Introduction to the Indian Succession Act, 1925

Succession is the process by which the property of a deceased person devolves upon their heirs or beneficiaries. This can happen either according to a Will left by the deceased (Testamentary Succession) or according to the rules of inheritance specified by law if the person dies without a Will (Intestate Succession).

The Indian Succession Act, 1925 (ISA) is the primary legislation in India that governs the law of succession. It consolidated various previous laws on succession. The Act provides a comprehensive framework for how property is distributed after death, including rules for making Wills, the validity and interpretation of Wills, the rights of legal heirs in the absence of a Will, and the administration of the deceased's estate.

Applicability to different communities

A crucial aspect of succession law in India is that it is not uniformly governed by a single civil code. While the Indian Succession Act, 1925, is a general law, its applicability varies depending on the religious community of the deceased person. This is due to the continuation of personal laws in matters of succession and inheritance.

The Indian Succession Act, 1925, generally applies to:

• Christians: The Act applies comprehensively to Christians in India for both intestate and testamentary succession.
• Parsis: The Act contains specific provisions (Sections 50 to 56) governing intestate succession among Parsis. For testamentary succession, the general provisions of the Act apply to Parsis.
• Jews: The Act applies to Jews for both intestate and testamentary succession.
• Persons married under the Special Marriage Act, 1954: If a person belonging to any community marries under the Special Marriage Act, 1954, the succession to their property is governed by the Indian Succession Act, 1925, regardless of their religious background.
• Other cases not covered by personal laws: In certain situations where personal laws do not provide specific rules or are silent, the ISA may apply by default.

The Act does not apply to:

• Hindus, Buddhists, Jains, and Sikhs: Succession among these communities is primarily governed by the Hindu Succession Act, 1956 (HSA). The HSA codified and reformed the law of intestate succession for these communities and also contains provisions related to testamentary succession (though the general principles of the ISA regarding the making, execution, and validity of Wills also largely apply to Wills made by Hindus, Buddhists, Jains, and Sikhs).
• Muslims: Succession among Muslims is governed by Muslim Personal Law (Shariat). This law is based on religious texts and differs significantly from the ISA and HSA, particularly regarding shares of heirs and the concept of limited testamentary power (a Muslim cannot generally bequeath more than one-third of their property by Will without the consent of all heirs).

Therefore, while the ISA provides the foundational principles, particularly for testamentary succession and for communities like Christians, Parsis, and Jews, the specific rules of inheritance (intestate succession) for Hindus, Muslims, etc., are found in their respective personal laws.

Summary of Applicability:

Understanding the deceased person's community is the first step in determining which law of succession applies.

Intestate Succession

Intestate succession occurs when a person dies without leaving a valid Will. In such cases, the distribution of their property (movable and immovable) is determined by the laws of inheritance applicable to them, based on their community.

The rules of intestate succession identify the legal heirs of the deceased and specify the shares in which the property is to be distributed among them. These rules are rigid and predetermined by law; the deceased person has no control over how their property is distributed if they die intestate.

General Rules of Succession

As highlighted earlier, the specific rules for identifying heirs and their shares in intestate succession vary significantly depending on the deceased's community.

Rules under the Indian Succession Act, 1925 (for Christians, Jews, etc.):

The ISA lays down detailed rules for intestate succession based on the relationship of the heirs to the deceased (called the 'intestate'). The distribution depends on who survives the intestate (e.g., spouse, children, parents, siblings, other relatives). The ISA uses concepts like 'lineal descendants', 'kindred', and rules for calculating degrees of relationship.

• If the intestate leaves a widow/widower and lineal descendants, the widow/widower generally gets a fixed share (e.g., one-third), and the remaining property is divided among the lineal descendants.
• If the intestate leaves a widow/widower but no lineal descendants, the widow/widower gets a share, and the remaining property goes to other relatives (e.g., parents, siblings, etc.).
• If the intestate leaves only lineal descendants, the property is divided among them based on specific rules (e.g., per stirpes among children, with rules for grandchildren).
• If the intestate leaves neither spouse nor lineal descendants, the property devolves upon their parents, siblings, and other collateral relatives according to degrees of relationship.
• Rules exist for cases with no relatives, where property may escheat (go to the government).

The ISA provides specific schedules and sections detailing how property is divided among various classes of heirs (e.g., Part V for Parsis, Part VI for other communities like Christians and Jews).

