CHRISTIAN LAW OF SUCCESSION – A CRITICAL STUDY

Title of the Subject:

504 Family Law- II

Submitted By- Avishruti Dutta

UID – SF0120009

3rd Year, 5th Semester, B.A., LL.B. (Hons.)

Faculty in charge

Mrs. Dr. Gitanjali Ghosh

National Law University and Judicial Academy

1
 TABLE OF CONTENTS

CONTENTS PAGE NO.

ABSTRACT.......................................................................................................... 3

1. INTRODUCTION 4-9

1.1 AIM AND OBJECTIVES OF WORK

1.2 RESEARCH QUESTIONS
1.3 SCOPE AND LIMITATIONS OF WORK
1.4 RESEARCH METHODOLOGY
1.5 REVIEW OF LITERATURE
1.6 TABLE OF CASES
1.7 TABLE OF ABBREVIATIONS
1.8 TABLE OF STATUTES

2. LAWS OF SUCCESSION 10- 11

2.1 INDIAN SUCCESSION ACT OF 1865

2.2 INDIAN SUCCESSION ACT OF 1925

3. CHRISTIAN LAWS OF SUCCESSION 12- 19

3.1 WHO IS A CHRISTIAN
3.2 DOMICILE
3.3 KINDRED OR CONSANGUINITY
3.3.1 LINEAL CONSANGUINITY
3.3.2 COLLATERAL CONSANGUINITY
3.4 RIGHTS OF A WIDOW OR A WIDOWER
3.5 RIGHTS OF WOMEN
3.6 RIGHTS OF CHILDREN
3.7 RIGHTS OF ILLLEGITMATE CHILDREN
3.8 TESTAMENTARY SUCCESSION

4. CONCLUSION 20

5. BIBLIOGRAPHY 21-22

2
Abstract

Diversity prevails in law of succession among Indian Christians. Christian constitute the third
major population in India after Hindu and Muslim but still has been not able to act as influential
group either socially or politically to draw sufficient attention of the Legislature to their
problems in personal law particularly in field of succession. Majority of Christians are governed
by the Indian Succession Act, 1925 in matters of succession. The ISA, 1925 guided by patriarchal
mindset allows unfairness to women in intestate succession.

3
1. INTRODUCTION

The Indian Succession Act of 1925 is considered the authority for all religions in this country
with regard to inheritance in general and in terms of law. However, to understand the Christian
Laws of succession in all respects, The Succession Act cannot be looked into as a solitary unit.
Christians have varied laws on succession and familial relations. Customary practices that have
been passed on through generation, along with the rules for succession among the Christians that
has been codified under the Indian Succession Act, 1925, is how Christian Laws of Succession
are governed. The British government in India had previously enacted the Indian Succession Act,
1865, which was later replaced by the Indian Succession Act of 1925, and both of these act
included Christians within their purview. Section 2 (d) of the Succession Act of 1925 defines
“Indian Christian” as “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.” 1 However, till about January
1986, the Succession Act of 1925 was not the sole authority for Christians. 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, 1916.2 However, these acts were repealed
in the Landmark judgment, made in the case of Mary Roy v. State of Kerala. 3 This case is an
essential facet that needs to be understood in order to analyze the Christian Laws of Succession,
and what changes were brought along.

The understanding of what is meant by the word “Christian” or an “Indian Christian” is an

essential pretext before understanding the laws of Succession among Christians. A mere look at
the direct legal provisions would prove to be a futile exercise as it has to be looked at in its
entirety. Customary practices are still very much relevant to determine as to what are the rules of
inheritance. Certain Christians residing in Tamil Nadu, living in certain Talukas, for instance, are

1
S. 2(d), Indian Succession Act, 1925

2
All Answers ltd, 'Christian Law of Succession' (LawTeacher.net)
https://www.lawteacher.net/free-law-essays/property-trusts/christian-law-of-succession.php?vref=1, last seen on
8/12/2020

3
(1986) 2 S.C.C. 209.

4
still governed by their respective customary laws. Even certain Protestant Christians continue to
follow customary laws. Thus, this project will try to analyze what the Christian Law of
Succession is, in its entirety, by looking into the relevant provisions, case laws and other
customary practices.

