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Note on the Indian Succession Act, 1925

[In this article provisions of the Indian Succession Act, 1925 which are part of the syllabus for Departmental Examination for Inspector of Income Tax are discussed. To achieve simplicity some finer aspects are removed to give a firsthand account of the provisions of the Act. In case of any doubt please refer to the Act. Digit mentioned in third brackets refer to section]

The Indian Succession Act, 1925 has 392 sections, XI Parts and VIII Schedules. This act is applicable to intestate and testamentary succession of Hindu (H), Muhammadan (M), Buddhist (B), Sikh(S), Jaina (J). Parshi (P) and Indian Christian (I) and certain exempted persons (E). Provisions of some of the Parts/sections of the Act do not apply to persons of all faith; therefore it is important to know whether a particular part/section is application to such persons or not. If a Hindu die intestate (without making any will or other testamentary disposition) the Hindu Succession Act, 1956 shall apply but when a Hindu makes a will (testamentary) then the Indian Succession Act, 1925 shall apply.

Some important terms

A person may die making or without making a “will”. The person who makes the will is known as “testator”. "Will" means 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. Where after making will, some alteration or addition is made in the will then such instrument is known as “codicil”. Where the testator in the will appoints a person to execute the will then that person is known as “executor”. If no executor is appointed by the testator then the competent authority appoints a person to execute the will such person is known as “administrator”. "Probate" means the copy of a will certified by a Court with a grant of administration to the estate of the testator. “Probate” is granted when the testator died appointing an executor in the will. “Letter of administration” (LOA) is granted where there is no will or there is will but executor has not been appointed by the testator. "Indian Christian" means a native of India who is of unmixed Asiatic descent and who professes any form of the Christian religion. "Minor" means any person who has not completed the age of eighteen years. “Kindred” is the connection/relation of persons descended from the same common ancestor.

Provisions relating to Domicile

If the deceased was a HMBSJ [Hindu, Muhammadan, Buddhist, Sikh, Jaina] the provision relating to Domicile shall not apply. [4] Any person resident in India for one year may acquire a domicile in India by making and depositing in some office in India a written declaration of his desire to acquire such domicile. [11] Except where the minor is married, or holds any office/employment in the Government service, or has set up, with consent of the parent, in any distinct business, the domicile of a minor follows the domicile of the parent from whom he derived his domicile of origin. [14] If a person dies leaving moveable property in India, in absence of proof of any domicile elsewhere, succession to the property is regulated by the law of India. [19]

Provisions relating to Intestate Succession

If the deceased was a HMBSJ the provision relating to intestate succession (with one exception) shall not apply. [29] A person is deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect. [30] The property of an intestate devolves upon the wife/ husband, or upon those who are of the kindred of the deceased, in the order and according to the rules of Chapter II of Part V. [32] 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, (b) if he has left no lineal descendant, but has left persons who are of kindred to him, one-half of his property shall belong to his widow, and the other half shall go to those who are kindred to him; (c) if he has left none who are of kindred to him, the whole of his property shall belong to his widow. [33] Where the intestate has left no widow, his property shall go to his lineal descendants or to his kindred, not being lineal descendants, and, if he has left none who are of kindred to him, it shall go to the Government. [34]

Provisions relating to testamentary Succession

The provisions relating to testamentary Succession, with some modification as per Schedule III, shall apply to all wills and codicils made by any HBSJ, but marriage shall not revoke any such will or codicil. [57] It shall not apply to testamentary succession to the property of any Muhammadan nor, (except as provided by section 57) to testamentary succession to the property of any HBSJ; [58] Every person of sound mind not being a minor may dispose of his property by will. [59] A father by will may appoint guardian(s) for his child during minority. [60] The making of a will which has been caused by fraud / coercion /importunity takes away the free agency of the testator, is void. [61] A will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by will. [62] If any benefit is given to any person or to his spouse through will and the person has attested the will then it shall not be deemed that the will is insufficiently attested. But the bequest or appointment shall be void so far as concerns the person so attesting, or the wife or husband of such person, or any person claiming under either of them. [67] Every will shall be revoked by the marriage of the maker, except a will made in exercise of a power of appointment, when the property over which the power of appointment is exercised would not, in default of such appointment, pass to his executor/ administrator, or to the person entitled in case of intestacy. [69] No unprivileged will /codicil/ part thereof, shall be revoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.[70]

Provisions relating to representative title to property of deceased on succession

