80 S.31 Part V—Chap. 2—Rules in cases of Intestates other than Parsis Mlustration Executor’s Right to Residue: In England, before the Executor's Act, 1830, (Will LV, eh 40) if a testator by his will appointed an executor but did not dispose of the resiclue, the executor took the residue absolutely. unless by implication or presumption he appeared to be a trustee only. This was abolished by the Executor’s Act, 1830, and the executor is merely a trustee of any reside, not expressly disposed of by the will, for a person entitled under the statute of distribution. Example A testator executed his will on a printed form and in the column for appointment of executor he filled up the name of his wife and directed her to pay his debts and funeral and testamentary expenses. The clause tor disposition of the property was kept blank thus, “I give and bequeath unto—. It was contended that the widow was entitled to take the property. It was held that the ‘widow took the property as a trustee for persons entitled as on intestacy, including herselt.!7 According to Illust. (ii) of this section, the executor takes no beneficial interest in the property of the testator which he bas not disposed of by his will Rule of Private International Law.—Intestate Succession to movable property is to be distributed according to the law of the domicile of the intestate at the time of his death, This law determines the class of persons to take, the relative proportions to which the distributes are entitled, the right of representation, the rights of a surviving spouse and all analogous questions.'* In relation to immovable property, the law of situs will apply, no matter where his/her domicile may have been. CHAPTER II RULES IN CASES OF INTESTATES OTHER THAN PARSIS S. 31. Chapter not to apply to Parsis—Nothing in this Chapter shall apply to Parsis. Applicability of the chapter—This chapter applies to Europeans and Indian Christians only and lays down the shares of the next of kin of the deceased in cases of intestacy, ‘When the marriage of a Hindu is solemnized under the Special Marriage Act, 1954, succession to the property held by that person is governed by the Hindu Succession Actl956and not under the provision of this Act.!? In that case, the seope of'ss. 21 and 21A of the Special Marriage Act 1954 was considered. Section 31 of the Indian Succession Actl925 makes an exception which is a statutory exception to the general Hindu law that provided for survivorship of the interest of a coparcener dying intestate without making a disposition of his interest during his life time2° 17. Re Skeats, Thain v. Gibbs, [1936] Ch 683. 18 Chechire, North & Fawcett on Private International Law, 14th Edn., Oxford, Ch. 32. p. 1264, 19. Menaka Gandhi v. Indira Gandhi, AIR. 1985 Del 114 : (1984) 7 DRI 238, 20. Munni Lal Mahto v. Chamdeshwar Mahto, AIR 2007 Pat 66,Where intestate has left widow and lineal descendants, or widow 8.33 81 247th Law Commission Report submitted to Central Government on 12" September 2014—The first Law Commission in 1935 had recommended that the English Law should be declared to be the law applicable to persons other than Hindus and Mohammedans, who were Anglo-Indians, Parsis, Jews, Armenians, Christians and others, a suggestion that was never accepted. The Second Law Commission did not favour introduction of English law, but it viewed it desirable to assimilate law as was prevailing throughout the country. It was the Third Law Commission which submitted draft of the Indian Succession Act, 1865 on the basis of which the Act was fashioned. ‘The Act of 1925 which was a consolidating enactment was the principal legislative measure dealing with machinery of succession regard to the testamentary and intestate succession in respect of above mentioned persons. The Law Commission has opined ss. 41 to 48 (ss. 42 to 46 to be more specific) of the Indian Succession Act, 1925 to be “unfair to the interst of Christian Women” to hasten to suggest changes through the report. The report is principally concerned about ss. 41 to 49 regarding distribution of estate where there “are no lineal descendants” of the intestate. The suggestions in respect of the respective provisions are brought under the relevant sections. S. 32. Devolution of such property—The property of an intestate devolves upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules hereinafter contained in this Chapter. 2ipe 44] S. 33. Where intestate has left widow and lineal descendants, or widow and kindred only, or jow and no kindred.—Where the intestate has left a widow: (a) if he has also left any lineal descendants, one-third of his property shall belong to his widow, and the remaining two-thirds shall go to his lineal descendants, according to the rules hereinafter contained; (6) 2[save as provided by section 33-A], if he has left no lineal descedant, but has left persons who are kindred to him, one-half of his property shall belong to his widow, and the other half shall 21. Explanation is deleted by Act 26 of 2002, s. 2 (w.e.f. 27-5-2002). Prior to deletion it read as follows: BE xplanation—A widow is not entitled to the provision hereby made for her if by a valid contract made before her matriage, she lias been excluded from her distributive share of her husband’s estate.” Effect of Explanation.—The explanation gives statutory effect to the doctrine of English law, whereby the widow's right under the statute of distribution to participate in the personal property of her husband may be validly barred by a settlement executed before marriage. The settlement must be ante-nuptial and not post-nuptial. ‘A valid contract between the husband and wife before marriage will also exclude the widow from claiming her share in the estate of her husband, if he dies intestate.” The deletion of the explanation restores the primacy to the rules of devolution, notwithstanding any pre- nuptial settlement with the husband, 22. Inserted by Act 40 of 1926, s. 282 8.33 Part V—Chap. 2—Rules in cases of Intestates other than Parsis go to those who are of kindred to him, in the order and according to the rules hereinafter contained; (c) if he has left none who are of kindred to him, the whole of his property shall belong to his widow. Share of the widow. — @ If the husband has left lineal descendants ie. child, children, or remote issue, the widow's share is one-third and the remaining two-third will go to the lineal descendants of the husband. (ii) Subject to the provisions of s.33A, if the husband has left no lineal descendants but has left father, mother, etc., then the widow’s share is one- half and the remaining one-half will go to the kindred, (iii) But if there are no kindreds, the widow gets the whole. Ifa Hindu becomes a convert to Christianity and dies leaving a Christian widow and a Hindu brother and sister, the distribution will be according to this Act and the widow will take half and the brother and sister will take half equally.23 But if a Hindu marries a Hindu girl and then becomes a Christian, whereupon the Hindu wife refuses to live with him and renounces all claims to his estate, she is not entitled to her share as a widow.24 If a Hindu marries under the Special Marriage Act 1954 and dies intestate leaving his widow who was married to him under the Special Marriage Act and a son by a previous Hindu wife, the widow is entitled to only one-third and the son as the lineal descendant is entitled to the two-third,.25 The term widow should include ‘widows’ as the singular should include the plural, as such after the death of a man who married a wife under the Special Marriage Act 1954 and gets married second time in accordance with Hindu rites during the lifetime of his first wife, the second marriage does not become void or illegal. Consequently, on the death of the man property devolves on both of the widows and his lineal descendants.2¢ Succession to deceased to whom the provisions of this Act are applicable, where the persons surviving are widow, children and mother, unlike the Hindu Succession Act, the mother is not a heir and hence a person claiming through the mother (brother of the deceased) has no caveatable interest to seek for revocation of the grant.2”The Madras High Court held that if the person claiming as a brother did not 23. Nepen Bala v, Sita Kanta, 15 CWN 158 : 8 IC 41; Benoy Kumar v, Panchanon, ALR 1956 Cal 177 (DB). 