CHRISTIAN LAW OF SUCCESSION: A CRITICAL STUDY

504 Family Law-II

Submitted by

Ambujesh Upamanyu

SM0121006

3rd Year, 5th Semester

Submitted to

Kaustav Choudhoury

Guest Faculty of Law

National Law University and Judicial Academy, Assam

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Contents

Table of Cases
Table of Statutes
Table of Abbreviations
I. Introduction
Aim(s)
Objective(s)
Scope and Limitations
Review of Literature
Research Questions
Research Methodology
II. Historical Aspect Of The Indian Succession Act, 1925
III. Christian Law Of Intestate Succession
In Case of Widow(er)
In Case of Lineal Descendants
When the Intestate Leaves behind Children
When the Intestate Leaves behind Grandchildren
When the Intestate leaves behind Children, Grandchildren and Great Grandchildren
In case of kindred
IV. The Entitlements Of Property For Christian Women In Travancore And Cochin
Judicial Responses to challenges to Travancore Christian Succession Act, 1916 and
Cochin Christian Succession Act, 1921
Mary Roy case and its aftermath
V. Critical Study Of The Indian Succession Act, 1925
247th Law Commission of India Report on Indian Succession Act, 1925 affecting
Rights of Mother
VI. Conclusion
Bibliography

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Table of Cases
C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, 1996 AIR 1697
D. Chelliah Nadar and Anr. v. G. Lalita Bai, AIR1978 Mad 66
Emma Agnes Smith v Thomal Massey (1906) ILR 30 Bom 500
John Vallamattom and Ors. v. Union of India, (2003) 6 SCC 611
Joseph v Jeseph Annamma,1979 KLT 322
Kurien Augusty v. Devassy Aley, 1956 KLT 559
Mary Roy v. State of Kerala, AIR 1986 SC 1011
Neelakanta Pillai v. Abraham, 1963 KLT 271
Sarla Mudgal v. Union of India, (1995) 3 SCC 635
Sebastian George v. Narayan Pillai 1962 KLT 649
Shayara Bano v. Union of India, AIR 2017 9 SCC 1
Solomon v. Muthiah, (1974) 1MLJ 53
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84

Table of Statutes
Travancore Christian Succession Act, 1916,
Cochin Christian Succession Act 1921
Indian Succession Act, 1925
Special Marriage Act, 1955
Hindu Succession Act, 1956

Table of Abbreviations

AIR All India Reporter

& And

Anr Another

CJ Chief Justice

Govt. Government

H.C High Court

ISA Indian Succession Act, 1925

Ors. Others

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p. Page

SC Supreme Court

SCC Supreme Court Case

v. Versus

Vol. Volume

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I. INTRODUCTION

Succession, also known as inheritance, pertains to the transmission of assets from a deceased
person to their heirs after their demise. In India, Christianity stands as the third most
practiced religion, constituting 2.30% of the population, following Hinduism and Islam. It is
crucial to emphasize the diverse denominations within the country, encompassing the Roman
Catholic Church, Syro-Malabar Catholic Church, and various Protestant Churches like the
Church of South India, the Marthoma Syrian Church, and the Presbyterian Church of India,
among others.1

The Christian Succession Law in India operates within the guidelines established by the
Indian Succession Act of 1925. However, for Indian Christians, the intricacies of inheritance
laws are further complicated by the inclusion of domicile as a criterion for the application of
these laws. Prior to January 1986, Christians in the Kerala State were governed by two
distinct Acts. Cochin domiciled Christians followed the Cochin Christian Succession Act of
1921, while Travancore Christians adhered to the Travancore Christian Succession Act of
1916. These Acts have been repealed, and Christians who were previously under their
jurisdiction are now subject to the general inheritance framework outlined in the Indian
Succession Act of 1925. Nevertheless, specific groups, such as Protestant and Tamil
Christians residing in particular taluks, still adhere to their respective customary laws.
Christians in Goa and the Union Territories of Daman and Diu follow the Portuguese Civil
Code of 1867, while those in Pondicherry may be influenced by the French Civil Code of
1804 (known as "Renocants"), customary law, or the Indian Succession Act.

Similarly, the Khasis, Jaintias, and Garos living in Meghalaya are not bound by the
provisions of the Indian Succession Act; instead, they follow their traditional matrilineal
inheritance system. This exemption is protected by both the Constitution of India and Section
29(2) of the Indian Succession Act, 1925. In a comparable fashion, Christians in Kerala had
their own unique succession laws, but after 1951, they shifted to being regulated by the
Indian Succession Act, 1925.

1
Law Commission of India, Sections 41 to 48 of the Indian Succession Act, 1925 - Proposed Reforms (Law
Com No 247, 2014) 1. The composition of the Law Commission of India was Justice A. P. Shah, Chairman;
Justice S. N. Kapoor, Justice Usha Mehra and Prof. (Dr.) Moolchand Sharma, Members; Dr. S. S. Chahar,
Member-Secretary; P. K. Malhotra and Dr. Sanjay Singh, Ex-offcio Members.