The executor/ administrator of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him. But when the deceased was a HMBSJPE, then the property of the deceased person would passed by survivorship to some other person and the property shall not vest in an executor/ administrator [211] Without LOA granted by a Court no right to any part of the property of a person who has died intestate can be established in any Court. However section 212 shall not apply in the case of the intestacy of a HMBSJIP [212] Similarly no right as executor or legatee can be established in any Court, unless a Court has granted probate of the will under which the right is claimed, or has granted LOA with the will or with a copy of an authenticated copy of the will annexed. Section 213 shall not apply in the case of wills made by Muhammadans, but shall only apply in the case of wills made by any (i) HBSJ where such wills are of the classes specified in clauses (a) and (b) of section 57; and (ii) Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, with some conditions. [213]Court shall not pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession or proceed to execute against such a debtor a decree for the payment of his debt, except on the production of a probate or LOA evidencing the grant to him of administration to the estate of the deceased. Here "debt" includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes. [214] A grant of probate or LOA in respect of an estate shall be deemed to supersede any certificate previously granted in respect of any debts or securities included in the estate. When at the time of the grant of the probate or LOA any suit instituted by the holder of any such certificate regarding any such debt or security is pending, the person to whom the grant is made shall, be entitled to take the place of the holder of the certificate in the suit or proceeding. All payments made to the holder of such certificate, which is superseded, in ignorance of such supersession shall be held good against claims under the probate or LOA. [215] After grant of probate or LOA, the person to whom the same may have been granted shall have power to sue as representative of the deceased until such probate or LOA has been recalled or revoked. [216]

Provisions relating to grant of Probate and Letters of Administration

If the deceased has died intestate and was a HMBSJE, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to such deceased's estate. When several such persons apply for such administration the Court may grant it to any one or more of them. When no such person applies, it may be granted to a creditor of the deceased. [218] Where deceased is not a HMBSJE and has died intestate those who are connected with him, either by marriage or by consanguinity, are entitled to obtain LOA of his estate and effects in the order and according to the rules specified in section 219 [219] LOA entitle the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death. [220] LOA do not render valid any intermediate acts of the administrator tending to damage of the intestate's estate. [221] Probate shall be granted only to an executor appointed by the will and the appointment may be expressed or by necessary implication. [222] Probate and LOA cannot be granted to any person who is a minor or of unsound mind nor to any association of individuals unless it is a company which satisfies the conditions prescribed by rules. [223 and 236] Every rule made by the State Government under sections 223 and 236 shall be laid, before the State Legislature. [236A] When several executors are appointed, probate may be granted to them all simultaneously or at different times. [224] If a codicil is discovered after the grant of probate, a separate probate of that codicil may be granted to the executor. if it in no way repeals the appointment of executors made by the will, if different executors are appointed by the codicil, the probate of the will shall be revoked, and a new probate granted of the will and the codicil together. [225] When probate has been granted to several executors, and one of them dies, the entire representation of the testator accrues to the surviving executor or executors. [226]Probate of a will when granted established the will from the death of the testator, and renders valid all intermediate acts of the executor. [227] When a will has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the State, (within or outside India), and a properly authenticated copy of the will is produced, LOA may be granted with a copy of such copy annexed. [228] When a person appointed an executor has not renounced the executorship, LOA shall not be granted to any other person until a citation has been issued, calling upon the executor to accept or renounce his executorship. But when one or more of several executors have proved a will, the Court may, on the death of the survivor of those who have proved, LOA without citing those who have not proved. [229]The renunciation may be made orally in the presence of the Judge, or by a writing signed by the person renouncing, and when made shall preclude him from ever thereafter applying for probate of the will appointing him executor. [230] If an executor renounces or fails to accept an executorship within the time limited for the acceptance or refusal thereof, the will may be proved and LOA, with a copy of the will annexed, may be granted to the person who would be entitled to administration in case of intestacy. [231] When the deceased has made a will, but has not appointed an executor, or the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the will, or the executor dies after having proved the will, but before he has administered all the estate of the deceased, an universal or a residuary legatee may be admitted to prove the will, and LOA with the will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered. [232] When a residuary legatee who has a beneficial interest survives the testator, but dies before the estate has been fully administered, his representative has the same right to administration with the will annexed as such residuary legatee. [233] When there is no executor and no residuary legatee or representative of a residuary legatee, or he declines or is incapable to act, or cannot be found, the person or persons who would be entitled to the administration of the estate of the deceased if he had died intestate, or any other legatee having a beneficial interest, or a creditor, may be admitted to prove the will, and LOA may be granted to him or them accordingly. [234] LOA with the will annexed shall not be granted to any legatee other than an universal or a residuary legatee, until a citation has been issued and published calling on the next-of-kin to accept or refuse LOA. [235]