24, Adm-General v. Anandachari, ILR 9 Mad 466. 28, Ganga Devi v. Bijai Singh, AIR. 1952 All 244. 26. Shephali Chatterjee v. Kamala Banerjee, AIR 1972 All $31. 27. Mrs Archana Arun Palay v. Jennifer Michael, Francesca Michael and Christina Grancesca Michael 2013(S) MhLJ 916, The correctness of the judgment is doubtful, since in terms of s. 24, consanguinity is determined through a common ancestor and s. 27 makes it clear that for the purpose of succession, there is no difference between persons related through mother or father. See also s. 43 below and the illustration when mother and brother take the property as heirs, when the deceased leaves behind no lineal descendants.Special provision where intestate has left widow and no lineal S.33A 83 prove his relationship as such, a challenge made by him to the sale by the widow as though she was the sole owner could not still be impeached by the plaintiff? Under the Succession Act, ‘kindred’ means relation by blood through lawful wedlock. So, relations by illegitimate birth are not recognised as kindreds under this ‘Act. Though kindreds is generally spoken of as including all relation, the expression ‘next of kin’ does not include the relation by affinity, such as husband or wife or widow or mother-in-law or step mother of an intestate.” In England, under the Intestate’s Estate Act, 1952 which came into force on 1 January 1953, it is enacted that on the death of a husband intestate, his whole estate will pass to the widow if he leaves no surviving issue, parent, brother or sister of the whole blood or issue of such brother or sister. 30[S, 33-A. Spécial provision where intestate has left widow and no lineal descendants.—(1) Where the intestate has left a widow but no lineal descendants and the net value of his property does not exceed five thousand rupees, the whole of his property shall belong to the widow. (2) Where the net value of the property exceeds the sum of five thousand rupees, the widow shall be entitled to five thousand rupees thereof and shall have a charge upon the whole of such property for such sum of five thousand rupees, with interest thereon from the date of the death of the intestate at 4 per cent. per annum until payment. (3) The provision for the widow made by this section shall be in addition and without prejudice to her interest and share in the residue of the estate of such intestate remaining after payment of the said sum of five thousand rupees with interest as aforesaid, and such, residue shall be distributed in accordance with the provisions of section 33 as if it were the whole of such intestate’s property. (4) The net value of the property shall be ascertained by deducting from the gross value thereof all debts, and all funeral and administration expenses of the intestate, and all other lawful liabilities and charges to which the property shall be subject. (5) This section shall not apply : (a) to the property of : () any Indian Christian, (ii) any child or grandchild of any male person who is or was at the time of his death an Indian Christian, or 28. S Vedaraj Pilla (died) and others v. Meyyamma and another 2014 (1) CTC 619. 29. Emma Agnes Smithy v. Thomas Massey, ILR 30 Bom 500. 30, Inserted by Act 40 of 1926, s. 384 S34 Part V—Chap. 2—Rules in cases of Intestates other than Parsis (iii) any person professing the Hindu, Buddhist, Sikh or Jaina religion the succession to whose property is, under section 24 of the Special Marriage Act, 18723!, regulated by the provisions of this Act; (4) unless the deceased dies intestate in respect of all his property.) Amendment.—This section was inserted by Act 40 of 1926, in order to make a better provision for the widow when the estate is small. It is based on statutes 53 & 54, Vict.-c. 29. It applies only where the husband dies intestate in respect of all his property, leaving a widow but no lineal descendants. Sub-section (4): Ascertainment of net value.—The property mentioned in this sub-section is both movable and immovable property. (In England, in the case of fee simply the net value is calculated at 20 years’ purchase of the annual value at the date of the death of the intestate as determined by the law of the property tax), It is the gross value of the estate minus the following: (i) debts left by the intestate; (ii) his funeral expenses; (iii) administration expenses, eg. payment of duty and expenses of petition and costs of an administration suit (if any); and (iv) ali other lawful liabilities and charges. Sub-section 5(a)(i) and 5(a)(ii)—indian Christians and any child or grandchild of any male Indian Christian are excluded from the benefit of this section, even if they died intestate in respect of all their property.?2 To them, s. 33 will apply. Sub-section 5(a)(iii).—Hindus, Buddhists, Sikhs and Jainas, succession to whose property under s. 24 of the Special Marriage Act, 1874 (now s.21 of the Special Marriage Act, 1954) is regulated by the provisions of this (Indian Succession ‘Act) Act, are also excluded from the benefit of this section, and therefore the widow of such a person dying intestate is excluded from the benefit of this section This sub-section is an independent sub-section and is not part of sub-s. 5(a). The provision of s.33A will apply only where there is total intestacy and not partial intestacy (see Preamble to the Amending Act 40 of 1926). It will apply when there is a complete failure by lapse of all beneficial interests under a will.’ If the husband has left a will not making sufficient provision or any provision for the widow, there is an indication that he does not want her to benefit and this section will not help the widow in such a case. The legislature has only provided when the person has died intestate in respect of all his property. S. 34. Where intestate has left no widow, and where he has left no kindred. —Where the intestate has left no widow, his property shall go to his lineal descendants or to those who are of kindred to him, not being lineal descendants, according to the rules hereinafter contained; and, if he has left none who are of kindred to him, it shall go the Government, 31. Now see the Special Marriage Act, 1954 (43 of 1954) 32. Anulayi v. Antonimuthunadan, AIR 1945 Mad 47. 33. Re Cuffe, [1908] 2 Ch 500.Where intestate has left no widow, and where he has left no kindred S34 85 Share of lineal descendants.—Sections 37-40 lays down the shares of the lineal descendants when there is no widow. If there are no lineal descendants, the property goes to those who are kindred to the deceased in the proportions laid down in ss. 41-48. The word kindred used in this section excludes the lineal descendants, ie. ‘not being lineal descendants’ ‘Adopted child’.—Although the Hindu Adoption and Maintenance Act 1956 grants to the adopted child all the rights of a natural born child, among the Indian Christians, there is no statutory law that sanctifies adoption, The Allahabad High Court rejected the claim to inheritance of a person as an adopted son to an Indian Christian of Hindu religion in Ajit Dait v. Mrs. Ethel Walters,§4 as not tenable. An earlier judgment of the Kerala High Court in Philips Alfred Malvin v. Y.J. Gonsalves & Ors.35 where the court had held that adoption though not recognised is not prohibited among Christians, with reference to Canon law, was cited before the ‘Allahabad High Court but the court chose to differ with the Kerala view. The Madras High Court also preferred the claim of the sister of the deceased as an heir to a person said to be an adopted child in Rabi v. Jasn Leela,%6 when it held that though the Act deals with consanguinity, there is no mention of adoption as creating any kind of relationship whatsoever. Similarly, a Buddhist adopted a girl-child and subsequently converted to Christianity. On the death of the adopter, it was held that the adopted child has no right=7 The view expressed in Philips Alfred Malvin (supra), was approved by a Division Bench of the Kerala High Court in Maxin George v. Indian Oil Corpo- ration.