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The Indian Succession Act of 1925, driven by a patriarchal perspective, perpetuates gender-
based injustice in intestate succession, particularly against women. The paradox lies in the
continuity of a law crafted over a century and a half ago, which discriminates against women
in terms of succession rights. The entitlement of a Christian widow's share varies based on
the presence or absence of lineal descendants. She gains rights over the entire property only
when there is an absence of distant kindred of the deceased husband, extending up to great-
great-uncle or great-uncle's son. A widowed daughter-in-law does not have any claim to her
father-in-law's property. The position of the mother is relegated to a lower status, inheriting
only in the absence of the father, and even when she does inherit, her rights are shared with
the deceased's brother and sister. There appears to be no justifiable reason to uphold such
provisions that deny equal rights to women.

In this project, the investigator delves into the historical dimension of the Indian Succession
Act, 1925, conducting a thorough examination of its provisions. The researcher also
scrutinizes the Christian succession laws of Travancore and Cochin, along with an analysis of
the judicial reactions to legal challenges against these succession laws, with a particular focus
on the Mary Roy's Case. Lastly, a critical evaluation of the Indian Succession Act forms a
significant part of the researcher's study.

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AIM(S)
The aim of this project is to critically study the Christian Succession Laws in India with
special emphasis on the Indian Succession Act, 1925 and also to study the historical
background of the ISA, 1925 along with the succession laws of Tranvacore and Cochin.

OBJECTIVE(S)
● To study the historical background of the ISA, 1925.
● To study the provisions of the ISA, 1925.
● To study the succession laws of Tranvacore and Cochin and the judicial response to
the challenges these laws possessed.
● To study the drawbacks of the Indian Succession Act, 1925.

SCOPE AND LIMITATIONS

The scope of the project is limited to study the historical background, the provisions of the
ISA, 1925, the succession laws of Tranvacore and Cochin and the drawbacks of the ISA,
1925. The researcher has taken into consideration the relevant provisions of the ISA, 1925,
Travancore Christian Succession Act, 1916, Cochin Christian Succession Act, 1921 and the
Hindu Succession Act, 1956.

REVIEW OF LITERATURE

Dr. Gitanjali Ghosh2 in her article discusses the provisions of succession under the Indian
Succession Act (ISA), 1925. The author discusses the ways christian woman inherits
mentioning the relevant provisions of the Indian Succession Act. In her article she draws a
comparison of the customary inheritance rights of Khasis and Mizos with that of the Christian
succession laws of India. Thus, this article is an immensely relevant read for writing the
project.

Archana Mishra3, in her article critically examines the law of inheritance of Christian women
in India. She critically examines the provisions of the ISA, 1925 and how these provisions are

2
Dr. Gitanjali Ghosh, DE-CONSTRUCTING INHERITANCE RIGHTS OF WOMEN UNDER TRIBAL
CUSTOMARY LAWS: A COMPARATIVE STUDY OF KHASI AND MIZO TRIBES, Centre for Women and
the Law, National Law School of India University, p. 141-162, Vol. 8, 2020
3
Archana Mishra, Breaking Silence - Christian Women’s Inheritance Rights under Indian Succession Act,
1925, SSRN eLibrary, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1915966 (last visited 16 Nov, 2023)

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gender biased. She also discusses about the Tranvacore and Cochin Succession laws and how
judiciary answered the questions the challenges these laws possessed. She also elucidates the
various Law Commission reports regarding the Christian Succession Laws. Thus, this article
is an immensely relevant read for the writing of this project.

J. M.L. Starli4, in his article, discusses critically the inheritance rights of women in India. He
discusses all the provisions for the hindu, christian, muslim and parsi women and their right
of inheritance. He elucidates with the various landmark judicial precedents that made a mark
in maintaining gender equality throughout the country. Thus, it is an immensely relevant read
for the writing of this project.

RESEARCH QUESTION(S)
1. What is the historical background of the ISA, 1925?
2. What are the relevant provisions of the ISA, 1925 dealing with Christian Succession?
3. What are the rights of women under Christian laws of Tranvacore and Cochin and the
judicial response to the challenges they possessed?
4. What are the drawbacks of the ISA, 1925?

RESEARCH METHODOLOGY
The research methodology employed for this study involved the doctrinal approach.
Extensive references to various books and online sources were made throughout the project.
The doctrinal method primarily relies on library-based research, focusing on books, texts, and
documents. The researcher utilized both descriptive and analytical modes within the doctrinal
research framework.
This project has relied on a combination of library-based resources and online sources.
The Bluebook 20th Edition Citation method has been chosen by the researcher for citation.