1.1 AIMS AND OBJECTIVES

The Aims and Objectives of this project are as follows -

 To look into what Succession is and to analyze the development of Christian Law of
Succession in general.

 To analyze the various existent concepts pertaining to Christian Law of Succession.

 To look into the rights of various people in regards to Laws of Succession.

1.2 SCOPE AND LIMITATIONS

The scope of this work is relatively wider as the research work is a study on the overall nature of
Christian Law of Succession. There are a lot of facets and concepts that need to be dealt with and
understood to analyze Christian Laws of Succession in its entirety.

The Limitation of the work, however, remains that it is a wide concept and an in-depth analysis
of a specific concept cannot be done.

1.3 REVIEW OF LITERATURE

1. All Answers ltd, 'Christian Law of Succession' (LawTeacher.net) -This website is an online
forum that acts and helps as an online discussion forum for various students and
academicians from the Legal background. Short articles with very concise and basic
knowledge can easily be found which provide a helpful starting point to gain a preliminary
knowledge on the topic of research. For the purpose of this research, the article cited was
particularly useful to understand the concept of consanguinity in a concise and easy manner
to gain a good starting point. It had surface level information for a number of other topics
that were covered.

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2. Sri. Sk. Ziauddin, Succession under Indian Succession Act 1925 in respect of Christians- Sri
Sk. Ziauddin, during the time period when this published, was a hon’ble junior Civil Judge in
Palakonda, Andhra Pradesh. It was a part of a series of articles that was written by various
eminent judges to shortly look into Christian Laws of succession and give certain clarity to
the situation so that there can be ease in understanding the laws for people at large. This
article was very handy to understand the various different facets of Christian Laws of
succession and a practical take on what their legal situation is.

3. Nandini Chatterjee, The Emergence Of Christian Personal Law In Colonial India,

Cambridge University Press, 2010 – The following paper was published in the reputed
Cambridge University Press. It is a very informative paper about the development of
Christian Personal Laws through the British regime. For the purpose of this work, this paper
was of immense help to understand the origin of the Indian Succession Act of 1865.

4. Sri S. Vasu Dev, Succession under Indian Succession Act 1925 in respect of Christians – Sri
S. Vasu Dev, during the time period when this published, was an hon’ble junior Civil Judge
in Yemmiganur. It was a part of a series of articles that was written by various eminent
judges to shortly look into Christian Laws of succession and give certain clarity to the
situation so that there can be ease in understanding the laws for people at large. This article
focused on all the basic concepts of Christian Laws of succession, and was an excellent
starting place to gain preliminary knowledge on all important facets that needed to be
covered an analyzed within the purview of this work.

5. Paras Diwan, Shailendra Jain & Piyush Deewani, Law of Intestate & Testamentary
Succession, Universal Law Publishing Co. Pvt. Ltd., 2006- The following article was a very
meticulous and elaborate paper on overall laws of succession, both testamentary and
Intestate. It didn’t solely focus on Christian Laws; however, it had a very elaborate portion
that was dedicated to understanding Christian Laws of succession. Moreover, it had an
elaborate explanation of how property devolves within different people in case of an Intestate
Succession, and what are the various provisions and limitations in relation to Testamentary
Succession within Christian Laws for Succession in India. This piece was of immense help to
this project to further understand the technicalities of Intestate and Testamentary Succession.

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6. Vijender Kumar, Matrimonial Property Law in India: Need of the Hour, Vol. 57, Journal of
the Indian Law Institute – The following article was yet another elaborate piece that talked
about Matrimonial Property law in India. However, this publication focused, in a general way

on all personal laws and other legislations from a very women rights-centric perspective. It
also contained a concise yet informative portion of Matrimonial Property Laws pertaining to
Christian women. It gave a deeper insight into the rights of Christian women in India within
our Christians Laws of succession and the development of that law through time.

1.4 RESEARCH QUESTIONS

This paper shall seek to answer the following formulated Research Questions-

a) What is the Law of Succession and how did Christians fit into its development?

b) What are the essential rules of succession in relation to diverse Christian people?

c) Who is a Christian and who are their kindred or consanguinity?