® Another judge of the Kerala High Court vide his judgment in Biju Ramesh and another y. J.P. Vijayakumar and others,?? distinguished the earlier decision in Philips Alfred Malvin’s case (cited supra) on its facts and held that there must be a civil law providing for adoption, and that the factum of adoption must be proved before the court. Where some courts have found the law as deficient to make possible for Christians a valid adoption, two judgments, one from the Bombay High Court and another from the Madras High Court have made novel interpretations to legitimize adoption for Christians also. The Bombay High Court (Rebello J) in Manuel Theodore D'souza and another," read through Art. 21 of the Constitution the right of a parent (and that would therefore include a Christian parent); the right to adopt a child and to give that child, a home, a name and nationality. It said, “Jt is now impregnated in Article 21. Its flow now is sustained from the Republican Constitution and not age-old Customs.” Apart from this constitutional power, the High Court also exercises the powers conferred on it under the amended Letters Patent. By virtue of Clause 17 as already stated, it has jurisdiction over infants. This jurisdiction has been traced and identified as the power of parens patriae. The court 34. Ajit Datt v. Mrs. Ethel Walters, AIR 2001 All 109 : (2000) 4 AWC 3270. 35. Philips Alfred Malvin v. YJ. Gonsalves & Ors., AIR 1994 Ker 187. 36. Rabi v. Jasn Leela, (2000) 3 Mad LW 409; Ranbir v. Jogin Osa, AIR 1940 All 134. 37. Mia Khin Than v. Mia Ahma, AIR 1934 Rang 72. 38. Maxin George v. Indian Oil Corporation, 2005 (3) KLT 57. 39. Biju Ramesh and another v. J.P. Vijayakumar and others, AUR 2005 Ker 196; (2005) 2 KLT 960. 40. Manuel Theodore D'souza and another, 11 (2000) DMC 292 : (2000) 2 Bom CR 244.86 S.34 Part ¥—Chap. 2—Rules in cases of Intestates other than Parsis further added, “Many of us examining such issues forget that we have taken a solemn oath to protect and defend the Constitution. That requires examining legis- jation and fundamental rights in such a manner that the tears of the abandoned od homeless infants are wiped away, of course within the constitutional parameters Ia this matter, the exercise of powers of parens patriae and Article 226 te Bive effect to the fundamental rights, what is in issue are the enforceability of directive principles and Intemational Covenants to which India is a signatory.” It must be noticed, that the Canon law itself does not prohibit adoption. Canon 110 speaks only of the legal consequences of an adoption made “in accordance with the civil law” and it is as follows:- Canon-110 “Children who have been adopted in accordance with the civil law are considered the children of that person or those persons who have adopted them." The Madras High Court (K. Chandra. J.) adopted a still more novel interpre- tation in Re Mr. RR. George Christopher and Mrs. Kristy ‘Chandi! finding sraueh the provisions of the Juvenile Justice (Care & Protection of Children) Act, 2000 (Central Act 50/2000) that a secular law exists for adoption to_all persons including Christians. The court said, “The JJ Act for the first time provides ‘adoption’ as a means to rehabilitate and socially reintegrate a child’ Iv hed Empowered the State Government and the JJ Board to give a child for adoption, This is the first secular law in India providing for adoption. The provision in sections 10 and 41 are not restricted to persons belonging to particular religion alone.” Section 40, Process of rehabilitation and social reintegration. {Zhe rehabilitation and social reintegration of a child shall begin during the stay of the child in a children’s home or special home and the rehabilitation wad cone! Teintegration of children shall be carried out alternatively by (i) adoption, (ii) foster care, (ili) sponsorship, and (iv) sending the child to an after-care organisation, Section 41. Adoption.—(1) The primary responsibility for providing care and Protection to children shall be that of his family. 2) Adoption shall be resorted to for the rehabilitation of the children who are orphan, abandoned or surrendered throughsuch mechanism as may be prescribed, (G) In keeping with the provisions of the various guidelines for adoption issued from time to time by the State Government, or the Central Adoption Revence Agency and notified by the Central Government, children may be given in adoption by a court after satisfying itself regarding the investigations having been camicn out, as are required for giving such children in adoption, (4) The State Government shall recognise one or more of its institutions or voluntary organisations in each district as specialised adoption agencies in such manner as may be prescribed for the placement of orphan, abandoned or surrendered children for adoption in accordance with the guidelines notified under sub-section (3) Eee eee 41. Re Mr RR George Christopher and Mrs. Kristy Chandra, A.No. 2805 of 2009 in OP No 717 0f 2007 dated 27.7.2009.Where intestate has left no widow, and where he has left no kindred 8.34 87 Provided that the children’s homes and the institutions run by the State Government or a voluntary organisation for children in need of care and protection, who are orphan, abandoned or surrendered, shall ensure that these children are declared free for adoption by the Committee and all such cases shall be referred to the adoption agency in that district for placement of such children in adoption in accordance with the guidelines notified under sub-section (3). (5) No child shall be offered for adoption— (a) until two members of the Committee declare the child legally free for placement, in the case of abandoned children; (6) till the two months period for reconsideration by the parent is over, in the case of surrendered children; and (©) without his consent, in the case of a child who can understand and express his consent. (© The Board may allow a child to be given in adoption— (a) toa person irrespective of marital status ; or (©) to parents to adopt a child of same sex irrespective of the number of living biological sons or daughters.” or (Emphasis added) (©) to childless couples. In the above case, the first petitioner, who was an employee of Air India, approached his employer to get due benefits to the minor child. To their shock, the employer of the first petitioner informed them that since the child was not legally adopted and the petitioners are only the guardians, no benefits will accrue to the adopted child. Hence, the application has been filed for a direction that the minor child was entitled to all legal rights including the right of inheritance, as if it was a biological child. The court said further, “The stand taken by Air India is not in consonance with the Constitution and the various judicial pronouncements set out above. It is needless to state that the Canon Law, which is applicable to the petitioners, provides for adoption if the Civil Law of that Country permit the same.” ‘The court further admonished the employer, “Instead of encouraging people to adopt children with a view to rehabilitate and socially reintegrate, Air India, which is a Public Sector Undertaking, has come up with a plea that the petitioners are only guardians and therefore, their adopted child cannot get any benefits otherwise available to the children of Air India staff. It is a spurious argument. Apart from that, their stand is opposed to the law of the land. It further, shows their insensitiveness and ignorance regarding the development of Law in this Country.” The court conchided: “Aspiring parents, who intend to adopt