4
J. Starli, M.L., CRITICAL ANALYSIS OF DISPARITY IN PROPERTY RIGHTS OF WOMEN IN INDIA A
GLIMPSE, Tamil Nadu State Judicial Academy,
https://www.tnsja.tn.gov.in/article/11%20Starli%20female%20property%20rights%20article%20-
%20corrected.pdf (last visited 16 Nov, 2023)

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II. HISTORICAL ASPECT OF THE INDIAN SUCCESSION ACT, 1925

Before 1865, considerable ambiguity existed regarding the succession laws applicable to
individuals other than Hindus and Muslims. While Hindus and Muslims were subject to their
distinct personal laws, the legal standing of Indian Christians, Parsis, Europeans domiciled in
India, Eurasians, Jews, Armenians, and others remained uncertain. In Presidency towns,
English law was generally applied, but the situation in the Mofussil was unclear. Courts
occasionally applied the law of the parties' country or their observed customs, which lacked
complete certainty5. Recognizing the necessity for a unified Indian law on succession,
excluding Hindus and Muslims, the Third Law Commission spearheaded the enactment of
the Indian Succession Act, 1865 (ISA, 1865). This legislation, grounded in English law,
aimed to be applicable to various Indian communities that lacked their own testamentary or
intestate succession laws. The primary goal was to consolidate the myriad existing laws
rather than amalgamate them. Intestate succession for Hindus, Muslims, Buddhists, Sikhs, or
Jainas, as well as testamentary succession for Muslims, remained governed by their personal
laws, explicitly excluded from the ambit of ISA, 1865. Consequently, its application was
restricted to specific communities, including certain Christians, Parsis, Europeans domiciled
in India, Eurasians, Jews, Armenians, and others. ISA, 1865 was later amalgamated into the
Indian Succession Act, 1925 (ISA, 1925). During this consolidation, two distinct schemes for
intestate succession were adopted: one addressing succession rights for individuals like
Indian Christians, Jews, and those married under the Special Marriage Act, 1955, and another
for Parsis6. Considering the population sizes of the religious communities governed by the
Act, the first scheme notably impacts intestate succession for the Christian community.

The fundamental provisions in the Indian Succession Act of 1925 regarding intestate
succession are based on English law. Essential aspects of this legislation include: (1) the
elimination of gender-based discrimination among heirs, (2) the absence of distinction
between individuals related by full blood and those related by half blood, and (3) the non-
recognition of relationships through adoption7. Both movable and immovable property can be
inherited under the ISA, 1925, by kindred. In this context, kindred only encompasses

5
M.P. Jain, Outlines of Indian Legal and Constitutional History ,Lexisnexis, India, ed.2006, p. 470
6
“Towards Equality”, Report of the Committee on the Status of Women in India, Ministry of Education &
Social Welfare Department of Social Welfare, Government of India, December 1974
7
B. Sivaramayya, “The Indian Succession Act, 1925”, in K. D. Gangrade (ed.), Social legislation in India, p. 89
Vol. II , Concept Publishing Company Pvt. Ltd.., New Delhi, ed.1978 (reprinted 2011)

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relations by blood through lawful wedlock, restricting the terms 'wife,' 'husband,' or 'lineal
descendants' to legitimate relationships8. The Act sets forth a consistent guideline for the
distribution of property for both men and women who die intestate. In the event of a wife's
intestate demise, the surviving husband enjoys identical rights to her property, just as a
widow does over her husband's property if he dies intestate. The inherited shares by heirs are
unqualified and can be freely transferred, ensuring that anything a woman inherits becomes
her complete property. Prior to the Hindu Succession Act of 1956, Hindu law typically
provided women with restricted rights in immovable property9, with absolute rights confined
to stridhan10. In accordance with Muslim law, women held a share along with other heirs, and
the size of their share depended on whether they had children or not. The recognition of
absolute rights for women in property in 1865 marked a noteworthy advancement at a time
when societal norms were patriarchal, and personal laws were inclined toward men,
exhibiting progress. Nonetheless, the Act has also introduced certain gaps that demonstrate
discriminatory inclinations towards women.

8
Emma Agnes Smith v Thomal Massey (1906) ILR 30 Bom 500; Sarah Ezra In Re AIR 1931 Cal 560
9
According to the Mitakshara school of Hindu law, women inheriting immovable property, whether through
inheritance, partition, or other means, typically had restricted enjoyment rights during their lifetime. They did
not possess the authority to transfer the property, and upon their demise, it would be inherited by the heirs of the
last property owner.
10
Streedhanam pertains to property bestowed upon a woman by her parents or relatives, along with the assets
she acquires personally during marriage ceremonies. In this scenario, women possessed complete ownership
rights, which encompassed the ability to dispose of such property.

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III. CHRISTIAN LAW OF INTESTATE SUCCESSION

Part V Chapter II of the Indian Succession Act of 1925 delineates provisions for the
succession of property in situations where individuals pass away without a will, specifically
pertaining to Christian intestates. Christian law recognizes three primary categories of heirs:
the surviving spouse, lineal descendants (comprising children, grandchildren, great-
grandchildren, and so forth, spanning multiple generations), and kindred (encompassing
relatives such as parents, siblings, and those connected by blood or adoption). In summary,
when a Christian passes away without a will, these individuals are eligible heirs:
● Wife
● Husband
● Kindred
● Lineal descendant
Section 34 specifies that in the absence of a widow, the property of the intestate is inherited
by the lineal descendants. If there are no lineal descendants, individuals related to the
deceased inherit the property. When there are no eligible heirs, the property goes to the
Government. Essentially, the widow and lineal descendants consistently take precedence in
succession, and kindred are excluded when lineal descendants are present. Section 35
explicitly states that a widower has the same rights in his deceased wife's property as a
widow has in her deceased husband's property.