1.5 RESEARCH METHODOLOGY

In this study of the Christian Laws of Succession, the Doctrinal Method of Explanatory Research
Design has been employed.

The Explanatory Research Design method has been employed in order to understand, analyse
and comprehensively explain the nature and concept of the topic at hand.

For the collection of information for this research work, secondary sources of data such as books,
articles and pre-set norms and case laws have been referred.

Mode of citation- The mode of citation used in this project is Bluebook 20th Ed.

1.6 TABLE OF CASES

 Abraham v. Abraham

 Chacko v. Daniel

 D. Chelilah v. G. Lalitha Bai

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  Gajapathi Radhika v. Sri Gajapathi Nilamani

 Jane Anthony v. V.M. Siyath

 Mary Roy v. State of Kerala

 Sarah Ezra v. Unknown

 Savitaben Somabhai Bhatia v. State of Gujarat

1.7 TABLE OF ABBREVIATIONS

1. AIR All India Reporter

2. Ch. Chapter

3. Cal. Calcutta

3. KLT. Kerela Law Times

4. PC. Privy Council

5. SCC. Supreme Court Cases

6. S. Section

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1.8 TABLE OF STATUTES

 1865 – Indian Succession Act

 1901 – Native Christian Administration of Estates Act

 1916 – Travancore Christian Succession Act

 1921 – Cochin Christian Succession Act

 1925 – Indian Succession Act

 1956 – Hindu Succession Act

 1973 – Code of Criminal Procedure

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2. LAW OF SUCCESSION

A basic look into what is meant by succession is necessary before analyzing Christian Laws of
Succession. The laws of succession, in general prescribe how the property of a deceased person
passes to his or her heirs. The kinds of properties that are devolved are broadly categorized as
either ancestral or Self-Acquired. There are two ways in which succession takes place. First is
when the deceased has left behind a will. This is known as Testamentary Succession, whereby
the deceased has left a will bequeathing his property to the heirs he deems fit, while also
ascertaining their shares in such a property. The second one calls for more laws to be
administered and looked into, as a need for it arises only when the deceased has not left a will.
Such a form of succession is known as intestate succession whereby the laws governing the
deceased have to be applied, according to the religion this person followed. That determines how
the deceased person’s estate will devolve. What must be realised is that Indian Succession Act of
1925 is the primary authority for Christians when it comes to succession.

Christianity is the third-most popularly followed religion in India. When it comes to faith Indian
Christians are almost identical, but they vary in their practices. Almost all varieties of
Christianity are believed to reside in India though the most common groups are from the Roman
Catholic Church, Syro-Malabar Catholic Church, and the Protestant Churches like the Church of
South India, the Marthoma Syrian Church, and the Presbyterian Church of India and so on. 4 Due
to this wide array of variety, family law governing Christians in India is different. Various forms
of influences have led to cultural variations. These variations take the form of a legal sanction
over times, either statutorily or judicially.

In the Indian Succession Act of 1865, the laws of Succession were consolidated firstly and then
eventually in the so-called improved and consolidated version in the Indian Succession Act of
1925. It would only be prudent to understand the coming of the Act of 1925, which is definitely
the primary legislation in the matter, before moving into specifics of what Christian Laws of
Succession is.

4
247th Law Commission Of India Report, Sections 41 to 48 of the Indian Succession Act, 192,
https://lawcommissionofindia.nic.in/reports/Report247.pdf

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2.1 INDIAN SUCCESSION ACT OF 1865

Originally, when there were no statutes pertaining to this matter, succession laws were
historically guided by the people’s respective religions. Since these rules were subjective and
based upon the interpretation which varied widely, it became increasingly difficult and confusing
over times and conflicts and disagreements arose with no solid answers. Prior to 1865, majority
of the prominent religions were governed by their respective personal laws for inheritance
matters. However, the position of Christians in India even before 1865 was a bit obscure. In
general the English law was applied in the Presidency towns, but the position as regards the
Mofussil was not very clear. It is this prevalence of obscurity that was in fact, referred to by Sir
Henry Maine, while introducing the Bill that led to the Succession Act of 1865. 5 Eventually,
however, the Act of 1865 was replaced by the Indian Succession Act of 1925. It was an act
which aimed towards consolidation. The Native Christian Administration of Estates Act of 1901
was also one of the eleven acts that were inculcated in the Succession Act of 1925.