children, without being inhibited by their personal laws, are entitled to adopt a child in terms of the provisions of the Juvenile Justice Act.” In Stephanie Joan Becker v State,* the Supreme Court invoked the provisions of the Juvenile Justice Act, inter alia to authorize the adoption of an Indian Child to a 42. Stephanie Joan Becker v State, (2013) 12 SCC 786,88 $35 Part V—Chap. 2—Rules in cases of Intestates other than Parsis foreigner. This judgment does not however directly confront the legitimacy of a child by a Christian parent to adopt a child under the personal law. The law is now authoritatively laid down in a public interest litigation in Shabnam Hashmi v. Union of India* requiring egitimization and guidelines to be issued for allowing for adoption by 2 Muslim woman. Rejecting the objections of the All India Muslim Personal Law Board (AIMPLB) that the Muslim personal law does not recognise adoption, the Supreme Court has held that the Juvenile Justice (Care and Protection of Children) Act 2000, as amended in 2006 is an enabling legislation that gives a prospective parent the option of adopting an eligible child by following, procedure prescribed under the Act. This decision, it is submitted, shall apply to adoption of a child by a Christian parent also. Share of the government—The government will take the whole only if there is no widow, no lineal descendants and no kindred. When the state takes the property under this section, it does so by virtue of its prerogative to take the property of one who has no heir at law. The reason seems to be that the state as the protector of every citizen during his life is entitled to take his property asa reward for its services where there are no heirs to the deceased. In such cases, collector has power to issue notices to the claimants of the property.** When the state takes the property, it does so subject to the liabilities of the deceased 4 At one time if an illegitimate person died leaving no wife or children, the Crown took the whole property as bona vacantia but it was customary for the Crown to Fegrant the property to the persons who, if the deceased had been legitimate would have been entitled to it as next of kin. A notification was issued under the Act of 1865 which was published in the Gazette of India, 5 April 1873, Part IV, at p. 334, giving effect to the practice of regranting the property stated above. In Secretary of State v. Girdharilal,* it was held that the Crown took the property by escheat. Onus of proof in escheat.—It is well settled that in a claim of escheat, the onus of proof lies heavily on the government to prove the absence of any heir of the deceased owner, anywhere in the world. Normally, the court frowns on the estate being taken by escheat unless the essential conditions for escheat are fully satisfied. Before the plea of escheat can be entertained, there must be a public notice given by the government so that if there is any claimant anywhere in the country or for that matter in the world, he may come forward to contest the claim of the state.47 S. 35. Rights of widower.—A husband surviving his wife has the same rights in respect of her property, if she dies intestate, as a widow has in respect of her husband’s property, if he dies intestate. 43. Shabnam Hashmi v. Union of India, (2014) 4 SCC 1 44. Indian Timber and Plywood Corporation Lid. v. Collector of Kozlikode, 1996 KL] $64, 4S. Secretary of State v. Giridharilal, ILR 54 All 226. 46. Secretary of State v. Girdharilal, ILR 54 All 226. 41. State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 : (1983) 3 SCC 118.Where intestate has left child or children only 8.37 89 Share of the husband.—Under the wording of this section, if the husband survives his wife he gets the same share in her property as laid down in ss. 33 and 33A, ie: (O if there are lineal descendants, he gets one-third and the remaining two- third will go to the lineal descendants. (ii) If there are no lineal descendants but kindred, his share is one-half and the remaining one-half will go to the kindred. (iii) If there are no kindred, he takes the whole. (iv) If the net value of the wife’s estate does not exceed Rs 5,000/- and if the wife dies intestate leaving no lineal descendants, then also the husband will get the whole property. () If the net value of wife's estate exceeds Rs 5,000/-, the share of the husband will be in terms of s. 33A (3). Judicial separation.—If an order under the Indian Divorce Act (Act 4 of 1869) is passed for judicial separation, whilst the separation continues, the wife is from the date of the order, considered to be an unmarried woman with respect to her property and in case she dies intestate her property becomes distributable as if her husband had been then dead (see s. 24, Indian Divorce Act, 1869). Distribution where there are lineal descendants S. 36. Rules of distribution —The rules for the distribution of the intestate’s property (after deducting the widow’s share, if he has left a widow) amongst his lineal descendants shall be those contained in sections 37 to 40. Distribution of property.—The rules of distribution of the property of an intestate are laid down in ss. 37 to 40 when there are lineal descendants and in ss. 41 to 48 when there are no lineal descendants but kindred, and the order of distribution is as follows: (1) To deduct first the share of the husband or wife as the case may be. (2) If there are lineal descendants, to distribute the residue (or the whole if there is no husband or wife) amongst the lineal descendants in the shares | and proportions laid down in ss. 37 to 40. (3) If there are no lineal descendants, then only to distribute the residue (or the whole if there is no husband or wife) amongst the kindred of the intestate in the shares and proportions laid down in ss. 42 to 48. S. 37. Where intestate has left child or children only.—Where the intestate has left surviving him a child or children, but no more remote lineal descendant through a deceased child, the property shall belong to 48, Ganta Daniyelu v. Gunnii Yesu, AIR 1925 Mad 110.90 $.37 Part V—Chap. 2—Rules in cases of Intestates other than Parsis his surviving child, if there is only one, or shall be equally divided among all his surviving children. Share of children.—Heirship, is one of personal status and no claim to it will be made on the only ground that he or she incurred the funeral expenses of the deceased.4? Where the intestate has left a widow or husband and child, the widow or the husband gets one-third and the child gets two-thirds. If there is no widow or husband, the child gets whole. If there are more than one child, viz., sons and dau- ghters only, ie, lineal descendants of the first degree, they take equally whether male or female. A posthumous child has the same right as if it was actually born at the date of the intestate, see Illust. (iv) of s.40. The shares inherited by the heirs including females, are always absolute and freely alienable. Sridhana offered to a daughter at the time of marriage does not result in disinheritence to the estate of her father.5° Ilegitimate child—The word ‘child’ used in this section does not include an illegitimate childs) A child who was legitimate when bom cannot become illegitimate by any subsequent change in the law.5? As per English law, a person is legitimated by the subsequent marriage, even of polygamous, of his parents or by an act of recognition. by the father, if at the time of birth or conception and at the time of subsequent marriage or act of recognition, the law of the domicile of the father recognises the legitimation and such a person is entitled to a share in the estate of the deceased.5? Succession of illegitimate children to Christian parents.