In Case of Widow(er)

Section 33 provides guidelines for situations where an intestate person leaves behind a
widow, lineal descendants, and kindred in various combinations. For example, if the intestate
has a widow and lineal descendants, the widow is entitled to one-third of the property, and
the remaining two-thirds go to the lineal descendants11. If the intestate has no lineal
descendants but has kindred and a widow, half of the property is allocated to the widow, and
the remaining half is inherited by the kindred12. Moreover, if the intestate has neither lineal
descendants nor kindred, the entire property is inherited by the widow13.

11
Indian Succession Act, 1925 § 33(a)
12
Indian Succession Act, 1925 § 33(b)
13
Indian Succession Act, 1925 § 33(c)

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In Case of Lineal Descendants

Sections 36 to 40 establish guidelines for the distribution of property when an intestate

individual has left behind lineal descendants. It is essential to subtract the share of the
widow(er), if present, before dividing the remaining property among the lineal descendants.

When the Intestate Leaves behind Children

Section 3714 stipulates that if the intestate has left behind a child or children, and no more
distant lineal descendant through a predeceased child, the property shall be inherited by the
child. In cases where there are multiple children, the property shall be divided equally among
all of them.

Illustration. John dies intestate leaving behind three sons: Warner, Marsh, Smith and a
daughter Perry. Now each of them will get an equal share in the property, i.e, ¼ each.

When the Intestate Leaves behind Grandchildren

Section 3815 states that if the intestate did not leave behind children but has a grandchild or
grandchildren, with no more distant descendant through a predeceased grandchild, the
property shall be inherited by the grandchild. In case of multiple grandchildren, the property
shall be equally divided among them.

Illustration: John dies leaving behind his grandchildrens: Thomas, Scott, Jeremy, Mary,
Porter and Amy. His children Warner, Marsh, Smith and Perry have pre-deceased him. In
this case, his property is inherited equally by his grandchildrens, i.e., ⅙ each.

When the Intestate Leaves behind Great Grandchildren

14
Indian Succession Act, 1925 § 37
15
Indian Succession Act, 1925 § 38

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Likewise, the property will be inherited by the lineal descendants closest in degree, whether
they are all great-grandchildren to the intestate or all in a more distant degree, in cases where
the intestate's children and grandchildren have predeceased him.16

Illustration: Upon William's death, with his children and grandchildren predeceasing him, he
leaves behind his great-grandchildren: Lauren, Barry, Fred, Gwen, Jill, Martin, and
Anthony. As they are all in the same degree of kinship, they will inherit his property equally,
with each receiving a share of 1/7.

When the Intestate leaves behind Children, Grandchildren and Great Grandchildren

Section 40(1) specifies that if an individual dies without a will and has lineal descendants
who are not all in the same degree of kinship, and the lineal descendants through whom the
more distant relatives are descended are no longer alive, the estate will be divided into equal
shares corresponding to the number of lineal descendants closest in kinship to the deceased
(whether living or deceased). Each share will be allocated to the lineal descendants in the
closest degree of kinship to the deceased, as well as to the deceased lineal descendants. The
share designated for the deceased lineal descendants will be inherited by their surviving child
or children, or more distant lineal descendants, who will inherit the portion that their parent
or parents would have received if they had outlived the deceased individual17.

In Case of Kindred

Sections 41 to 48 outline regulations for the distribution of assets in cases involving kindred.
If an individual who dies without a will has no lineal descendants, the property will be
inherited by the kindred. In the presence of a surviving widow or widower, their share will be
subtracted before the distribution takes place among the kindred.

If the deceased individual has a living father, the father inherits the entire estate, thereby
excluding all other relatives18. In contrast, if the father has passed away, and the deceased is
survived by a mother, living siblings, and children of deceased siblings, the property will be

16
Indian Succession Act, 1925 § 39
17
Indian Succession Act, 1925 § 40(2)
18
Indian Succession Act, 1925 § 42

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evenly divided among the mother, surviving siblings, and the children of siblings who are no
longer alive19. It is important to highlight that the children of predeceased siblings will inherit
shares equivalent to what their respective parents would have received had they been alive at
the time of the intestate's death.

If the father, brothers, and sisters of the deceased individual are no longer alive, and the
remaining heirs consist solely of the mother and the children of predeceased brothers and
sisters, they will inherit equal shares20. It is important to emphasize that these children will
inherit shares equivalent to what their respective parents would have received had they been
alive at the time of the intestate's death.

If the deceased individual has only left the mother without any other surviving relatives, such
as the father, siblings, or children of predeceased siblings, the mother will inherit the entire
estate. Likewise, if the deceased did not leave behind a father, mother, or lineal descendants,
but only siblings and the children of predeceased siblings, the property will be equally
divided among them. It is important to emphasize that these children will inherit shares
proportional to what their respective parents would have received if alive at the time of the
intestate's death. Additionally, half-brothers and half-sisters, born of different fathers and the
same mother or different mothers and the same father, have equal inheritance rights as full
brothers and sisters. This principle applies universally to all relatives of half-blood.