Rules under the Hindu Succession Act, 1956 (for Hindus, Sikhs, Jains, Buddhists):

The HSA classifies heirs into different categories based on their relationship with a deceased Hindu male or female, and provides specific rules for distribution.

• For a Hindu Male dying intestate: Property devolves firstly upon the heirs specified in Class I of the Schedule (e.g., son, daughter, widow, mother, son of a pre-deceased son, daughter of a pre-deceased son, etc.). If there are no Class I heirs, it devolves upon heirs in Class II. If no Class I or Class II heirs, then upon agnates (relatives wholly through males). If no agnates, then upon cognates (relatives not wholly through males). All Class I heirs inherit simultaneously and take equally (subject to specific rules for widows and shares per stirpes for branches).
• For a Hindu Female dying intestate: Property devolves in a specific order: firstly, upon sons, daughters (including children of pre-deceased son/daughter), and the husband; secondly, upon heirs of the husband; thirdly, upon the mother and father; fourthly, upon heirs of the father; and lastly, upon heirs of the mother. Property inherited from parents or husband has separate rules for devolution if the female dies issueless.

The HSA abolished limited estates for women (except for certain cases) and granted women absolute rights over their property (Stridhan). It also introduced significant changes to coparcenary property under Hindu Mitakshara law, granting daughters coparcenary rights equal to sons (amendment of 2005).

Rules under Muslim Personal Law (Shariat) (for Muslims):

Muslim law of inheritance is based on the Quran, Sunnah, Ijma, and Qiyas. It is a complex system that specifies fixed shares for certain heirs (called 'Sharers' or 'Quranic heirs') and then distributes the residue among other heirs (called 'Residuaries' or 'Agnatic heirs'). The rules vary between Sunni and Shia schools of law.

• Heirs are typically classified into Sharers, Residuaries, and Distant Kindred.
• Examples of Sharers include spouse, parents, children, grandchildren, and siblings, who are entitled to fixed fractional shares (e.g., 1/2, 1/4, 1/8, 1/3, 1/6, 2/3).
• After distributing shares to Sharers, the remaining property is divided among Residuaries (primarily male agnatic relatives) according to complex rules of preference and proximity.
• Distant Kindred inherit only in the absence of Sharers and Residuaries.

The concept of representation (where the issue of a deceased heir steps into their parent's shoes) is limited or non-existent in some schools of Muslim law, meaning a grandchild whose parent is dead may not inherit if there is a surviving son of the deceased. This is a notable difference from Hindu and ISA rules.

In summary, the general rules of intestate succession are determined by the deceased's personal law. While ISA provides a model for communities like Christians and Jews, Hindus follow HSA, and Muslims follow Muslim Personal Law, each with its unique hierarchy of heirs and distribution patterns. Dying intestate means relinquishing the ability to choose who inherits your property and in what proportion, leaving it entirely to the dictates of the applicable law.

Testamentary Succession

Testamentary succession occurs when a person disposes of their property after death through a legally valid document called a Will. This mode of succession allows the individual (the testator) to determine how their assets will be distributed, overriding the default rules of intestate succession (subject to certain limitations, particularly under Muslim law and some restrictions under personal laws regarding ancestral property or maintenance obligations).

Wills and Codicils

• Will: Section 2(h) of the Indian Succession Act, 1925, defines a Will as "the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death."

  Essential characteristics of a Will:

  • Legal Declaration: It must be made in accordance with the legal requirements.
  • Intention: It must express the clear intention of the testator regarding the distribution of their property.
  • Relates to Property: It deals with the disposal of the testator's assets.
  • Takes effect after Death: A Will has no effect during the testator's lifetime. It is ambulatory, meaning it can be changed or revoked by the testator at any time before their death. It becomes operative only upon the death of the testator.
  • Testator: The person making the Will. Any person of sound mind and not a minor can make a Will (Section 59, ISA).
• Codicil: Section 2(b) of the Indian Succession Act, 1925, defines a Codicil as "an instrument made in relation to a Will, and explaining, altering or adding to its dispositions, and shall be deemed to form part of the Will."

  A codicil is essentially an addition or supplement to an existing Will. It is executed with the same formalities as a Will. A testator may use a codicil to make minor changes to their Will without revoking and creating an entirely new one. The Will and all valid codicils are read together as constituting the final testamentary disposition.

