES

1. AIR 1987 Del 323.
2. Archana Mishra, ‘Breaking Silence – Christian Women’s Inheritance Rights under Indian Succession Act 1925’, https://www.researchgate.net/publication/291349382_Breaking_Silence_-_Christian_Women’s_Inheritance_Rights_Under_Indian_Succession_Act_1925/link/56a1d5a108ae27f7de26952a/download .

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This article is written by Ajita Dixit, who graduated from ILS, Dehradun, and presently pursuing Masters in Law.