—In Jane Antony V.M, Siyath,* the issue was whether the illegitimate children of Christian parents would be entitled to succession to the estate of the father. Even while holding that children would mean legitimate kinship, the court cited the development of law in several jurisdictions across the globe and also of traditional Hindu law and exhorted the legislature to bring a change of law to recognise the right to illegitimate children®s and finding long cohabitation of the deceased with the mother of the children, held that they were entitled to be treated as legitimate. It is submitted, that the court was deciding on an issue of what was just but it is doubtful if it could be cited as a law laying down even an illegitimate child could succeed.56 49. Shri Subodh Ch. Dutta v. Bimala Saikia & Anor., AIR 1994 NOC 208 (Gav). 50. E.V. George v. Aarrie Thomas & Anor., AIR 1991 Ker 402. 51. Re in the Goods of Sarah Ezra, 58 Cal 761: AIR 1931 Cal 560. 52. Arokyathammal v. Mookayee, AIR 1959 Mad 180. 53. Williams and Mortimer, Executors, Administrators and Probate, \6th edn., p. 232; s, 16 of the Hindu Marriage Act and s. 26 of the Special Marriage Act. 54. Jane Antony V.M, Siyath, 2009 ACJ 2272. 55. The court directed the Registry to send a copy of this judgment to the Ministry of Law and Justice, Government of India, New Delhi; to the Chief Secretary to the Govemnment of Kerala, Thiruvananthapuram; to the Chairman, Law Commission of India, New Delhi and Justice V.R. Krishna Iyer, Chairman, Law Reforms Commission (Kerala), Emakulam. 56. See s. 21 of the Divorce Act 1869. It confers status of legitimacy only to a limited class of children stated therein who are begotten before the decree is made in an annulled marriage and shall be entitled to succeed to the estate of the parent who at the time of marriage was competent to contract, as legitimate children, Thus, s. 21 does not confer such status even on all children begotten in all marriages subsequently declared null and void.55002 Where intestate leaves lineal descendants not all in same degree S. 38. Where intestate has left no child, but grandchild or grand- children.—Where the intestate has not left surviving him any child but has left a grandchild and grandchildren and no more remote descendant through a deceased grandchild, the property shall belong to his surviving grandchild if there is one, or shall be equally divided among all his surviving grandchildren. Itsrarions (i) A hias three children, and no more, John, Mary and Henry. They all die before the father, John leaving two children, Mary three, and Henry four. Afterwards A dies intestate, leaving those nine grandchildren and no descendant of any deceased grandchild. Each of his grandchildren will have one-ninth. ii) But if Henry has died, leaving no child, then the whole is equally divided between the intestate’s five grandchildren, the children of John and Mary. Share of grandchildren—When there are grandsons and granddaughters only, i.e. all lineal descendants of the second degree, they take equally, But under the English law, it has been held in Ross’s Trust? that such descendants take not per capita but per stripes. S. 39. Where intestate has left only great-grandchildren or remoter lineal descendants.—In like manner the property shall go to the surviving lineal descendants who are nearest in degree to the intestate, where they are all in the degree of great-grandchildren to him, or are all in a more remote degree. Share of great-grandchildren.—When there are great-grandchildren or other remote lineal descendants all in the same degree only, they share equally, both males and females. S. 40. Where intestate leaves lineal descendants not all in same degree of kindred to him, and those through whom the more remote are descended are dead.—(1) If the intestate has left lineal descendants who do not all stand in the same degree of kindred to him, and the persons through whom the more remote are descended from him are dead, the property shall be divided into such a number of equal shares as may correspond with the number of the lineal descendants of the intestate who either stood in the nearest degree of kindred to him at his decease, or having been of the like degree of kindred to him, died before him, leaving lineal descendants who survived him. (2) One of such shares shall be allotted to each of the lineal descen- dants who stood in the nearest degree of kindred to the intestate at his decease; and one of such shares shall be allotted in respect of each of such deceased lineal descendants; and the share allotted in respect of each of such deceased lineal descendants shall belong to his surviving child or 57. Ross's Trust, (1871) LR 13 Eq 286.92 $8.40 Part V—Chap. 2—Rules in cases of Intestates other than Parsis children or more remote lineal descendants, as the case may be; such surviving child ot children or more remote lineal descendants always tak. ing the share which his or their parent or parents would have been entitled to respectively if such parent or parents had survived the intestate Mlustrations (A had three children, John, Mary and Henry; John died, leaving four children, and Mary died, leaving one, and Henry alone survived the father. On the death of A, intestate, onethied i allotted to Henry, one-third to John’s four Children, and the remaining third to Mary's one child ( 4 left no child, but left eight grandchildren, and two children of a deceased grandchild The property is-divided into nine parts,-one of which is allotted to each grandchild! and ie remaining one-ninth is equally divided between the two great-grandchildren. {#0 4 hhas three children, John, Mary and Henry; John dies leaving four children; and one of John’s children dies leaving two children. Mary dies leaving one child. d afterwards dice intestace One-third of his property is alloted to Henry, one-third to Mary’s child, and onesthird ia divided into four parts, one of which is allotied to each of John's three surviving children, and tre remaining partis equally divided between John's two grandchildren C1) 4 has two children, and no more, John and Mary. John dies before his father leaving his Wife pregnant. Then dies leaving Mary surviving him, and in due time a child of Job te torn A's property is to be equally divided between Mary and the posthumous child Shares of lineal descendants Share of children, grandchildren and Equally, per stirpes, i.e, grandchildren great-grandchildren and other lineal and great-grandchildren take equally descendants, (i.e, lineal descendants between them their deceased parent's who do not all stand in the same share. degree of kindred) Examples o - Anwis dead 8.29 5.29 *0.29 sou DID s.19 D1 ° tae wins *dend | cto -+, 6 x 213 = 119s, *8.= 19 Daw S89 D1 S119 s D. s, D. D. WxV9=uIB 8 V3x9> 17 wr 137 Note.—In example (1) A is the propositus. 4 dies leaving widow W, one son § and four grandchildren § and D and $ and D. Widow takes 1/3 and the 2/3 will be divided into three shares 2/9, 2/ estate and appropriated it to the specific purpose ofRules of distribution where intestate has lefi no lineal descendants S.41 93 the trust, the executor dismisses 9 and 2/9 and the share of the pre-deceased son and daughter will be equally divided between their children 1/9 and 1/9. In example (2) all the children of the propositus are dead but he leaves a widow, four grandchildren and five great-grandchildren. The widow will take the one-third and the two-thirds will be divided into six parts as there are six grandchildren (four living and two dead), each grandchild taking one-nitith; the respective shares of the deceased grandchildren will go to their children equally. Observe, that in this case the stirpes or root is the grandchildren and not the children as all the children are dead. If any child of A were living, the root would be the children. See Illust. (iv), s. 40. The rule in England seems to be different. See Re Ross’ Trusts,5® where the share is calculated according to the number of children and not with reference to the number of grandchildren as in the above case. It may also be noted here that in construing a will, where the testator desires his property to be divided amongst his children and their lineal descendants the general rule is to take children as the stock and make division accordingly. In Sidey v. Perpetual Trustees Estate Co. Ltd." the will contained the clause ‘from and after the death of the last survivor of my four children I give devise and bequeath the whole of my residuary estate to and amongst my then surviving descendants in such manner that the same shall be divisible per stirpes among the children, grandchildren and remoter issue of such of my children as shall have left issue.’ The testator left four children one of whom died without issue. It was held that the children of the testator formed the stocks of descent and the estate became divisible into three equal parts, one of which should go per stirpes to the issue of each of the testator’s three children who left issue. Distribution where there are no lineal descendants S. 41. Rules of distribution where intestate has left no lineal descendants.—Where an intestate has left no lineal descendants, the rules for the distribution of his property (after deducting the, widow’s share, if he has left a widow) shall be those contained in sections 42 to 48. Though the term male ‘lineal’ descendant could mean either a son through son or daughter, if it had been followed with the expression, ‘surviving’ to read as ‘male lineal descendent surviving’, in the traditional Hindu law concept of survivorship being applicable to male descendants from one generation to another, it shall be interpreted as a person coming through the male line only.®° Rules of distribution.—Sections 42 to 48 lay down the rules of distribution of the property of an intestate, where the intestate had died without leaving children or remoter lineal descendants and the rules of distribution are as under in order of priority. 58. Re Ross’ Trusts, (1871) LR 13 Bq 286. 59. Sidey v. Perpetual Trustees Estate Co. Ltd., (1944) 2 AI ER 225. 60. Zakir R. Joshi v. Burzor R. Joshi, (2007) 2 Bom CR 610 : (2009) 109 Born LR 342.94° 8.42 Part V—Chap. 2—Rules in cases of Intestates other than Parsis () | Widow Father (5.42) 12 2 2) | Widow Mother, Brothers and Sisters (5.43) 2 1/2 equally @) | Widow Mother, Brothers, Sisters and (5.44) 12 Children of any deceased Brother or Sister 1/2 equally per stirpes @) Widow Mother and Children of (s. 45) 12 Brothers and Sisters 122 equally per stirpes © | Widow Mother (5.46) 12 12 © | Widow Brothers and Sisters and (s.47) 12 Children of predeceased Brothers and Sisters 1/2 equally per stirpes (| Widow Remote kindred (5.48) 12 1/2 (in the nearest degree) S. 42. Where intestate’s father living—If the intestate’s father is living, he shall succeed to the property. Father's Share— (1) One-half when the intestate leaves a widow. (2) Whole when the intestate has left no widow. Note —Father excludes any other kindred.61 Although a father and son of the intestate stand degerndantt 4°eFee of Kindred the father is excluded when there is a son or seten ited inder {his section, a Hindu father can succeed to the property of his son convert to Christianity. ®2 Where a Christian woman died leaving no lineal else than her father, but a Hindu, the father was hel deceased. The religion of the claimant is immaterial, but the deceased vat hove been a C} at the time of his or her death.© 247th Law Commission Report—Commenting on the scheme of the Act where in the absence of lineal descendants, father succeeds to property and mother gets no share, the Report observes that the “Preferential approach is wnt large.” Drawing on the comments of 110th Law Commission Report that the lant was in i 61. Administrator General v. Anandochari, 9 Mad 466, 62. Ibid. 63. Thevan v. Matherkuthy, AIR 1990 NOC 47 (Ker) : (1989) 2 KLT 663.Where intestate's father dead, but his mother, brothers and sisters living $.43 95 need of reforms on the point of being discriminatory to women, the current report declared that the reform was “not only timely but becomes more glaring when one looks around and finds that in many other jurisdictions the law on the point is more sensitive and egalitarian.” It went on to say, “ the law envisioned under Sections 41 to 49 deserve change so as to protect interest of Chritian women, especially in case of mother of deceased intestate. It is suggested that provisions of Section 42 which weaves an archaic principle of giving superior status to man in access and owning property needs to be revised.” The suggested amendment, the Commission noted was to ensure that estate of deceased intestate (leaving apart the half for the deceased’s widow, if living) is distributed equally. Such change would constitute a positive step in ensuring that the law is fair and just towards Christian women. The suggested amendment is: Where intestate’s parents (father and mother) living—If the intestate’s parents (father and mother) are living, they shall succeed the property equally. S. 43. Where intestate’s father dead, but his mother, brothers and sisters living.—If the intestate’s father is dead, but the intestate’s mother is living and there are also brothers or sisters of the intestate living, and there is no child living of any deceased brother or sister, the mother and each living brother or sister shall succeed to the property in equal shares. Mlustration A dies intestate, survived by his mother and two brothers of the full blood, John and Henry, and a sister Mary, who is the daughter of this mother but not of this father. The mother takes one fourth, each brother takes one-fourth and Mary, the sister of half blood, takes one-fourth. Mother’s share.—Mother shares after the father if there are no lineal descendants. Amongst Parsis, the mother shares with the father equally (s. 55). The share of the mother is ascertained as follows: Widow’s half share is to be deducted first, if there is a widow of the intestate. The other half is then divided amongst the mother and brothers and sisters per capita equally, when there are brothers and sisters only. The brothers and sisters of the intestate whether of full blood or of half blood are equally entitled (see illustration). If there are no brothers or sisters or the children of brothers or sisters, the mother takes the whole (s. 46). Note—A grandfather and a grandmother of the intestate, although they are in the second degree of kindred like the brothers and sisters, are excluded from the distribution, so long as the brothers and sisters are the sharers. Examples () | Widow ‘one brother two children ofa grandfather 12 4, deceased sister (takes nothing) 1/4 (equally) (2) | Widow brother's grandson grandfather 1/2 | (takes nothing, grandfather is of % nearer degree)96 $.44 Part V—Chap. 2—Rules in cases of Intestates other than Parsis Step mother.—A step mother is not a kindred of the intestate and the word ‘mother’ does not include a step mother. 4 247th Law Commission Report recommendation.—Where either of. intestate’s parents is dead- If either of the intestate’s parents is dead, the other parent shall succeed to the property. Illustration: & dies intestate, survived by either father or mother, the surviving parent as the case may be shalll take the entire property. S. 44. Where intestate’s father dead and his mother, a brother or sister, and children of any deceased brother or sister, living —If the intestate’s father is dead, but the intestate’s mother is living, and if any brother or sister and the child or children of any brother or sister who may have died in the intestate’s lifetime are also living, then the mother and each living brother or sister, and the living child or children of each deceased brother or sister, shall be entitled to the property in equal shares, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate’s death. Mlustration A, the intestate, leaves his mother, his brother John and Henry, and also one child of @ deceased sister, Mary, and two children of George, a deceased brother of the half blood who wes the son of his father but not of his mother. The mother takes one-fifth, John and Henry cach takes one-fifth, the child of Mary takes one-fifth, and the two children of George divide the remaining one-fifth equally between them, Note—Mother, brother or sister and a child or children of any predeceased brother or sister share equally per stitpes. The representation is to be carried upto the children of brothers and sisters and not beyond, If there are no children of brothers and sisters the rule is to count the number of degree of relationship. 