Provisions relating to Executor of his own wrong

A person who intermeddles (interfere in the affairs of others) with the estate of the deceased, or does any other act which belongs to the office of executor, while there is no rightful executor/ administrator in existence, thereby makes himself an executor of his own wrong. But intermeddling with the goods of the deceased for the purpose of preserving them or providing for his funeral or for the immediate necessities of his family or property, or dealing in the ordinary course of business with goods of the deceased received from another does not make an executor of his own wrong. [303] When a person has so acted as to become an executor of his own wrong, he is answerable to the rightful executor/ administrator/ creditor/ legatee of the deceased, to the extent of the assets which may have come to his hands after deducting payments made to the rightful executor/ administrator, and payments made in due course of administration. [304]

Provisions relating to Powers of an Executor or Administrator

An executor/ administrator has the same power to sue in respect of all causes of action that survive the deceased, and may exercise the same power for the recovery of debts as the deceased has when living. [305] All demands and all rights to prosecute/ defend any action/ special proceeding existing in favour of/ against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the IPC or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory. [306] An executor/ administrator has power to dispose of the property of the deceased, vested in him under section 211, in such manner as he may think fit. But if the deceased was HMBSJE, this power shall be subject to the some restrictions and conditions, including that without the previous permission of the Court by which the LOA were granted, an administrator may not mortgage, charge or transfer by sale, gift, exchange or otherwise any immoveable property for the time being vested in him under section 211, or lease any such property for a term exceeding five years. Before any probate or LOA is granted there shall be endorsement or annexure thereto but a probate or LOA shall not be rendered invalid by reason of the endorsement or annexure required are not made thereon or attached thereto, not shall the absence of such an endorsement or annexure authorise an executor or administrator to act otherwise than in accordance with the provisions of section 307. [307] An executor/ administrator may, in addition to any other powers of expenditure lawfully exercisable by him incur expenditure on such acts necessary for the proper care/ management of any property belonging to any estate administered by him, and with the sanction of the High Court, on such religious, charitable and other objects, and on such improvements, which are reasonable and proper for such property. [308] An executor/ administrator shall not be entitled to receive/ retain any commission/ agency charges at a rate higher than the rate fixed in respect of the Administrator-General by/ under the Administrator-General's Act, 1913. [309] If any executor/ administrator purchases any part of the property of the deceased, the sale is voidable at the instance of any other person interested in the property sold. [310] When there are several executors/ administrators, the powers of all may, in the absence of any direction to the contrary, be exercised by any one of them who has proved the will or taken out administration. [311]Upon the death of one or more of several executors/ administrators, in the absence of any direction to the contrary in the will or grant of LOA, all the powers of the office become vested in the survivor(s). [312] The administrator of effects unadministered has, with respect to such effects, the same powers as the original executor/ administrator. [313] An administrator during minority has all the powers of an ordinary administrator. [314] When a grant of probate/ LOA has been made to a married woman, she has all the powers of an ordinary executor/ administrator. [315]

Provisions relating to Duties of an Executor or Administrator

An executor/ administrator shall, within six months from the grant of probate or LOA, or within such further time as the Court which granted the probate or LOA may appoint, exhibit in that Court an inventory containing a full and true estimate of all the property in possession, and all the credits, and also all the debts owing by any person to which the executor/ administrator is entitled in that character; and shall in like manner, within one year from the grant or within such further time as the said Court may appoint, exhibit an account of the estate, showing the assets which have come to his hands and the manner in which they have been applied or disposed of. The High Court may prescribe the form in which an inventory/ account is to be exhibited. If an executor/ administrator, on being required by the Court to exhibit an inventory/ account intentionally omits to comply with the requisition, he shall be deemed to have committed an offence under section 176 of the IPC. The exhibition of an intentionally false inventory/ account shall be deemed to be an offence under section 193 of that Code. [317]If the domicile of the deceased was not in India, the application of his moveable property to the payment of his debts is to be regulated by the law of India. No creditor who has received payment of a part of his debt shall be entitled to share in the proceeds of the immoveable estate of the deceased unless he brings such payment into account for the benefit of the other creditors. Section 324 shall not apply where the deceased was a HMBSJE [324]

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