Section 48 specifies that in cases where the deceased individual has not left any lineal
descendants, parents, siblings, or sisters, the estate will be evenly distributed among the
relatives who are in the closest degree of kinship to the deceased.

19
Indian Succession Act, 1925 § 43
20
Indian Succession Act, 1925, § 46

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IV. THE ENTITLEMENTS OF PROPERTY FOR CHRISTIAN WOMEN

IN TRAVANCORE AND COCHIN

The legislative authorities in Travancore and Cochin formulated succession laws in

accordance with the practices prevalent in Christian communities, specifically the Travancore
Christian Succession Act, 1916, and the Cochin Christian Succession Act, 1921. In these
areas, local Christians generally followed the patriarchal principles inherent in customary
Hindu law regarding succession, leading to certain inequities in inheritance rights as outlined
in these Acts. These clauses showcased discriminatory practices, especially against women,
placing them in a subordinate position that contradicted gender equality. Men enjoyed
unrestricted control over property distribution, with no limitations on their testamentary
capacity, even inheriting property despite distant relations. Christian women encountered
exclusion from inheritance due to the Acts mirroring Hindu customs, resulting in the
deprivation of their property rights. As per the Travancore Christian Succession Act, 1916, if
there was no will, the entire property of a man would be inherited by his sons, excluding
daughters. Additionally, a Christian widow had only a transferable life estate in half of her
deceased husband's immovable property21, with no right to represent his estate22. This life
estate terminated upon her death or remarriage23, even though it didn't limit her entitlement to
demand a portion and receive a distinct allocation of assets24. Despite having no right to
alienate the property, she could transfer her life interest, which ceased upon her death or
remarriage25. A daughter's right to the intestate's property varied from that of a son, as she
was eligible for one-fourth of the son's share or Rs. 5,000, whichever was lower. This
entitlement became null and void if streedhanam was given or assured, restricting the
daughter's claim to properties valued up to Rs. 5,000.26 In the Cochin area, under the Cochin
Act, a daughter was a sharer but entitled to only one-third of a son's share, subject to
exclusion by other male heirs if she received streedhanam27. The denial of women's property

21
According to Section 24 of the Travancore Christian Succession Act, 1916, a widow who gained entitlement
to any immovable property under Section 16 or 17 was granted a life interest. Upon the conclusion of this life
interest, the property was to be distributed among the heirs of the original intestate, as if the holder of the life
estate had not outlived him.
22
Neelakanta Pillai v. Abraham, 1963 KLT 271
23
Sebastian George v. Narayan Pillai 1962 KLT 649
24
Joseph v Jeseph Annamma,1979 KLT 322
25
Neelakanta Pillai v. Abraham 1963 KLT 271
26
Travancore Christian Succession Act, 1916, § 28
27
Cochin Christian Succession Act 1921, § 3

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rights was justified by concerns about domestic disharmony and the potential for property
fragmentation arising from frequent litigation.

The Legislative Assembly of the State of Kerala introduced the "Christian Succession Acts
(Repeal) Bill, 1958," with the purpose of revoking the Travancore Christian Succession Act,
1916, and the Cochin Christian Succession Act, 1921. The accompanying "Statement of
Objects and Reasons" presented by Justice V.R. Krishna Iyer, highlighted the necessity for a
consistent law governing intestate succession among Christians throughout the state. The goal
was to eliminate the regional Travancore and Cochin Christian Succession Acts and establish
a unified legal framework applicable across the entire state. Although the Bill aimed to
subject all Christians in Kerala to the Indian Succession Act of 1925, it eventually lapsed.
Nonetheless, it emphasized the crucial need for enacting a uniform law for the entire state by
abolishing discriminatory succession laws present in specific regions of Kerala.

Judicial Responses to challenges to Travancore Christian Succession Act, 1916 and

Cochin Christian Succession Act, 1921

The discriminatory clauses in the 1916 Act encountered their first legal challenge in the
Travancore-Cochin High Court in the case of Kurien Augusty v. Devassy Aley28. In
addressing the query of whether the Travancore Christian Succession Regulation II of 1092
must be considered adopted by reference in accordance with the language in Section 29(2)29
of the Indian Succession Act, 1925, the High Court affirmed the legitimacy of the
Travancore-Christian Succession Regulation II of 1092. The court determined that this
Regulation was encompassed by the term "any other law for the time being in force" as
specified in Section 29(2) of the ISA, 1925, thereby integrating it into the ISA, 1925 itself. As
a result, it was not annulled by Section 6 of the Central Act III of 1951. The court highlighted
that the ISA, 1925 did not aim to interfere with the personal laws of communities having
established regulations for intestate succession. Even if Travancore was part of the former
British India, Part V of the ISA, 1925 would not be applicable to Christians in Travancore
who were governed by the Travancore Christian Succession Act, 1916. The court's stance on
the application of the ISA, 1925 for Syrian Christians was later affirmed in the case of

28
Kurien Augusty v. Devassy Aley, 1956 KLT 559
29
Section 29(2) of ISA, 1925 reads: “Save as provided in Sub-section (1) or by any other law for the time being
in force, the provisions of this Part shall constitute the law of India in all cases of intestacy."