247th Law Commission Report recommendation.—Where intestate’s father and mother are dead and his brother or sister, and children of any deceased brother or sister living— If the intestate’s father and mother are dead but if any of the intestate’s brother or sister and the child or children of any brother or sister who may have died in the intestate’s lifetime are also living, then each living brother or sister, and the living child or children of each deceased brother or sister shall be entitled to the property in equal shares, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate’s death. . Mlustration A, the intestate, leaves his brothers, John and Henry, and also one child of @ deceased sister, Mary, and two children of George, a deceased brother of the half blood who was the son of his 64. Rutland v. Rutland, 2 P Wms 216.Where intestate’ father dead, but his mother, brothers and sisters living S.46 97 father but not of his mother. John and Henry each takes one-fourth. the child of Mary takes one- fourth, and the two children of George divide the remaining one-fourth equally between them. S. 45. Where intestate’s father dead and his mother and children of any deceased brother or sister living.—If the intestate’s father is dead, but the intestate’s mother is living, and the brothers and sisters are all dead, but all or any of them have left children who survived the intestate, the mother and the child or children of each deceased brother or sister shall be entitled to the property in equal shares, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate’s death, Illustration A, the intestate, eaves no brother or sister, but leaves hhis mother and one child of a deceased sister, Mary, and to children of George, a deceased brother. The mother takes one-third, the child of Mary takes one-third, and the children of George divide the remaining one-third equally between them, Scope of section.—If there are no lineal descendants, nor father nor brothers nor sisters but mother and children of brothers and sisters (whether of full blood or half blood), the division is equal, ie. one share goes to mother and one share to each brother and sister who have predeceased the intestate leaving a child or children him or her surviving. Example Mother Brother’s son Sister's son Grandfather us us 13 (takes nothing) 247th Law Commission Report recommendation —Where intestate’s father and mother are dead and the children of any deceased brother or sister living- If the intestate’s father and mother are dead, and the brothers and sisters are all dead, but all or any of them have left children who survived the intestate, the child or children of each deceased brother or sister shall be entitled to the property in equal shares, such children (if more than one) taking in equal shares, only the shares which their respective parents would have taken if living at the intestate’s death. Illustration A, the intestate, leaves no brother or sister but one child of deceased sister, Mary and two children of deceased brother George. The child of Mary takes one-half, and the two children of George divide the remaining one-half equally between them. S. 46. Where intestate’s father dead, but his mother living and no brother, sister, nephew or niece.—If the intestate’s father is dead, but the intestate’s mother is living, and there is neither brother, nor sister, nor child of any brother or sister of the intestate, the property shall belong to the mother. Share of mother.—If there are neither lineal descendants, nor father, nor brothers, nor sisters, nor children of brothers or sisters of the intestate, then, subject to the right of the widow, if any, the mother takes the whole98 8.47 Part V—Chap. 2—Rules in cases of Intestates other than Parsis Examples @ Widow Brother's grandson, ‘Mother % (takes nothing, the representation 2 is not to be carried beyond brother's and sister’s children) Q) | Mother, whole Grandfather, grandmother (lakes nothing) 247th Law Commission Report recommendation.—May be omitted, as Consequence of suggested amendment to section 43 mentioned above S. 47. Where intestate has left neither lineal descendant, nor father, nor mother—Where the intestate has left neither lineal descen dant, nor father, nor mother, the property shall be divided equally between his brothers and sisters and the child or children of such of ther ae may Rave died before him, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken sf living at the intestate’s death, In Re Mr. R.R. George Christopher and Mrs. Kristy Chandra,® the Madras High Court has held that there is no prohibition under the Canon law for adoption. It has seen through s. 41 of the Juvenile Justice (Care & Protection of Children) Act, 2000 such a power as obtaining for a Christian parent to adopt a child, 247th Law Commission Report recommendai —Where the intestate has {eft neither lineal descendant, nor father, nor mother, but has lefta brother ans sister, Unt Property shal be divided equally between his brothers and sisters and the chink children of such of them as may have died before them, such ehildsen (if more than eyo) ‘ing in equal shares only the shares which their respective parents would have taken if living at the intestate’s death. S. 48. Where intestate has left neither lineal descendant, nor parent, nor brother, nor sister—Where the intestate has left neither lineal descendant, nor parent, nor brother, nor sister, his property shall be divided equally among those of his relatives who are in the nearest degree of kindred to him. Mlustrations (0 4, the intestate, has left @ grandfather, and a grandmother and no other relative standing in the same or a nearer degree of kindred to him. They, being in the second degree, will be entitled to ee 65. Rabi v. Josh Leela, (2000) 3 Mad LW 409, 66. ReMi. R.R. George Christopher and Mrs. Kristy Chandra, A:No.280S of 2009 in OP No 717 of 2007 dated 27-7-2009.Where intestate has left neither lineal descendant, nor father S.48 99 the property in equal shares, exclusive of any uncle or aunt of the intestate, uneles and aunts being only in the third degree. (i) A, the intestate, has left a great-grandfather, or a great-grandmother, and uncles and aunts, and no other relative standing in the same or a nearer degree of kindred to him. All of these being in the third degree will take equal shares. (iii) A, the intestate, left a great-grandfather, an uncle and a nephew, but no relative standing in a nearer degree of kindred to him. All of these being in the third degree will take equal shares. (iv) Ten children of one brother or sister of the intestate and one child of another brother or sister of the intestate, constitute the class of relatives of the nearest degree or kindred to him. They will each take one-eleventh of the property Distribution of property in absence of lineal descendants, ete—The representation is to be carried upto the brothers and sisters and not beyond. If there are neither lineal descendants, nor parent, nor brother, nor sister, then, subject to the right of the widow, the estate goes to the next of kin who are in the nearest degree of kindred. The degree is ascertained by computing up from the intestate to the common ancestor and then down to the claimant, all the next of kin of equal degree sharing inier se. It should also he noted, that although, when there are brothers or sisters of the intestate and the children of any deceased brother or sister, such children take per stirpes and not per capita, still when there are no brothers or sisters but only children of brothers or sisters, such children take per capita and not per stirpes see Must. (iv). Examples oO Widow grandfather] grandmother uncle % 4 4 (taking nothing being of third degree) (@ | Great-grandfather uncle nephew (Allare of the third 13. 