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86 views13 pagesChristian Intestate Succession
law
Uploaded by
Naing AungCopyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
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/ 13
satestate Succession :
2 esate SuCEESSON is defined jn SHON 30 of Succes
to die intestate in respect of ay Property ues a
sary disposition Which is capable Of taking eff 7 ae Seem
sntestaey is also defined asa state in Which i
siting Fa oF propery” tnay i a
sat intesany where INE deceased does nop effective hes ee
ust in any of is Property by wi Thor i nae ac
ea — Vestcy ‘Where the deceased
Deneficial interest in his property by
we
@ person di
. leaves no will :
«aly eps executors but des nt dsp of ny bivdelniens
‘Property; a partial intestacy arises
tate
whena wil deals with only pat of the estos ea
Where the deveased has let property with
te slate sueeession mentioned in
Suocession
Under the Succession Act, the heirs shall be clasitied into three types, the
spouse, the lineal descendants andthe kindred. The heirs must be legitimate heirs,
Inan intestate succession, the property shall goto the heirs of the deceased in
secordance with the provisions of the Succession Act I there is a surviving widow,
the property shall be divided between the widow and co-heits. If there is a surviving
widow and lineal descendants, the property shall be divided between a surviving
widow and lineal descendants. If there is no widow and lineal descendant, the
property shall go to the kindred.
(1) Succession between Widow and Co-heirs
Ifthe intestate left a widow, the property shall be divided in accordance with
section 33 ofthe Succession Act. In case of intestate susesin, the widow must be
the intestate’s legally married wife. A valid marrage mus be subsisted between them
until the death of the intestate.
" eition, Oxford University Press, 1997, p, 244,
2* edition, Thomson Reuters, 2009, p. 7
* edition, Oxford University Press, 1997, p, 244,
Ta ian of LA
cof Svensson
Dior of Law
& elabeth A. Mari
5 Rodger Kerrida®, 7
© Blabein A. Mari 7 jotestate has left a widow: 17
gas 0 ef ny il dese,
O tone his iow, and the Tenining man
senda according othe es herent, Us Shall 80 to
. t
ig he bas left no lineal descendany, es Contained;
Ouse im, oneal oF ropery Tet Pens who are of
pe ober hall Shall £010 thse who ay ie his widow, =
od according tothe rules hereinafter fit cindred to, i
ite as le 0 Who ar Okina him,
pal belong to is widow." * Ie Whole ofthe property
shal
lineal
0 bin in the rer
@
spy the three rules of distibution areas unr
o™ r ,
0 if he sUrvivO ae & widow and neal desenda
she widow tes one third andthe tna desoag
‘ endans two thins;
oy ie suVvOTs ea Wow sod Kind ay tet my |
4 lineal
if the survivor is only wi
® eee YY widow and no kindred, the widow wil tke
owever, a widow is not entitled if there isa valid contrat made before her
posts be00 excluded from her distribution share of her husband’s estate."
‘According to the widow's rights, it continues in all cases except that referred
spdeespanaton, provided hat valid manage suse between he desl and
dette dat of is death. Therefor, ifthe mariage ha sn dished under
spe Actor oterise before the death of the decease, te widow wha, by sich
Je, is regulated to the position of a spinster, cannot take. On the other hand,
sig other than divorce or nullity of marriage would be sufficient to takeaway the
‘ghatte widow. A mere separation is ineffectual o deprive the right ofthe widow
tyiheritance
“4 husband surviving his wife has the same rights in respect of her property if
sds itesate, as a widow has in respect of her husbands property, ihe dies
imate?
a eo ofthe Succession Act, 1925.
{Bplnaion ofthe section 32 ofthe Sueession Act. Cale
Gant Gp, “The Indian Suession A iio, N. M.Repebowdhury Co La Cale
80.28.
‘Seton 35 ofthe Succession Act, 1925. if the wife is a jugi,
pee Judicial separa 138
ivoee et te Shall be consid, tt Wile
gee POPES S38 85 he *S Unmatied yoo 2 of
i, .
Papeete ithe
ener here are no lineal descendants husband
yo accordance with Section 41 to section gg se i Ppeny sha
eee a
Pi orsieession At, “het a neste, OF the Suoee... Ibe
ye distbution of his propery (fer eft no tinea
gee savived by his mother and two brothers of ees 4 43 that A dies
spas MAN who is the daughter of his mother but not eae and Henry
2 cof, cach brother takes one-fourth and Mary, the sister ces
sjesone fourth
‘tie intestate’s ia is dead but the imesate’'s moter ising, nd if ny
sane orsister and the child oreildren of any robe or sister who may tae did
ye iestate’s lifetime are also living, then the mother and each ving bother ¢
ge, andthe living child oF children of each doosased brother or sis, shall be
cailed to the property in equal shares, such children (if more than on) taking in
cal stares only the shares which their respective parents would have taken f tivng
athe intestate’s death.”®” “If the intestate’s father is dead, but the intestate’ mother i
hing and the brothers and sisters are all dead, but all or any of them hve left
Gilien who survived the intestate, the mother and the child or etildren of each
deeased brother or sister shall be entitled to the property in equal shares, such
tilden (if more than one) taking in equal shares only the shares which their
‘eeetive parents would have taken if living at the intestate’s death. For illustration,
easier eee
s, Setion 42 of the Succession Act, 1925.