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Solomon v. Muthiah30, heard by a Single Judge of the Madras High Court by expressing that
“the provisions of Part V are of universal application except in so far as that application has
been excluded by Sub-section (1) or any other law for the time being in force. The mere fact
that there is a custom relating to intestate succession or there is some other law dealing with
intestate succession will not lead to the exclusion of the applicability of the provisions of Part
V of the Indian Succession Act, 1925. From the very nature of the case, a custom cannot
exclude the applicability of the provisions of a particular statute. But a statute can do it. So
long as an existing statute has not excluded the applicability of Part V of the Indian
Succession Act, 1925, the provisions of the said Part V will apply”.

The ambiguity regarding the applicability of either the Travancore Act or the ISA, 1925
endured for Indian Christians in the case of D. Chelliah Nadar and Anr. v. G. Lalita Bai31 and
Anr. In this scenario, the Division Bench of the same High Court deviated from the position
taken in the Solomon case and affirmed the validity of the Travancore Act for Indian
Christians. The court held that Section 6 of the Part B States (Laws) Act did not require
identical laws but demanded correspondence with the Central Act. Despite both the Central
Act and the Travancore Regulation addressing intestate succession and covering similar
ground, the court argued that they were not corresponding laws for Section 6 purposes. This
determination was based on the ISA, 1925 not encompassing Travancore Christians governed
by the Travancore Regulation. The established legal position from decisions of the
Travancore-Cochin High Court and the Division Bench of the Madras High Court was that
the ISA, 1925 did not apply to Travancore-Cochin Christians. The Supreme Court ultimately
resolved this issue in Mary Roy v. State of Kerala32. The legal proceedings concerned the
constitutional validity of the Travancore Christian Succession Act, 1916, with contentions
that sections 24, 28, and 29 of the Act infringed upon Article 14 of the Constitution.
Additionally, it examined whether, following the enactment of the Part B States (Laws) Act
1951, the Travancore Act persisted as the governing law for intestate succession among the
Indian Christian Community in the erstwhile state of Travancore or if it fell under the
jurisdiction of the ISA, 1925. The Supreme Court expressly overturned the Kurien Augusty
case33, considering it not representative of good law. While reaffirming the Solomon case 34, it

30
Solomon v. Muthiah, (1974) 1MLJ 53
31
D. Chelliah Nadar and Anr. v. G. Lalita Bai, AIR1978 Mad 66
32
Mary Roy v. State of Kerala, AIR 1986 SC 1011
33
Supra 25
34
Supra 27

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clarified that the ISA, 1925 extended to the Part B State of Travancore-Cochin through
Section 3 of the Part B State (Laws) Act, 1951. Consequently, any law corresponding to the
Indian Succession Act, 1925 in force in Part B State of Travancore-Cochin before April 1,
1951, would stand wholly repealed. Since the Travancore Act was in force before April 1,
1951, corresponding to Chapter II of Part V of the ISA, 1925, it was deemed wholly repealed
upon the extension of the ISA, 1925 provisions to the former State of Travancore. The court
struck down discriminatory provisions on technical grounds but abstained from scrutinizing
them under the constitutional mandate of equality and non-discrimination based on gender as
per Articles 14 and 15 of the Constitution35.It determined that the Travancore Act ceased to
be effective from April 1, 1951, and, as of that date, the Indian Succession Act, 1925, became
applicable to Christians in the Travancore region of the State of Kerala for intestate
succession. Subsequent to the Mary Roy decision, the High Court of Kerala also held that the
Cochin Christian Succession Act, 1921, was repealed by the Part B States (Laws) Act, 1951.
Prior to the Mary Roy case, the ISA, 1925 applied to only 34% of India's Christian
population, but the ruling expanded its applicability to an additional 30% of India's Christian
population.36

Mary Roy case and its aftermath

The case specifically focused on the applicability of the ISA, 1925 to Part B States, without
directly addressing the issue of gender-based discrimination in property rights as a violation
of equality under the Constitution or declaring equal entitlement or co-sharing of property
between male and female heirs. However, the extension of ISA to Part B States eliminated
discriminatory provisions in the challenged Acts. Consequently, daughters can now inherit on
equal terms with sons, receiving an equivalent share, and the concept of streedhanam is no
longer relevant. Women now possess absolute property rights, including the right of
alienation. The Supreme Court's 1986 declaration that ISA, 1925 prevails over the
Travancore and Cochin Acts rendered property transactions under the 1916 and 1921 Acts
illegal37. In contrast to the Travancore and Cochin Acts, the Indian Succession Act lacked
provisions for probating wills until the Indian Succession (Amendment) Act, 2002 made it
mandatory for Indian Christians. Consequently, family settlements based on unprobated wills
35
Flavia Agnes, Family Law and Constitutional Claims, Oxford University Press, ed. 2011
36
C.A. Sebastian, “Gender Discrimination in the Law of Divorce and Succession among Christians”
available at http://dyuthi.cusat.ac.in/purl/3152 (last visited 16 November, 2023)
37
Sebastian Champappilly, “Christian Law of Succession and Mary Roy's case”, (1994) 4 SCC J-9