Execution of Wills

For a Will to be legally valid, it must be properly executed according to the formalities prescribed by law. Section 63 of the Indian Succession Act, 1925, lays down the requirements for the execution of unprivileged Wills (the standard type of Will made by most people).

Section 63. Execution of unprivileged Wills:

Explanation of Requirements for Execution:

1. Signing by Testator: The testator must sign or affix their mark (e.g., thumbprint) to the Will. Alternatively, another person can sign on behalf of the testator, but this must be done in the testator's presence and under their direction.
2. Placement of Signature: The signature or mark must be placed in such a way that it shows the testator intended to give effect to the document as their Will (usually at the foot or end of the Will).
3. Attestation by Witnesses: This is a mandatory and crucial requirement.
   • The Will must be attested by two or more witnesses.
   • Each witness must have personally seen the testator sign or affix their mark, OR seen someone else sign on the testator's behalf and direction, in the testator's presence.
   • Each witness must then sign the Will in the presence of the testator.
   • It is not necessary for all witnesses to be present at the same time when the testator signs, nor is it necessary for the witnesses to sign in each other's presence, as long as each signs in the testator's presence.
   • No specific wording or form is required for the attestation clause, but a clause stating that the required formalities were followed is standard and helpful.

Important Considerations for Wills:

• Sound Disposing Mind: The testator must be of sound mind at the time of making the Will, understanding the nature and effect of their act, the extent of their property, and the persons who are normally their beneficiaries.
• Freedom from Coercion/Undue Influence: The Will must be made voluntarily, without being influenced by fraud, coercion, or undue influence.
• Registration of Wills: Registration of a Will is optional under the Indian Registration Act, 1908 (Section 18). An unregistered Will, if validly executed as per Section 63 ISA, is perfectly legal and enforceable. However, registration of a Will is often advisable as it provides authenticity and safe custody. A registered Will can be deposited in a sealed cover with the Sub-Registrar.
• Probate: In certain areas (Kolkata, Chennai, Mumbai), and for Wills made by Hindus, Sikhs, Jains, or Buddhists within those areas, or relating to immovable property situated within those areas, obtaining 'Probate' from the court is compulsory for the Will to have legal effect (Section 213 read with Section 57, ISA). Probate is a copy of the Will certified by the court, confirming its validity. Even where not compulsory, obtaining probate provides conclusive proof of the Will's validity.
• Privileged Wills: Soldiers, airmen, and mariners engaged in actual warfare or expedition have the privilege of making a Will with fewer formalities (Sections 65 & 66, ISA).

Testamentary succession allows an individual to plan the distribution of their estate, providing flexibility and control that intestate succession does not. Proper execution, especially attestation, is paramount for the validity of a Will.

Probate of Wills

When a person dies leaving behind a Will, that Will needs to be given legal effect to enable the beneficiaries to claim the properties bequeathed to them. 'Probate' is the legal process by which a court of competent jurisdiction authenticates and validates a Will.

Meaning and Necessity

Meaning of Probate:

Section 2(f) of the Indian Succession Act, 1925, defines 'Probate' as "the copy of a Will certified under the seal of a Court of competent jurisdiction, with a grant of administration to the estate of the testator."

In essence, Probate is a judicial certification that the Will is genuine and validly executed, and it is granted to the person appointed as the 'Executor' in the Will. It is conclusive proof of the validity of the Will and the executor's authority to administer the deceased's estate according to the Will.

Necessity of Probate:

While a Will is a legal document upon the testator's death, its legal enforceability in court or for dealing with property depends on obtaining Probate in certain situations as mandated by the Indian Succession Act, 1925.

Section 213(1) read with Section 57 of the Indian Succession Act, 1925, makes obtaining Probate or Letters of Administration with the Will annexed (if no executor is appointed or available) compulsory in the following cases:

• For Wills made by Hindus, Buddhists, Sikhs, or Jains, on or after 1st September 1870, if the Will relates to immovable property situated within the territories which were formerly known as the Bengal Presidency, the Madras Presidency, and the Bombay Presidency.
• For Wills made by Christians, Parsis, or Jews in India, regardless of the date of the Will or the location of the property, provided the Will is made within the territories mentioned above.
• For Wills made by any person (regardless of community) if they relate to immovable property situated within the local limits of the Ordinary Original Civil Jurisdiction of the High Courts of Kolkata, Chennai, and Mumbai.

