Report No. 110
The Indian Succession Act, 1925
Introductory
I. The Law of Succession
1.1. Significance of the Act and need for revision.-
The Indian Succession Act, 1925, has been taken up by the Law Commission as a part of its function of revising Central Acts of general application and importance. This Act is the principal legislative measure in India dealing with the substantive law of testamentary succession in regard to persons other than Muslims and intestate succession in regard to persons other than Hindus and Muslims.
It is also the principal legislative measure dealing with the machinery of succession in regard to both testamentary and intestate succession in respect of such persons. As will be explained later1, the Act is a consolidating enactment in the sense that it has brought in one place provisions scattered in several Central Acts.
The law of succession-like any other branch of law-cannot be regarded in isolation from other fields of law. It is, for example, tacitly supplemented by the tax laws, which turn the State into a hidden participant in the estates of many deceased persons in the country. There could be other branches of law which become relevant in a consideration of succession, even if one confines one's attention to the frontiers of one's own country. And if one looks across the frontiers, there will be so many interesting questions involving a foreign element. Discussion of such questions occasionally lends colour to this apparently drab subject.
1. Para. 1.3, infra.
1.2. Previous revisions of the Act.-
History of the law of succession itself is a matter interest. Detailed historical discussion of the subject will be found later in this Report1, but we may say a few words about the history of the statutory law relevant to matters dealt with in the Act.
2. See Chapter 2, infra.
1.3. A consolidating Act.-
The Indian Succession Act, 1925, has consolidated several pre-existing Central Acts passed between 1841 and 19031. There has not been undertaken any wholesale revision of the Act, though occasionally, when need arises, amendments have been made in the Act from time to time. In fact, the Act of 1925 was mainly a consolidating one which made no material changes in the previous laws, so that the previous Act-the Indian Succession Act of 1865-has now substantially been in force for more than a hundred years, as was pointed out by a learned commentator2. Though minor amendments have been made in 1939 and 1962, no comprehensive revision of the Act of 1925 has been undertaken for the last fifty years.
In fact, the framers of the Act stated thus3:-
"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 a purely consolidating measure. No intentional change of the law has therefore been made."
1. Chapter 2, infra.
2. The late Mr. Paruck, in the Preface to the 4th Edn. (June 1953).
3. See statement of objects and reasons, vide Gazette of India, dated 4th August, 1923, p. 5, para. 401.
1.4. Need for revision.-
We shall deal later in detail with the justification for revision of the Act1, but at this stage it is appropriate to state that the present social thinking, the mass of case law that has accumulated on various provisions of the Act and certain juristic and other developments that have taken place in the field of family law and in other branches of the law, seem to justify a review of the Act.
1. Para. 1.6, et sea, infra.
1.5. Institution of succession.-
The institution of succession is intimately connected with private property. This much is obvious. But it serves a variety of values cherished by a free society. These include the re-enforcement of family ties and responsibilities, economic and social pluralism, and encouragement of private philanthropy to improve the quality of life1. Perhaps at a more fundamental level, the institution of succession is a proper response of the society to elemental motives, ranging from concern for one's immediate family to a desire to extend one's personality far beyond death.
In fact, established patterns of inheritance may be the least objectionable means of deciding the ownership of property on a person's death. At the same time, transfers of substantial wealth tend to conflict with other basic social values, including equality of opportunity, dispersal of economic power, reward according to merit, and avoidance of rigid class distinctions.
In formulating or re-formulating the law of succession, all these considerations become relevant.
1. Death, Taxes and Family Property-Final Report of the American Assembly (December 2-4-1976) as reproduced in (January 1977) ABAJ 86-87.
1.6. Wider meaning of "succession".-
Of course, testate and intestate succession are only a part of the wider process of succession. That process embraces many other methods of transmitting property to one's successors in situations where death is, or could be, relevant-such as, the gift mortis causa, life assurance in its various forms, joint ownership, partnership arrangements and pension and provident fund schemes. The legal requirements for each method vary.
These variations were imposed in the context of the interests which the law was seeking to safeguard when imposing such requirements. Amongst the factors, which are likely to influence the choice of the machinery to be utilised by the citizen, one that has become prominent in modern times is, of course, taxation.
1.7. Recognition of certain claims.-
Apart from the choice of the machinery1 of succession, there is the question of the choice of the beneficiaries who will take after death. A major aspect worth noting is the conflict between the citizen's wish and the law's demand. It is the wish of the average educated person to choose his own successors, rather than to have that choice decided for him by an application of the rule of intestacy. But how far this desire should be allowed a freeplay is a question which has come up for debate in recent times.
In certain countries, for example, the claims of heirs are regarded as material, and the decision of the owner of property is not treated as conclusive. "Family provision" legislation and various statutory provisions for the protection of the creditors constituted examples of the legal recognition of such claims.