2.2 INDIAN SUCCESSION ACT OF 1925

The Act of 1925 for Indian Succession superseded the act of 1865 as our primary statute in these
cases and matters, and it closed various gaps with its commencement. It was a mostly
consolidating act, as it was a final inclusion of the act of 1865 and the other plethora of laws that
were passed in this time period. The object of this Act stated that “The subject of this bill is to
consolidate the Indian Law relating to succession; the separate existence on the statute book of a
number of large and important enactments renders the present law difficult of ascertainment and
there is, therefore, every justification for an attempt to consolidate it. The bill has been prepared
by the Statute Law Revision Committee as purely consolidating measure. No intentional change
of law has therefore been made."6

The Indian Succession Act of 1925 was thus, a conglomerated legislation which widely included
the major laws of the land pertaining to succession and inheritance for Jews, Parsis and
Christians. For Hindus, Sikhs and Buddhists, the Hindu Succession Act, 1956, and as amended

5
Ibid
6
Statement of objects and reasons, The Indian Succession Act, 1925

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in 2005, is used. As for Muslims, their Muslim laws or Shariyat law are used in most situations
to determine laws of succession.

3. CHRISTIAN LAW OF SUCCESSION

Despite accounting for just 2.3% of the population, approximately 28 million Indians identify as
Christians. For this part of the population, Christian Law of succession and inheritance is
applied. Some Christians adhere to Customary Laws, while others are governed by the Act of
1925. Thus, with all the information at our disposal, it is certain that Christian Law of succession
has many essential concepts need to be covered through the course of this chapter with relevant
provisions and precedents.

3.1 WHO IS A CHRSITIAN

It is now clear that the Indian Succession Act of 1925, together with a few customary practices,
serves as the governing legislation and law for Christian Law of Succession. However, amidst all
of this, the very first pretext is as to what the definition of an Indian Christian is, or who is an
Indian Christian to begin with. As mentioned earlier, Section 2 (d) of the Act of 1925 defines an
“Indian Christian” as “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.” However, in order to provide us a
deeper and more precise knowledge of the position of such a notion in law, these provisions
frequently need to be interpreted in conjunction with precedents. As a result, this has been
further extended and broadened. In the case of Abraham v. Abraham 7, the Privy Council had
observed that when a Hindu person converts to Christianity, the Hindu Law ceases to having
ongoing obligatory force upon the converted individual, as he essentially renounces the previous
law by which he was bound. The court had further observed that such a conversion to
Christianity would result in the termination of his relationship with the prior Hindu family. The
course of conduct of the convert after his conversion would show by what law he had elected to
be governed from.8 However, under Section 26 of the Hindu Succession Act, 1956, due to
conversion of their parents the children of such converts are not Hindu by birth. Therefore, the
Hindu Succession Act does not apply to them. However, converted individual, who is Hindu by
7
1863 (9) MIA 195
8
Sri. Sk. Ziauddin, Succession under Indian Succession Act 1925 in respect of Christians, p. 2,
https://districts.ecourts.gov.in/sites/default/files/christianlawjcjplkd.pdf

12
birth, cannot be disqualified for inheritance of their father, as their father is a Hindu, and their
father's property and inheritance would thus, governed under the Hindu Succession Act.