In simple terms, Probate (or Letters of Administration with Will) is mandatory for dealing with immovable property or enforcing rights under a Will in the metropolitan areas of Kolkata, Chennai, and Mumbai, and for Wills made by Hindus, Buddhists, Sikhs, and Jains relating to immovable property in certain specified older presidential towns/areas. For other parts of India, or for Wills of Hindus, etc., relating to properties outside these specific areas, obtaining Probate is optional, although advisable. Even where not compulsory, Probate provides a clear and judicially recognized title to the executor or administrator, simplifying the administration and distribution of the estate.

Grant of Probate

The process for obtaining a grant of Probate involves filing a petition in the High Court (in the specified presidency towns) or the District Court (in other areas) of the jurisdiction where the deceased resided or where the property is located. The petition is typically filed by the Executor named in the Will.

Procedure for Grant of Probate:

1. Filing Petition: The Executor files a petition along with the original Will, a list of assets and liabilities of the deceased, and details of the legal heirs. The petition must state that the Will was validly executed and attested.
2. Issuance of Citation: The court issues a citation to the legal heirs of the deceased to give them an opportunity to raise objections to the grant of Probate. Public citations are also issued in newspapers.
3. Absence of Contest: If no objections are received or sustained, the court examines the petition and evidence (often requiring proof from at least one attesting witness, if available). If satisfied that the Will is valid and the petitioner is the named executor, the court grants Probate.
4. Contested Cases: If objections are raised, the petition is converted into a contentious cause (a probate suit). The Will's validity is then determined through a trial process with evidence and cross-examination.
5. Grant and Effect: Once granted, the court seals the copy of the Will with the grant of administration (Probate). This grant is conclusive proof of the Will's genuineness and the Executor's authority to manage and distribute the deceased's estate according to the Will. The Executor can then deal with the property, collect debts, pay liabilities, and distribute legacies to beneficiaries.

Probate authenticates the Will and establishes the legal character of the Executor, granting them the right to represent the deceased and deal with their assets. The property of the deceased vests in the Executor from the date of death, but they can only legally act upon obtaining Probate where it is compulsory.

Letters of Administration

Letters of Administration are granted by a court to a person who is not named as an Executor in a Will, but is entitled to administer the estate of a deceased person. This grant is necessary in situations where there is no Executor to administer the estate, or where the deceased died without leaving a Will (intestate).

Section 2(a) of the Indian Succession Act, 1925, includes Letters of Administration within the definition of "Administrator", and Section 2(bb) defines "administration" as meaning administration of the estate of a deceased person by an Administrator.

When are Letters of Administration Necessary?

Letters of Administration are granted by the court in the following scenarios:

1. Intestate Succession: When a person dies intestate (without a valid Will), there is no Executor. The court grants Letters of Administration to a suitable person, usually a legal heir, to enable them to collect the deceased's assets, pay off debts and liabilities, and distribute the remaining property among the legal heirs according to the rules of intestate succession. Section 218 and 219 of ISA lay down the rules for granting Letters of Administration in cases of intestacy, prioritizing certain relationships.
2. Testate Succession (Will exists, but no Executor): When a person dies leaving a valid Will, but:
   • No Executor is appointed in the Will, OR
   • The Executor named in the Will is dead, has renounced their executorship, is incapable of acting, or cannot be found, OR
   • The Executor has died after obtaining Probate but before completing the administration of the estate (in which case Letters of Administration de bonis non - of goods not administered - may be granted).

   In such cases, the court grants Letters of Administration with the Will annexed to a person who is typically a major beneficiary under the Will or a legal heir. This grant certifies the validity of the Will and confers upon the Administrator the authority to administer the estate according to the Will, as if they were the Executor.

The necessity of obtaining Letters of Administration (either for intestate estate or with Will annexed) is often mandatory in the same circumstances where Probate is mandatory under Section 213 read with Section 57 of ISA (i.e., generally for immovable property in the specified Presidency towns and for Wills of certain communities relating to such property). Even where not compulsory, it is advisable for clear title and ease of administration.