13 13 degree) @ Widow ‘great-grandfather uncle % 1/4 ua Great-grandfather and uncle both share as they are of the third degree. The Succession Act does not concern itself with the religion of the claimant for succession, although the religion of the deceased plays an important role, and indeed, it is almost the determining factor in the matter of applicability or otherwise of the rule of succession laid down in the Act to a particular case, and that this distinction n the nature of character of the relevant estate, depending upon the religion of the deceased owner runs through the Act. But stress is nowhere laid in the matter of its devolution upon the religion of the heir or the inheritor and that the religion of the claimant as distinguished from the religion of the deceased owner is entirely irrelevant for the purpose. 4 Christian died intestate and his nearest heir being Hindu, inherits the estate of the deceased.6? 247th Law Commission Report recommendation.—Where the intestate has left neither lineal descendant nor parents, nor brother, nor sister, his property shall be 67. ddin-General of Madras v. Anandachari. ILR. 9 Mad 466; Benoy Kumar Mondal v. Panchanon ‘Majumder, AUR 1956 Cal 177; Sirl Christian v. Magnamura, AIR 1964 Assam 59.100 $,49 Part V—Chap. 2—Rules in cases of Intestates other than Parsis divided equally among those of his relatives who are in the nearest degree of kindred to him, Explanation.—Where such relatives are children of brothers or sisters of the intestate, they shall take stirpes. Mlustrations (i) A, the intestate, has left a grandfather, and a grandmother and no otior relative standing in the same or a nearer degree of kindred to him. They, being in the second degree. will be entitled to the property in equal shares, exclusive of any uncle or aunt of the intestate, "sand aunts being only in the third degree. (ii A, the intestate, has left a great-grandfather, ur a great-grandmotise and no other relative standing in the same or a nearer degree of Kindred to lau. *! the third degree will take equal shares. (iii) A, the intestate, left a great-grandfather, an uncle and a nephew, bi no relative standing in a nearer degree of kindred to him. Alll uf these being in the thi ee will take equal shares. cles and aunts, of these bing in (i) Two children of one broterh or sister of the intestate and one child of another brother or sister of the intestate, constitute the calss of relatives of th» nearest degree of kindred to him. Half ‘of the property shall Ibe shared by two children in equal si ..s and the remaining halt shall go to ‘one child of another brother or sister. To be more spe. . »..0 children of one brother or ‘sister of the intestate shall take one-fourth each while one chi.’ «t another brother or sister of the intestate shall take half of the property. ‘The Commission has noted within parenthesis: No doubt it may sound at little at unease, but the accident of the death of one issue should not aftec: the share of his or descendants, Even in 5.47 where there are brothers or sisters and also children of brother and sisters the succession ig per stirpes. There appears to be no justification for having a different rule under s. 48. at leact ‘where the persons entitled are children of brother and sisters), S. 49. Children’s advancements not brought into hotchpot.— Where a distributive share in the property of a person who has died intes- tate is claimed by a child, or any descendant of a child, of such person, no money or other property which the intestate may, during his life, have paid, given or settled to, or for the advancement of, the child by whom or by whose descendant the claim is made shall be taken into account in estimating such distributive share. Advancement.—Section 49 is a complete repeal of the English doctrine of advancement.6 According to the English statute of distribution, in case of intestacy, iff child has received payments by way of advances, he must bring that amount into hotchpot before he can get his distinctive share in the estate. Here, by this section, a child is not required to do so; he can retain the benefits as well as claim a share in the estate. In India, apart from this section, s. 82 of the Indian Trusts Act 1882 enacts in respect of property transferred to another person in whose favour there is no presumption of advancement, that the transferee must hold the property for the benefit of the person paying the consideration money. There is, therefore, no presumption of advancement in case of persons of Indian domicile. But in case of 68. Siddiga v. Abdul Jabar, (1942) All 478.Children's advancements not brought into hotchpot S.49 101 persons of British paternity residing in India, the rule of English law is made applicable, and is to be presumed. Even in the case of Anglo-Indians, i.e persons of mixed European and Asiatic descent in India, such persons are governed by the principles applicable to persons of English descent resident in India and the presumption of intended advancement is allowed to be raised, but this presumption may be rebutted by evidence showing the real nature of transaction.7° Parsis.—In the case of Parsis, although this section does not apply to Parsis, and although in Dhanjibai Bomanji v. Navazbai,!" it was held that the English rule of advancement should not be applied to Parsis, the Bombay High Court has allowed the application of the doctrine of advancement at common law to Parsis in India, as laid down in Naoroji v. Rogers.?? Coyajee J, has in Suit No. 271 of 1953 (OS)? observed: 1 may say that as regards the theory of advancement being made applicable to Parsis, it has become such a well-settled law by this time that several recent decisions on originating summons have been answered by the learned judges without finding any necessity to deliver judgments on those questions. Under the general law of India, there is no presumption of an intended advancement (as in England) in the case of purchases of immovable property by the husband in the joint names of himself and his wife or in the name of his wife or in the name of his child, The Privy Council has held that there is no presumption in favour of wife. In Kerwick v. Kerwick,’> the Privy Council observed that where a transaction takes place between two persons born in India of a British family who have resided practically all their lives in India, the English practice of the Chancery Court of advancement should be applied with great caution. In that case, a property was purchased by an Englishman residing in India benami in the name of his wife and the wife claimed it as an advancement. It was proved that the husband was aware of the practice prevailing in India of benami purchases and the wife’s claim was negated. In Paul v. Nathaniel Gopalnath,”® a husband made a fixed deposit of money in a bank in the joint names of himself and his wife repayable to himself or his wife or survivor and it was held that there was no gift to the wife. If the deposit receipt was given to the wife, that would have been a proof of gift. Evidence of advancement.—The acts and declarations of the parties before or at the time of the purchase or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against a party who did 69. Alice Georgeian v. Suna Berthar Bertha, AIR 1930 Oudh 441. 70. Clement Saigon v. Mabel Saigon, AIR 1933 Nag 337. 71. Dhanjibai Bomanji v. Navazbai, ILR 1878 2 Born 75, 72. Naoroji v. Rogers, (1867) 4 BHCR 1 73. Darasha Bharucha v. Dr. Edi Phiroz Bharucha, (unreported). 74. Guran Ditta v. Ram Ditta, 55 1A 235; Shambhu Nath v. Pushkar Nath, AIR 1945 PC 10: 47 Bom LR 597 (PC); Keshavial Tribhovandas v. Bai Dahi, (1942) 44 Bom LR 839 : AIR 1943 Bom 7; Mabel Panion v. Adm-General, (1926) 28 Bom LR 11 73, Kerwick v. Kerwick, (1921) 23 Bom LR 730 (PC). 76. Paul v. Nathaniel Gopatnath, (1931) LR 53 All 633.