In essence the judgment made in the case of Abraham v. Abraham, represented a diverse
segment of Indian culture, not only Christians.9 This principle was also further reaffirmed by the
judgment that was passed by the Privy Council in the case of Sri Gajapathi Radhika v. Sri
Gajapathi Nilamani.10

3.2 DOMICILE

The provisions pertaining to domicile are determined by the second part of the Indian Succession
Act of 1925. Section 4 of the Act exempts Hindus, Muslims and other religions from its purview,
but not Christians.” Section 5 of the Succession Act of 1925 distinguishes between Movable and
Immovable properties. Categorically in India, the law states that succession related to the
deceased's moveable property is governed by the lex loci. That means succession would proceed
as per the laws where the deceased had his domicile at the time of his death. 11 No matter where
he was domiciled at the time of his death, succession to the deceased person’s immovable
property will be governed by the law of India.12 Moreover, only one domicile impacts the
succession for the purposes of transferring such movable property. 13 It needs to be noted that
domicile is distinct from the idea of nationality. Simply expressed, the term "domicile" denotes
immediate residence and not the original allegiance of the deceased. In Part IV of the Succession
Act of 1925 through various illustrations and sections the particulars pertaining domicile is
elaborately explained.

3.3 KINDRED OR CONSANGUINITY

Regarding any property for which a person has not made a testamentary disposition that is
capable of taking effect, he is deemed to have died intestate. 14 To put it another way, a person is

9
Nandini Chatterjee, : The Emergence Of Christian Personal Law In Colonial India, Cambridge University Press,
2010, https://www.jstor.org/stable/40926527

10
(1870) 14 W.R. P.C. 33
11
S. 5 (1), Indian Succession Act, 1925
12
S. 5 (2), Indian Succession Act, 1925
13
S. 6, Indian Succession Act, 1925
14
S. 30, Indian Succession Act, 1925

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said to have died intestate if they had property that can be passed on but no will or testament
stating how or to whom they should be passed on. Any property which has not yet been legally
bequeathed must nevertheless be transferred. It should be emphasized that when there is
complete testamentary succession, then these do not need to be considered because the deceased
has already bequeathed all of his property as he deems fit. However, when a person dies without
a will, i.e., in the situation of Intestate succession, the property is divided according to the
provisions of the Indian Succession Act of 1925, certain customary standards, and so on. In
general terms, there are mainly three kinds of heirs: spouses of the deceased, Lineal Descendants
of the deceased, and the Kindred or Consanguinity.

Kindred or consanguinity is defined as “the connection or relation of persons descended from the
same stock or common ancestor” under Section 24 of the Succession Act of 1925. 15 Kindred are
therefore limited to relationships created by the act of a lawful marriage, which naturally
eliminates relationships that are illegitimate or the so-called illegitimate children born outside of
wedlock. There is no recognition for polygamous marriages too, although it does include adopted
children. The kindred also do not include relation born out of affinity, such as those made with a
mother-in-law or a step-mother.

3.3.1 LINEAL CONSANGUINITY

Lineal Consanguinity is a narrower concept within Kindred or consanguinity. Between two

persons Lineal consanguinity exists. Out of these two individuals, one is directly descended from
the other. Some apparent instances are the relations between a man and his father, grandfather
and great-grandfather, and so upwards in the direct ascending line; or between a man and his son,
grandson, great-grandson and so downwards in the direct descending line. 16 Lineal consanguinity
is differentiated according to degrees. According to Section 25(3) of the Indian Succession Act
of 1925, an individual’s a relation between him and his father is in the first degree, and so
likewise is his son. Similarly, the relation between a grandfather and grandson in the second
degree, and the degree goes in this order.17

15
S. 24, Indian Succession Act, 1925
16
S. 25 (1), Indian Succession Act, 1925
17
S. 25 (3), Indian Succession Act, 1925

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According to the provisions of the Indian Succession Act of 1925, the succession for lineal
descendants between various degrees takes place. As mentioned in Section 28, “Degrees of
kindred are computed in the manner set forth in the table of kindred set out in Schedule I”. 18
Therefore, there is a table of consanguinity that has been laid down in details, in Schedule I 19,
which needs to be followed. Section 40 of this Act, states that “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.” It is followed by several illustrations that denote how division of Property shall be taking
place in case of existence of only lineal descendants of different degrees. It is a fact that
succession can happen either as division through ‘per capita’ or ‘per stirpes’. Per Capita would
mean that one share is given each heir. This is done when all members are on the same degree of
relationship. On the other hand, division according to branches when degrees of relationship are
discrete, there is division Per Stirpes. 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’.20