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became invalid from April 1, 1951, as per section 213. For cases of intestate succession,
partitions made under the Travancore Act lost validity, allowing daughters to claim their
rightful share and revisit previous partitions and family arrangements. The ruling led to a rise
in fathers allocating their entire property to sons through testamentary disposition during their
lifetimes to prevent daughters from inheriting and avoid the division of property into smaller
units. Daughters often find themselves compelled to sign documents settling their claims.
Recognizing this, there is a pressing need to amend the ISA, 1925 to introduce restrictions on
the right of testamentary disposition of property.

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V. CRITICAL STUDY OF THE INDIAN SUCCESSION ACT, 1925

The Act integrates Sections 42 to 48 from the Indian Succession Act of 1925 in conjunction
with the provisions outlined in Section 33(b)38. According to the latter, when there are no
lineal descendants of the intestate, a widow is entitled to half of the property, while the
remaining half is to be distributed according to Sections 42 to 48. However, the allocation of
the mother's share in the intestate's property is deemed significantly disproportionate
compared to that of the father due to the absence of a fixed share for the mother. Instead, the
mother's share depends on the number of siblings of the intestate.

Section 4239 specifies that if the father of the intestate is alive, the entire property goes to
him, completely excluding the mother from consideration, despite both having equal parental
status. In the event of the father's death, Section 43 addresses succession, prioritizing either of
the siblings over the mother40. Similarly, Section 44 presents a scenario that disregards the
mother41. Only in Section 45 is the mother considered, but unfortunately, she is placed on an
equal footing with the intestate's nephew or niece42.

In the end, if the father, brother, sister, nephew, and niece of the intestate are pre-deceased or
non-existing, Section 46 of the Act grants absolute property rights to the mother43. Despite
sharing the closest bond of relation with the intestate, a chain of five relations is prioritized
over the mother according to the legislation. Furthermore, Section 48 employs a per capita
approach for property distribution. For instance, if two brothers, A and B, have passed away,
leaving A with two daughters and B with one daughter, Section 47 dictates that A and B
should have received an equal share of the property44. Ideally, A's daughters should inherit
their father's property, while B's daughter, having no siblings, should receive only half of her
father's property. However, due to the per capita distribution method, B's daughter will
receive only one-third of the property, and her father's share will be allocated to someone
else, which is inherently unjust.

38
Indian Succession Act, 1925, § 33(b)
39
Indian Succession Act, 1925, § 42
40
Indian Succession Act, 1925, § 43
41
Indian Succession Act, 1925, § 44
42
Indian Succession Act, 1925, § 45
43
Indian Succession Act, 1925, § 46
44
Indian Succession Act, 1925, § 47

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The globally recognized principle of granting women equality with their male counterparts
has received acknowledgment from the Supreme Court45, as stated in C. Masilamani
Mudaliar v Idol of Sri Swaminathaswami Thirukoil46. In this case, the Supreme Court
asserted that personal laws conferring inferior status on women are contrary to the concept of
equality. Additionally, in Sarla Mudgal47, the Supreme Court commented that religious
practices violating human rights and dignity, leading to the deprivation of civil and material
freedoms, are not exercises of autonomy but forms of oppression. It is a miscarriage of justice
that the provisions of the Indian Succession Act of 1925 persist without alteration.

In the context of addressing the unequal status of Christian women, it is noteworthy that the
legal reforms in Hindu succession and Muslim succession laws have far surpassed any
endeavors aimed at resolving the sub-equal status of Christian women. A key example
supporting this argument is the amendment to Section 6 of the Hindu Succession Act, 1956,
which transformed the foundational principles of the Mitakshara school of thought by
elevating daughters to the same status as sons48. Similarly, the enactment of the Muslim
Women (Protection of Rights on Marriage) Act, 2019 marked a departure from traditional
Muslim practices, showcasing the legislature's ability and willingness to deviate from
conventional social norms in the cases of Hindus and Muslims. Given this departure, there is
no justifiable reason for the legislature to refrain from intervening in Christian succession.

Additionally, the aforementioned Muslim Women (Protection of Rights on Marriage) Act of

2019 was a response to widespread demand and the precedent set by the judgment in Shayara
Bano v. Union of India49. This judgment introduced the concept of judicial review in certain
serious matters involving personal laws, deviating from the earlier landmark decision in State
of Bombay v. Narasu Appa Mali50, where the court deemed personal laws impervious to
judicial intervention. The court, in Shayara Bano, exceeded the limits established by Narasu
Appa Mali, allowing for future petitions to prevent erroneous religious practices.
Consequently, judicial intervention can be considered a viable avenue for scrutinizing the
Indian Succession Act, 1925, should the legislature persist in neglecting the matter.

