Property of a mother

A.Dear Sir,
Introduction
Every law of succession defines the rules of distribution of property in case a person dies without making a will. The Christian Law of Succession is governed by the provisions in the Indian Succession Act, 1925. However, with respect to Indian Christians, the diversity in inheritance laws is greatly intensified by making domicile a criterion for determining the application of laws. Till January 1986, 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. These two Acts have now been repealed and the Christians following these laws earlier are now governed by the general scheme of inheritance under the Indian Succession Act, 1925. However, Protestant and Tamil Christians, for example, living in certain taluks, are still governed by their respective customary laws. Christians in the State of Goa and the Union Territories of Daman and Diu are governed by the Portuguese Civil Code, 1867, while those in Pondicherry could be governed by the French Civil Code, 1804 (such Christians are known as “Renocants”), customary Hindu law, or the Indian Succession Act.
Despite these variances, the overall law for Indian Christians in effect is the Indian Succession Act of 1925, which will be dealt with in this project. It has been deemed “somewhat archaic and anachronistic” by certain legal experts, but it continues to be the only firm law in this regard. This Act recognises three types of heirs for Christians: the spouse, the lineal descendants, and the kindred.
Basic Principles Of The Christian Law Of Succession
The Concept Of Succession
Before venturing into a discussion on the Christian Law of Succession, we would do well to first make a preliminary study of what exactly succession is. Succession, in brief, deals with how the property of a deceased person devolves on his heirs. This property may be ancestral or self-acquired, and may devolve in two ways:
1. By Testamentary Succession, i.e. when the deceased has left a will bequeathing his property to specific heirs
2. By Intestate Succession, i.e. when the deceased has not left a will, whereby the law governing the deceased (according to his religion) steps in, and determines how his estate will devolve.
The Indian Succession Act, 1925
The religion of the deceased determines the succession to his estate. For example, succession among Hindus is governed by the Hindu Succession Act, 1956. As such, Christians in general are governed by the Indian Succession Act of 1925 for succession purposes.
S. 2(d) of the Act defines an “Indian Christian” hereby: “Indian Christian” means 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.
This was further clarified in the case of Abraham v. Abraham where the scope of this definition of an ‘Indian Christian’ was delineated with regard to its actual working. This case laid down that a Hindu who has converted to Christianity shall not be governed by Hindu law (customary or otherwise) anymore, and any continuing obligatory force that the Hindu law may have exercised upon him stands renounced. However, he was clearly given the option to permit the old law to continue to have an effect on him, despite having converted out of the old religion into the new one.
In 1865, the original Indian Succession Act was passed and a new question arose as to whether, even under the provisions of this new Act, the convert could elect to be governed by the old law. In the case of Kamawati v. Digbijoy thereafter it was held by the Privy Council that the old law ceases to be applicable with regard to inheritance i.e. succession. Thereafter in a recent 2001 judgement, the Allahabad High Court reiterated that Hindu converts to Christianity will be bound solely by the succession laws governing Christians, inclusive of the Indian Succession Act, 1925, and it will not be possible for them to elect to be governed by the old law in this or related matters.
Will, however, the incidents of the joint family (in the case of those converting out of the Hindu religion) continue to apply? The Courts in this regard have not been able to reach a uniform conclusion. In the case of Francis v. Gabri the Bombay High Court held that if a family were to convert out of Hinduism into Christianity, the coparcenary rights of that family would remain untouched. But the Madras High Court held in the case of Francis v. Tellis that the effect of conversion out of Hinduism would be to render all coparcenary rights thenceforth individual rights. In this case, out of two brothers, one of them converted to Christianity. It was held that upon his death it would not be possible for the other brother to succeed to the entire estate by way of the doctrine of survivorship.
Intestate Succession Among Indian Christians
S. 30 of the Indian Succession Act, 1925 defines intestate succession thus: A person is deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect. Thus any property which has not already been bequeathed or allocated as per legal process, will, upon the death of the owner, insofar as he is an Indian Christian, devolve as per the rules contained in Chapter II of the Act. It would be worthwhile to note at this point that intestacy is either total or partial. There is a total intestacy where the deceased does not effectively dispose of any beneficial interest in any of his property by will. There is a partial intestacy where the deceased effectively disposes of some, but not all, of the beneficial interest in his property by will.
Domicile
The Domicile of the deceased plays an integral role in determining the method of devolution of his property. Halsbury defined ‘domicile’ thus: “A person’s domicile is that country in which he either has or is deemed by law to have his permanent home.” S.5 of the Act categorically states that succession to the movable property of the deceased will be governed by the lex loci as per where he had his domicile at the time of his death; whereas succession to his immovable property will be governed by the law of India (lex loci rei sital), no matter where he was domiciled at the time of his death. Also, S. 6 further qualifies this provision by stating that a person can have only one domicile for the purpose of succession to his movable property. It must be noted that domicile and nationality differ from each other – domicile deals with immediate residence, whereas nationality implies the original allegiance borne by the person. S. 15 lays down that upon and during subsistence of marriage, the wife acquires the domicile of her husband automatically.
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