On the other hand, the rules laid down in Sections 41, 42 and 4321 are followed where there are
no lineal descendants. Section 41 states that when there is no lineal descendant of the deceased,
then the rules that have been laid down from Section 42 through Section 48 has to be followed.
Moreover, Section 42 of the Succession Act of 1925 states that when the deceased has no lineal
descendant, the property shall go to the intestate’s living father. 22 However, if the intestate’s
father is dead, but there is a living mother, or even living brothers or sisters, then mother and
each living brother or sister shall succeed to the property in equal shares.23

18
S. 28, Indian Succession Act, 1925
19
Schedule I, Indian Succession Act, 1925
20
Sri. Sk. Ziauddin, Succession under Indian Succession Act 1925 in respect of Christians, p. 7,
https://districts.ecourts.gov.in/sites/default/files/christianlawjcjplkd.pdf

21
S. 41, 42 & 43, Indian Succession Act, 1925
22
S. 42, Indian Succession Act, 1925

23
S. 43, Indian Succession Act, 1925

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3.3.2 COLLATERAL CONSANGUINITY

According to Section 26 of the Indian Succession Act of 1925- Collateral consanguinity is that
which subsists between two persons who are descended from the same stock or ancestor, but
neither of whom is descended in a direct line from the other 24. An example for collateral
consanguinity is that of a relationship between two brothers. Christian law only deals with
legitimate marriages and it does not recognise children born out of wedlock. 25 However, certain
rights were recognized for illegitimate children in the case of Jane Anthony v. Siyath.26

It is necessary to count upwards from the deceased person to the common stock and then
downwards to the collateral relative for the purpose of ascertaining in what degree of kindred
any collateral relative stands to a person deceased with a degree being allowed for each person,
both ascending and descending. It's interesting to note that Christian Laws of succession do not
distinguish between relations through the father or the mother.They will divide the same amount
of the share among them if any of these relations, deriving from either the paternal or maternal
sides, are related to the intestate on an equal basis. A posthumous child is considered as a child
who was present when the intestate died as long as the child has been born alive and was in the
womb at the time of the intestate's death. Additionally, there is no distinction between full-blood,
half-blood, or uterine relatives.

3.4 RIGHTS OF THE WIDOW OR THE WIDOWER

The Indian Succession Act of 1925 contains provisions on the position of a widow in terms of
succession under the sections 33, 33A, and 34. If taken conjointly, these provisions state that if a
deceased person left both, a widow and lineal descendants, the widow or widower would take
one-third of the share and the remaining two-third would be divided amongst the lineal
descendants. If, on the other hand, the deceased leaves behind a widow or a widower, as well as
kindred, the widow or widower will receive half of the share, with the remainder shared among

24
S. 26, Indian Succession Act, 1925

25
Sri S. Vasu deva, Succession under Indian Succession Act 1925 in respect of Christians, p. 2
https://districts.ecourts.gov.in/sites/default/files/team%20ii.pdf

26
2008 (4) KLT 1002

16
the kindred.27 If there is no kindred left either, then the entire estate goes into the possession of
the widow. Similarly, Section 35 of the Act specifies the rights of the widower. The widower has
the same rights and provisions as the widow. In Christianity, however, if a widow is
contractually precluded from having a right to share her husband's inheritance by a contract
established before her marriage, the widow will not be entitled to the property.

3.5 RIGHTS OF CHILDREN

It is clear that if the widow of the deceased is still alive, the lineal descendants will take two-
third shares of the entire estate. The descendants who are collateral share per capita, as was
discussed earlier. That is to say, that they will all get equal shares. Section 36 of Act of 2015
states that “The rules for the distribution of the intestate’s property (after deducting the widow’s
share, if he has left a widow) amongst his lineal descendants shall be those contained in Sections
37 to 40.”28 Section 38 of the Act states that Where the intestate has not left surviving him any
child but has left a grandchild or grandchildren and no more remote descendant through a
deceased grandchild, the property shall belong to his surviving grandchild and be equally divided
among all his surviving grandchildren.29 This shall go on till the nearest available living linear
descendant. It also needs to be noted that Christians acquire property as tenants-in-common and
not as joint tenants.