45
John Vallamattom and Ors. v. Union of India, (2003) 6 SCC 611
46
C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, 1996 AIR 1697
47
Sarla Mudgal v. Union of India, (1995) 3 SCC 635
48
Hindu Succession Act, 1956, § 6
49
Shayara Bano v. Union of India, AIR 2017 9 SCC 1
50
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84

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247th Law Commission of India Report on Indian Succession Act, 1925 affecting Rights of
Mother

The current provisions governing the mother's inheritance rights under the Indian Succession
Act are outdated, exhibiting an antiquated approach that reinforces gender-based distinctions,
thereby being prejudicial and unjust towards the status of women and Christian mothers of
deceased intestates51. Acknowledging the inequities in the mother's inheritance rights
outlined in the Indian Succession Act, the Law Commission of India recommends the
following revisions:

1. After allocating half of the share to the widow, the mother is entitled to an equal share with
the father in the absence of lineal descendants of the deceased.

2. In the event of either parent's demise, the surviving parent is to inherit the entire remaining
half after designating half to the widow.

3. In the absence of both parents, the remaining half, post-allocating the other half to the
widow, is to be evenly distributed among the brothers and sisters.

4. If there are no parents, brothers, or sisters, the share is to be divided per-stirpe among the
children of the deceased's brothers and sisters.

5. When distributing the property among the children of a predeceased brother or predeceased
sister as distant kindred, the property should be divided per stirpe instead of per capita to
maintain uniformity with other provisions.

Implementing these modifications would elevate the status of the mother, granting her a
position equivalent to that afforded in other personal laws. By removing bias against females,
the promotion of the mother to an equal standing with the father in inheritance matters would
mitigate unjust treatment, particularly in placing her on par with deceased brothers and
sisters. These modifications play a vital role in aligning with present-day norms and

51
247th Report of Law Commission of India on Proposed reforms in sections 41-48 of Indian Succession Act,
1925 (September 2014) submitted to the Government of India on 12th September 2014

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addressing the apprehensions of the Christian and other communities regulated by the ISA,
1925.

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VI. CONCLUSION

The research indicates a compelling need for legislative intervention to modify specific
sections of the Indian Succession Act, 1925, if genuine gender justice is to be achieved.
Based on the research findings, it can be asserted that the recommendations put forth by the
Law Commission are appropriate for reforming Christian succession and are recommended
for adoption. In the event that the legislature persists in its insensitive neglect, judicial
intervention may become necessary to delve into the realm of social justice, guided by the
inherent principles of justice, equity, and good conscience. While the judiciary venturing into
social justice might be unexpected, it is not without precedent.

In conclusion, the enduring efforts and struggles over the years have yet to yield tangible
results regarding the status of Christian women in India. Despite the influence of feminist
jurisprudence in improving the situation of women within the sphere of Hindu and Muslim
personal law, Christian women have not received the level of attention they rightfully
deserve. In the current discourse on gender equality, it is disheartening for India to
acknowledge that women, as a collective, continue to be deprived of equal treatment due to
religious laws.

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BIBLIOGRAPHY

BOOKS

1. Poonam Pradhan Saxena, FAMILY LAW II (3d ed. LexisNexis 2011).

2. Sarasu Esther Thomas, LAW FOR CHRISTIANS IN CONTEMPORARY INDIA
(BTESSC 2014).

ARTICLES
1. Dr. Gitanjali Ghosh, DE-CONSTRUCTING INHERITANCE RIGHTS OF WOMEN
UNDER TRIBAL CUSTOMARY LAWS: A COMPARATIVE STUDY OF KHASI
AND MIZO TRIBES, Centre for Women and the Law, National Law School of India
University, p. 141-162, Vol. 8, 2020
2. Archana Mishra, Breaking Silence - Christian Women’s Inheritance Rights under
Indian Succession Act, 1925, SSRN eLibrary,
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1915966 (last visited 16 Nov,
2023)
3. J. Starli, M.L., CRITICAL ANALYSIS OF DISPARITY IN PROPERTY RIGHTS
OF WOMEN IN INDIA A GLIMPSE, Tamil Nadu State Judicial Academy,
https://www.tnsja.tn.gov.in/article/11%20Starli%20female%20property%20rights%2
0article%20-%20corrected.pdf (last visited 16 Nov, 2023)
4. B. Sivaramayya, “The Indian Succession Act, 1925”, in K. D. Gangrade (ed.), Social
legislation in India, p. 89 Vol. II , Concept Publishing Company Pvt. Ltd.., New
Delhi, ed.1978 (reprinted 2011)
5. Sebastian Champappilly, “Christian Law of Succession and Mary Roy's case”, (1994)
4 SCC J-9
6. C.A. Sebastian, “Gender Discrimination in the Law of Divorce and Succession among
Christians” available at http://dyuthi.cusat.ac.in/purl/3152 (last visited 16 November,
2023)

WEBSITES
● www.scconline.com
● www.manupatra.com

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● www.livelaw.com
● www.lawhelpline.in
● www.thelawblog.in

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