«y bid, section 43.
+ lsraton Setion 43 ofthe Succession Aet, 1925
a Sion 44 of the Succession Act, 1925,
Tid, section 45; ¢, leaves n0 brother or sister, but ley 1%
es
: his
er, Mary ee two children ofa decease * Mother and one cig of
yd te il of Mary takes one George. 7 ii
959mg onethid equally bet vay te he te te
jing one" ly between them. Kren of George div de
i sane
ines’ aes eat bt na
parents would have taken ifliving atthe intesate's de
: 8 death."
In the case of Daw Kalinar (a) Ma Kar v, Daw Ruth Mary Yan", th
the plaintiff
i defendant were the Tndian Burmese races and belived the f
rey were nieces of the owner of estate, U Michael. He had ae 7 eos
yichael passed away. Hee had no child and he lived with his nieces, i a ‘i
1a Kar, Daw Ruth Mary Yan (a) Daw Mar Yi Yar, Ma Ko Lo Yi Yar and Ma Jai
gose (8) Ma Joe Joe, The plaintiff and defendant are natural nieces. So, they are
cated to the right of inherit as nieces. Daw Kalmar made an aplication forthe grant
af succession certificate, Succession certifiate was granted to the plaintiff by the
Court.
here the intestate has left neither lineal descendant, nor parent, nor brother,
ror sister, his property shal be divided equally among those of his relatives who are
inthe nearest degree of kindred to him. 08 jp illustrations mentioned in section 48, A,
intestate has left a grandaher and a ean, and no other relative standing
cet same ona nearer dee of Kindo him. Thys ent tne second deare,
vill be entitled to the property it qual shares, exclusive of any ule or aunt of the
ing only in
intestate uncles and aunts be
satestate, and one
af one brother of sister of he ESA
the third degree. In another case, ten children
child of another brother or sister of
ns.
ees a 1
> —— xin 45 of te SE 905.
Tlustation, section on ACh |
1 eS ofthe SUCCESS net, 1925.
wn Seton ie serene
a repeat Oey, 1925
mas Ci Mie ee
ection 48 oF 140
constitute the cass of relatives ofthe
Reatest degree of i ir
gas one-leventh of is property 0 Sethi Tey
ill jion 42 to section 48 lay a i
section ; 'Y down the rules of, distribution of the Property of
ssate where the intestate has died with
: leaving children or remoter li
o cendants and the rules of distribution as under in oe
ws
Order of priority
Wilow and Father
i %
@ Wiow and Mother, Brothers and Sisters
a ‘A equally
@) Widow and Mother, Brothers, Sisters and
Children of any deceased
Brother or Sister
‘A equally per stipes
Ce eowiated sant Mother and Children of
* Brothers and Sisters
‘Y equally per stripes
(©) Widow and Mother
% %
(© Widow and Brothers and Sisters and
% Children of predeceased
Brothers and Sisters
Ys equally per stripe
cindred
() Widow and a - se
%
thatthe father has priority over the mother when it comes to
Hi ie i mother, brother and sister shall have equal shares. If the
oe oe the nearest degree shall be reckoned and if they are
kindred are remote
re degre hey Wl gett SS
within the
ofthe Succession Act, 1925. as
(and " Seecesion At edn, C. amnadas and C., Bookseller
te ian
iustration
section 8
Noire gnc ocismiave sare nthe propery op Ma
pyactild oF 89 eseendan ofa hig op Pet hs dng intestate
; w pane me EY, Sing is i 2
# asooment of, the child by whom or by Mae or
lose
© Money oF other
Biver
srt in siatng Pate:
; 0h dae i
Cone ating to hae hays AE ae
oO, provision relating 1 Lineal consenguiny
we "nity is provided in sey
jot Act. ee Section 25 of
at ineal consanguinity is that which sbsigg
sessed in 8 te ne Flom the,
ox aed greaterandfather, and $0 upwards
On nan and bis son, grandson,
i ie
ation consti :
@) Every generation constitutes a degree, ether ascending or descend
(@)Aperson’s father is related o im inthe fist dee, ands tesa
j, gander nd randson in the second detest weg ne
os his Ca ‘ ‘ree; his great-grandfather and
_qsaison in he tird degree, and soon
‘he table of consanguinity shall be found in Schedule I ofthe Suscsson Act
span bo seo in Appendix No, 4 ofthis thesis,
‘Therefore, if there are lineal descendants, no property shall be taken by the
| But if there is no lineal descendant, one-half ofthe i
sine. Property will go to the
saw and one-alf of the property will go to the kindred. Moreover, i thee is no
sidywand lineal descendant, the property shall goto the kindred
{succession between Lineal Descendants
Ifthe deceased has left no widow, his property shall be divided between lineal
descendants in accordance with the Succession Act. Lineal descendants include only
legtimate relations and not offspring of unlawful union. The legitimacy of ofspring
is however, not necessarily determined by the domicile of the deceased at his death,
Iutby his domicile atthe time of mariage and atthe time ofthe bith ofthe children,
A cid 0 be legitimate must be so by the law of domicile of the parents both at
‘aniage and at its birth.'"”