3.6 RIGHTS OF WOMEN

In principle, Christian law of inheritance and succession applies equally to men and women.
When discussing Christian women's property rights, the authoritative case of Mary Roy v. State
of Kerala30 must be cited. Before this case came about, the Travancore Christian Succession Act
of 1916 and the Cochin Christian Succession Act of 1921 were still in authority for Travancore
Christians and Cochin Christians respectively. These laws were inconsistent with the Indian
Succession Act of 1925, causing uncertainty. Even in the year 1978, the judgment in the case of

27
Paras Diwan, Shailendra Jain & Piyush Deewani, Law of Intestate & Testamentary Succession, Universal Law
Publishing Co. Pvt. Ltd., 255, 257 (2006)
S. 36, Indian Succession Act, 1925

28

29
S. 38, Indian Succession Act. 1925
30
(1986) 2 S.C.C. 209.

17
D. Chelilah v. G. Lalitha Bai31 affirmed that these acts were still in effect. The Mary Roy case
fundamentally established that the daughter is entitled to an equal share of the property of the
father, as the son.32 Thus, such a precedent was only set as late as in the year 1986, and till that
time, these two acts in Cochin and Travancore were still operation and weren’t particularly
egalitarian in nature. Apart from this, women's property rights may be examined through the lens
of widows' and sisters' property rights within lineal and collateral descent. As it has already been
previously stated, the widow receives a considerable share of the deceased's property, and there
is no differentiation within lineal descendants based on the gender of those who inherit. Thus,
looking at it in its entirety, Christian women have been given considerable protections, at least
under the law, in the Christian Laws of Succession, within the Indian Succession Act of 1925
and landmark precedents such as the one set in the case of Mary Roy.

3.7 RIGHTS OF ILLEGITIMATE CHILDREN

Only kinship is recognised under the Indian Succession Act of 1925. Thus, technically, adopted
and illegitimate children are thus excluded from the purview of the act. Although, as previously
stated, Christian law grants equal inheritance rights to sons and daughters, this is subject to the
requirement that they are born through a legitimate marriage. It was also observed in the case of
Sarah Ezra33, that the Succession Act of 1925’s definition of “Child” does not include
illegitimate children. According to the judgment made in the case of Chacko v. Daniel34, when it
comes to rights of asking for maintenance under the Christian Law, a minor child, irrespective of
being either legitimate or illegitimate, does not have the right to ask for maintenance. However,
the Kerala High Court had observed that both legitimate and illegitimate children are entitled to
the maintenance under Section 125 of the Code of Criminal Procedure in the case of Jane Antony
v. V.M. Siyath.35 It was also observed that in cases of intestacy of parents, there is no reason to
deny them their right of inheritance. It also suggested the Central Government to enact a
legislation to confer right of succession on all illegitimate children irrespective of their religion
in tune with Section 125 of the Code of Criminal Procedure. In another case, Savitaben
31
AIR 1978 Mad 6

32
Vijender Kumar, Matrimonial Property Law in India : Need of the Hour, Vol. 57, Journal of the Indian Law
Institute, 500, 511, : https://www.jstor.org/stable/44782798, last seen on 12/12/2020
33
AIR 1931 Cal 560
34
1952 KLT 595
35
2008 (4) KLT 1002

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Somabhai Bhatia v. State of Gujarat, 36 it was advised to the Central government by the courts
that there should be a legislation to confer right of succession on all illegitimate children
irrespective of their religion under Section 125 of the Code of Criminal Procedure, as it is secular
in nature. Thus, irrespective of certain protections under the Secular law of Code of Criminal
Procedure, the rights of illegitimate children are still limited and are often the subject to
inclusion. They also have a lower preference than a child born out of a legitimate relationship.