Procedure for Grant of Letters of Administration:

The process is similar to obtaining Probate. An application (petition) is filed before the competent court (High Court or District Court) by the person seeking the grant (the applicant). The petition must state the grounds for the application (intestacy or Will without executor, etc.), provide details of the deceased's property, and list the legal heirs or beneficiaries. Citations are issued to the legal heirs to allow objections. If no objections are raised or are dismissed, the court grants Letters of Administration, vesting the property of the deceased in the Administrator for the purpose of administration and distribution.

While Probate confirms the Executor's authority derived from the Will, Letters of Administration confers authority upon a person appointed by the court to administer the estate, either according to the Will (if annexed) or the rules of intestate succession.

Powers and Duties of Executors and Administrators

Executors (appointed by Will) and Administrators (appointed by Court) are collectively known as the 'legal representatives' of the deceased for the purpose of administering the estate. The Indian Succession Act, 1925, outlines their extensive powers and significant duties in managing, protecting, and distributing the deceased's property.

Powers of Executor or Administrator (Part VIII of ISA, Sections 307-315):

Upon obtaining Probate or Letters of Administration (where necessary), the Executor or Administrator has broad powers to deal with the deceased's estate. These powers are exercised for the purpose of due administration of the estate.

Key powers include:

• Power to Dispose of Property (Section 307): The Executor or Administrator has the power to dispose of (sell, mortgage, lease) the movable and immovable property of the deceased.
  • An Executor has the power to sell or mortgage property without the permission of the court, unless the Will imposes restrictions or it's within the Presidency Towns jurisdiction where court permission might be required for certain transactions with immovable property.
  • An Administrator generally requires the permission of the court to sell or mortgage immovable property (though not always for movable property), especially if appointed for an intestate estate.
• Power to Sue and be Sued (Section 308): They can sue and be sued in relation to the deceased's estate.
• Power to Grant Receipts (Section 309): Their receipt for payment of money due to the deceased's estate discharges the person making the payment.
• Power to Compromise Claims (Section 310): They can compromise debts, compound claims, or grant time for payment, provided they act prudently.
• Power to Incur Expenditure (Section 314): They can incur reasonable expenditure for the administration of the estate, including funeral expenses, legal costs, and costs of protecting the property.
• Power to Assent to Legacy: An Executor has the power to give their assent to a beneficiary receiving a legacy (specific property or sum of money) bequeathed in the Will.

These powers are exercised in a fiduciary capacity, meaning they must act honestly and in the best interests of the estate and the beneficiaries/heirs.

Duties of Executor or Administrator (Part VI, IX, X of ISA):

The duties of an Executor or Administrator are primarily aimed at collecting the assets, settling liabilities, and distributing the remaining estate to the rightful claimants.

Key duties include:

• To Bury the Deceased (Section 316): The first duty is to provide for the decent disposal of the deceased's body.
• To Exhibit Inventory and Account (Section 317, 318): Within the time prescribed by the court (usually six months for inventory and one year for account), they must provide the court with a true inventory of all property belonging to the deceased and a full and true account of all receipts and disbursements related to the estate.
• To Collect Assets (Section 320): They must diligently collect all debts due to the deceased and all other assets forming part of the estate.
• To Pay Funeral and Death-bed Expenses (Section 320): These expenses have priority over all other debts.
• To Pay Debts (Section 323-324): They must pay all the debts of the deceased. Debts are paid in a specific order of priority (secured debts, then unsecured debts, with certain preferences).
• To Pay Legacies (Section 330): After paying debts, funeral expenses, etc., an Executor (in case of a Will) must pay the legacies (bequests of movable property) and transfer the residue as directed by the Will. An Administrator (in case of intestacy) distributes the residue according to the rules of intestate succession.
• To Assent to Devises (Section 332): An Executor must assent to the devise (bequest of immovable property) to the legatee to complete the transfer of title.
• To Distribute Residue: After fulfilling all other obligations, the Executor or Administrator must distribute the remaining property (residue) to the residual legatees (in case of a Will) or legal heirs (in case of intestacy).
• Duty to Act Prudently: They must manage the estate with the care that a prudent person would exercise in managing their own affairs.

Failure to perform these duties can lead to personal liability for the Executor or Administrator for any loss caused to the estate due to their default or negligence.

While both Executors and Administrators perform similar functions of estate administration, their authority originates differently (Will vs. Court), and there may be differences in the requirement for court permission for certain acts, particularly related to immovable property.