setters res eee
nn Séstion 49 ofthe Succession Act, 1925.
lance Gupta, “The Indian Succession Ae",
1950,p. 31,
5 edition, N. M:Roychowahury Oo» Lid, Caleut, intestate has left no wi
ane oe who are of ki WOW, bis po a
po : kindred to hin, PEMY shall got
PP gress contined nite 8 el tis nea
ei Py ° to the Government"!
i and j
"Thebes ie none vin
80 Of
the intestate has left Surviving him of kindred
a
Child oro
Foleo
eae oF U KYAN 04 OY. Der Vers yg
e , Daw Si va5 a Cestn Seid ayy f
oF gay Toren the property lft by her shall be en
1 gs of Suseession Act. There was als no due
‘ny will before she
vided in accordance with
a a
7 as the biological daughter ofthe deceased, No ms respondent, Daw
ition or prohibition
19 ine Succession Act thet the Bud
jgned 0 idhist child could
ot have the right of
‘one the property of the deceased Christian parent,
‘he con of the estate shall inst a ut for adinisrion aun er
ipclsim his or her share of he intestate propery, Ther isn eso cl
f f ima
worse sek of the intestate property,
where the intestate has not left surviving him any child, but has left
4g or grandchildren and no more remote descendant through 2 deceased
svren, the property shall belong to his surviving grandchild, i here is nly
xsl be equally divided among al his surviving grande, m
According to section 40 of the Succession Act,
(1) Ifthe intestate has left lineal descendants who donot all san in he
same degree of kindred to him, and the petsons through whom te
rrore remote are descended from him are ded the port shall
divided into such a numberof equal shares wih the mame of the
nea! descendants of the intesiate who eier stood it the nearest
degree of kindred to him at his decease, of, having been of the ‘ike
degree of Kindred to him, died befor
«him, eaving lineal dsseendan’s
who survived him.
1 stn 34 ofthe Succession Act, 1925:
subi section 37.
nSSBLR77.
Sextion 38 of the Succession Act, 1925: oe of sich SHOES Shall be toga
stood in the nearest de, Cah OF the 5.
aol teal lie decent
sem Of such she shat bg” iste
uch deceased neal descendans Theses ta a bis
af such deceased lineal descendants yp ted tof each of
Q
0
orchildfen oF more Temote lineal de
ofthe estate of the intestate Which is also the share ofthe Shall entitle to
the case of Daw Khin Mu Mu and one v. Dr. G, fi ae
_gate, DR. Lewis and Mrs. Imfar Florence Lewis were Chistians,
sesso! leaving @ vil ‘he respondent, Dr. G. R Lewis Cee hes
sono el heir of the deveased and misrepresented the ie :
ssaing oe BTS The father and mother ofthe apetans passed ayay ae
sg ppiliants! grandparent, So that the appellants were out of time grandchildren
see was no restriction to Buddhist grandchildren to sucel the esate of e
peipaots Therefore, the appellants Would have height suse the propery
ssordance withthe provisions of Succession Act
wl
the over of
‘Anyone of the heirs, who has the right of succession to the property let by
st, shall institute a suit for administration. Administration sits may be brought
yay person interested in the estate for administration of the estate by the Court,
Suh its may be and’are usually brought by a creditor in a representative capacity,
«vtmay be brought by a creditor or legatee or next of kin, forthe realization of thet
onnclaims after due administration."*
‘The only persons who can make a suit for administration are (1) a creditor, @)
‘Ulgatee, (3) a next-of-kin, and (4) an executor or administrator.!"* In a suit for
m MLR4O.
(222 MLR 204, i Clout,
Clana up “The Indian Sucesion Ac’ 3 etn, NM. Rept? Co, Li
«80, pp. 615-676.
alive . Ma Tin Oo, 1953 B.LR (H.C) 29- itt all the eg of the deceased why ae 14g
ee enn te Pais tthe Tego 1 have interest
1 yl” ae ei are not included the patties e It shall not
’ the st
yt peritane® POET, Duals th in ui The htc en
ji RSIS from ld enjoy not
ogi Such propery inthe suit
or
is open t0-any Party to an adninistaton g
tte properties belonging to the estate of the
gointft in the list of properties given by him or
in the property
Rssa decree in the cae
nit
‘0 allege and to prove thet,
oe ave been left out by