3.8 TESTAMENTARY SUCCESSION AMONG CHRISTIANS

A will is a person's declaration or wish by a person that he intends for to happen, after his death.
To form a valid will, a testator must have a testamentary intention to which he provides
intentional expression and which is intended to take effect only upon his death. 37 The 6th Part of
the Indian Succession Act of 1925 deals with testamentary succession and wills. It stretches for a
total of 134 sections, from Section 59 till Section 191, meticulously dealing with all the
technicalities of making a will. According to Section 59 of the Indian Succession Act of 1925,
Every person of sound mind not being a minor may dispose of his property by will 38. A Conjoint
reading of Explanations II and III of S. 59 of this Act make it clear that an insane person cannot
make a will, however, if the person is only occasionally of an unsound mind, they make a will
when they are of sound mind and dispose of their share of the property. The sections within this
part that deal with the making of wills, contain provisions for all technicalities that need to be
followed, such as the bequests that can be wilfully made, formalities that need to be followed,
capacity to make a will, and so on.

36
(2005) 3 SCC 636
37
Sri S. Vasu deva, Succession under Indian Succession Act 1925 in respect of Christians, p. 4
https://districts.ecourts.gov.in/sites/default/files/team%20ii.pdf

38
S. 59, Indian Succession Act, 1925

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 4. CONCLUSION

India has a sizable population of Christians, estimated to be approximately 2.4 million people.
Thus, appropriate codification and its development becomes a legitimate concern for the legal
system of the country. This paper sought to look into various facets of Christian Law in
succession and how they have developed through the course of time. The various relevant
concepts that have been looked into are the major premises of the law in existence in the country.

Many arguments have been advanced in favour of a more custom based and personalised
interpretation of Christian Law of succession, or for any Personal Law, for that matter. However,
India has nearly succeeded in maintaining this balance between cultural preservation along with
legal codification to the greatest extent feasible. It is exceedingly clear that the Indian Succession
Act of 1925 is the primary authority with regard to Christians. However, the basis of such a
formation was in itself the varying customary practices and these were the very practices that
were codified to form a Succession Act in 1865, which was eventually properly codified and
conglomerated with other legislations based off of these customary practices in the year 1925.
The discussion between governance of personal laws, such as laws of succession and inheritance,
thus, cannot be looked at from a completely uniform perspective, as to do away with these
customs, as long as they are not against morality, would be a major downgrade for our cultural
heritage and diversity.

Thus, in a nutshell, it can be said that the overall Christian Laws of Succession is a dynamic set
of law. It has various rights, in order to protect certain interests, pertaining to Widows,
illegitimate children and so on and so forth. It seeks to properly define testamentary and intestate
succession to avoid confusion. The codified law under the Indian Succession Act of 1925 does
all this, however, while trying to keep the essence of the Christian Custom alive.

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 5. BIBLIOGRAPHY

1. JUDGEMENT DATABASES:

 Supreme Today

 SCC Online

 Indian Kanoon

2. ARTICLES AND REPORTS:

 Sri S. Vasu deva, Succession under Indian Succession Act 1925 in respect of Christians,
https://districts.ecourts.gov.in/sites/default/files/team%20ii.pdf

 Vijender Kumar, Matrimonial Property Law in India : Need of the Hour, Vol. 57, Journal
of the Indian Law Institute, 500, : https://www.jstor.org/stable/44782798, last seen on
12/12/2020

 All Answers ltd, 'Christian Law of Succession' (LawTeacher.net)

https://www.lawteacher.net/free-law-essays/property-trusts/christian-law-of-
succession.php?vref=1, last seen on 8/12/2020

 Sri. Sk. Ziauddin, Succession under Indian Succession Act 1925 in respect of Christians,
https://districts.ecourts.gov.in/sites/default/files/christianlawjcjplkd.pdf

 Nandini Chatterjee, : The Emergence Of Christian Personal Law In Colonial India,

Cambridge University Press, 2010, https://www.jstor.org/stable/40926527

 Paras Diwan, Shailendra Jain & Piyush Deewani, Law of Intestate & Testamentary
Succession, Universal Law Publishing Co. Pvt. Ltd., 255 (2006)

 Vijender Kumar, Matrimonial Property Law in India : Need of the Hour, Vol. 57, Journal
of the Indian Law Institute, 500, https://www.jstor.org/stable/44782798, last seen on
12/12/2020

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3. LAW COMMISSION REPORTS:

 247th Law Commission Of India Report, Sections 41 to 48 of the Indian Succession Act,
192, https://lawcommissionofindia.nic.in/reports/Report247.pdf

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