The Road to the Hindu Marriage Act 1955: Indian Succession Act 1925

The Hindu Disposition of Property Act of 1916 permitted the creation of an interest of any specific person(s) who had not been born yet in the property owned by any Hindu person in India. The language used in the law is "Subject to the limitations and provisions specified in this Act, no disposition of property by a Hindu, whether by transfer inter vivos or by will shall be invalid by reason only that any person for whose benefit it may have been made was not in existence at the date of such disposition". This lends itself to the meaning that persons envisaged in this Act include legal/artificial/juridical persons as well as real/natural persons. The limitations which have been mentioned can be seen in the Indian Succession Act (promulgated originally in 1865, and again in 1925, subsequent to this Act) and the Transfer of Property Act of 1882, amended in 1929.

The Madras Children Act of 1920 gave certain powers and obligations to parents in regard to their children. Parents of children with behavioural problems could now report their children as 'uncontrollable' and have them admitted to government facilities. Parents were rendered liable for punishment if they put their children in immoral or dangerous surroundings or neglected them or incited them to indulge in anti-social activities. Similar Acts were passed in Bengal in 1922 and Bombay in 1924.

The Indian Succession Act of 1925 was an important set of laws for the Christian community, with certain parts being applicable to members of other religions also. The Act displayed progressive thinking and tried to advance the gains made through secular Acts like the Special Marriage Act of 1872; although there remained room to think or at the very least to argue that perhaps the imperialists were more concerned about the welfare of followers of their own religion –being the Christian religion– than adherents of Hinduism, Sikhism, Jainism, or other religions predominant in India. All followers of Indian religions were painted with one brush –an act which has led to a lot of heartburn in members of a number of communities, notably amongst Sikhs. There was however a separate section for Parsis or Zoroastrians.

The Indian Succession Act was a step in the direction of the Hindu Marriage Act of 1955, and a very big step towards the Hindu Succession Act of 1956, where it would be seen in slightly changed appearance.

The Act defined who could make a will and excluded lunatics or people who were not in their senses, but included all types of otherwise disabled people who were lucid in their thinking. It also enabled all Indian women to make wills regarding any and all properties which they were entitled to alienate during their own lifetime. It defined consanguinity in very detailed terms for the purpose of inheritance in the event of an intestate's death. It defined degrees of kindred and a method for computing them, and had separate sections on consanguinity by birth and as a consequence of marriage of self or others. It made it clear that persons who were similarly related to a deceased person would have to be treated similarly in the event of his or her death. These are principles which would be seen again and again over time in various laws, including in some small measure in the Hindu Marriage Act of 1955 and in close to facsimile form in the Hindu Succession Act of 1956.

The Act also made provisions for succession in various permutations which could eventuate upon an intestate's death. It took care of situations where one or more out of the intestate's wife, parents, children, lineal descendants, lineal ascendants, brothers, sisters, in-laws, and natural successors of these categories of persons predeceased him or her. Veritable tables of precedence were laid down for various categories of people. It provided rules for attestation of wills. It also allowed revocation, alteration and revival of wills. It defined privileged wills and laid down the eligibility and the procedure for preparing such wills. It also laid down the law regarding executors of wills, as well as probate of wills.

The new law permitted ambiguity and errors in wills within limits and attempted to describe methods to remove and rectify errors and ambiguities, and to read a will correctly inspite of mistakes. However, this is not to say that the Act was silent on the drafting of wills. It had an entire chapter titled "Construction of Wills", and made a valiant attempt to define what was acceptable and what was not acceptable in a will, for it to be good in law. This was done in rather elaborate terms, and the writers of the Act went to the trouble of providing numerous correct and incorrect examples.

Bequests could henceforth be lawfully made to entire classes of persons. Certain types of bequests were termed onerous, inasmuch as they imposed obligations on legatees. Other categories of bequests were also defined herein. Contingent bequests being such bequests as were to be effected only upon fulfilment of certain conditions or occurrence of events which were not guaranteed to occur. Such bequests were deemed to be legitimate. Conditional bequests differed from contingent bequests in that they were subject to conditions which could be fulfilled by the legatee depending upon the presence of a desire to do so. Void bequests were defined in more or less similar terms as the Indian Succession Act of 1865.

Bequests with directions as to enjoyment or applicability were also deemed legitimate unless and until such directions were not impossible to fulfil or immoral or illegal. Bequests to executors of wills were now onwards to be deemed to be legitimate only to the extent whereto the putative executor displayed an intention to actually execute the will as per the desire of the testator. Bequests specific and non-specific were defined in this Act and both were to be subject to the test of being acceptable as per other parts of the Act. Demonstrative legacies were defined as a specific sub-class of specific legacies. These were to be those legacies which were to be bequathed as a portion of specific elements of the estate of a deceased person.

The concept of ademption of bequests was clearly defined in very detailed terms. Ademption happens when a property bequeathed in a will is disposed of by the testator before his death. In such a situation the said property is said to have been adeemed and is not to be given to the pertinent legatee. Demonstrative legacies were excluded from the list of types of adeemable bequests. Such bequests were now onwards to be paid out of the general assets of the dead testator even if the specific asset out of which they were to be be paid were disposed of or liquidated. If liabilities were to arise out of bequests, they were to be accepted by legatees. Such legacies were going to be onerous as well as conditional.

Annuities were heretofore to be be paid only up till the death of the legatee, and not beyond unless specifically stated in a will. This was a clause which enabled a testator to preclude unintended consequences of any bequest.

The rights of the husband and the wife were made equal in the Indian Succession Act of 1925. No interest in each other's property was created by virtue of marriage, and both were to inherit each other's wealth in equal measure in the event of the other's death. The doctrine regarding domicile was laid down, and a person could only be governed by the laws of a single domicile henceforth. A married woman was deemed now onwards to have the domicile of her husband. This was a matter which would be re-examined in the future by the Law Commission and by competent legislatures.

Another point which would later be reviewed was the point wherein it was stated that any will made before a person got married would stand null and void upon his or her marriage. This included wills made in anticipation of marriage. There was also the confusion created by this Act in the sphere of privileged wills, as it created a genuine doubt in the mind of readers about the competence of Hindus, Sikhs, Jains, Buddhists, Parsis, and others to make any sort of privileged will at all. Then there was the matter of the requirement for a letter of administration/ administrative letter or certificate of succession for joint stock companies, which created impediments in smooth succession in the case of demise of kartas of Hindu undivided families.

There was also no specific bar against a murderer inheriting the property of his/her victim. This caused a lot of litigation with often conflicting end results. There was no provision about presumption as to who died first when two persons related to each other died together in any natural or manmade calamity. Many words and terms used in the Act were not defined satisfactorily, like for example the words dharma, punyadaan, punya-karya, dharmada, etc.

You may also wish to read How to Write a Will and/or The Road to the Hindu Marriage Act: William Bentinck and/or The Road to the Hindu Marriage Act: Legislatures under the British Raj and/or The Road to the Hindu Marriage Act: Laws 'Enacted' in/for India during the Victorian Era (Part 1) and/or The Road to the Hindu Marriage Act: Laws 'Enacted' in/for India during the Victorian Era (Part 2) and/or The Road to the Hindu Marriage Act: Laws 'Enacted' in/for India during the Victorian Era (part 3) and/or The Road to the Hindu Marriage Act: The Anand Marriage Act 1909

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Published by Manish Udar

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Last updated on 15th October 2013
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