1

THE TAMIL NADU

NATIONAL LAW SCHOOL
B.A.LLB, (HONS)
FOURTH SEMESTER
2016

FAMILY LAW PROJECT

ON

CHRISTIAN LAW OF SUCCESSION AND THE

EFFECT OF MARY ROYS CASE

SUBMITTED TO-

PROF. DEEPIKA S. SHIV

( FACULTY)

SUBMITTED BY-

AJAY SINGH MAURYA

(ROLL NUMBER-BC0140005)

ACKNOWLEDGEMENT
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At the outset, I thank the Almighty who gave me the strength to accomplish this
project with sheer hard work and honesty.

I take this opportunity to observe protocol to show my deep gratitude to our

revered history Course Teacher, PROF. DEEPIKA S. SHIV (FACULTY)
for his kind gesture in allotting me such topic as research project, which is full of
knowledge and is related to our future study of the constitution. Her timely
advice, direction and valuable assistance tremendously boosted me during the
making of this project.

Secondly, all this wouldnt have been possible without my parents and friends who
gave their valuable time for guidance, boosted my confidence and helped me a lot
in completing this project without any drawbacks. Hence I am forever indebted
and grateful to them.

Thirdly, I am very much thankful to the staff and administration of TNNLS who
provided valuable sources of information in the form of library and database
connections.

The successful creation of this project is due to the background work and co-
operation of many persons. So I once again take this opportunity and privilege to
convey my deepest regards and thanks to all those who was involved directly or
indirectly in the making of this project.

Date:-9-4-16

SUPERVISORS CERTIFICATE
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This is to certify that the Research Project cum case analysis entitled: CHRISTIAN
LAW OF SUCCESSION AND THE EFFECT OF MARY ROYS CASE
submitted to the TAMIL NADU NATIONAL LAW SCHOOL, TIRUCHIRAPPALLI
in fulfilment of the requirements for internal component for B.Com.LL.B (HONS.),
Third Semester is an original and bona-fide research work carried out by AJAY
SINGH MAURYA under my supervision and guidance. No part of this study has been
submitted to any University for the award of any Degree or Diploma whatsoever.

PROF. DEEPIKA S. SHIV ( FACULTY)

Date: 9-4-16

Place: Tiruchirappalli
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OBJECTIVE

This research paper is an attempt to analyse the succession concept according to the
Indian Succesion Act,1956 and distribute the particular shares to a family selected as
per the rules of intestate succession laid down on the Indian Succession Act,1956.

RESEARCH METHODOLOGY & INTERPRETATION

This research is primarily descriptive and analytical in nature. Primary, Secondary and
Electronic resources have been avidly used to gather information about the topic.
Books and other references as guided by Faculty have been given prime importance
which was helpful in giving this project a firm structure. Websites, dictionaries and
articles have also been referred.
Footnotes have been provided wherever needed to acknowledge the source.

The researcher has primarily referred to secondary sources such as books and articles
while writing this research paper.

MODE OF CITATION

A uniform mode of citation has been used throughout this research paper which is
based loosely on the style prescribed in The Bluebook: A Uniform System of Citation.

SCOPE AND LIMITATIONS

The scope of this study is towards the Christian law principles under the Indian
Succession Act, 1925 and my research work is limited to books on family law, articles
and web. No other resource has been used in this research work.
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ISSUES

How the Christian succession principles are governed by the provisions in the
Indian Succession Act, 1925?
What is the effect of Mary Roys case as per the Christian law under Indian
Succession Act, 1925?

INTRODUCTION

Every law of succession defines the rules of distribution of property in case a person
dies without making a will. The Christian Law of Succession is governed by the
provisions in the Indian Succession Act, 1925. Sec. 30 of the Indian Succession Act,
1925 defines intestate succession thus: 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. Thus, any property which has not already been bequeathed or
allocated as per legal process, will, upon the death of the owner, insofar as he is an
Indian Christian, devolve as per the rules contained in of the Act. It would be
worthwhile to note at this point that intestacy is either total or partial. There is a total
intestacy where the deceased does not effectively dispose of any beneficial interest in
any of his property by will. There is a partial intestacy where the deceased effectively
disposes of some, but not all, of the beneficial interest in his property by will.1

1 http://www.lawteacher.net/free-law-essays/property-trusts/christian-law-
of-succession.php#ixzz40tgcIDDK
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1. How Christian law for succession is governed by Indian Successsion

Act,1956?

Laws of succession applicable to Christians and Jews; for the intestate the governing law is
the Indian Succession Act, 1925 specifically under section 31 to 49 of the Act.

INDIAN SUCCESION ACT, 1956

The Indian Succession Act was enacted in 1925. The object of the Act was to
consolidate the large number of laws which were in existence at that time. Laws
governing succession to Muslims and Hindus were excluded from the purview of the
Act. While consolidating the law in respect of succession, two schemes, one relating
to succession to property of persons like Indian Christians, Jews and persons married
under the Special Marriage Act, 1954 and the other relating to succession rights or
Parsis, were adopted. Testamentary succession(through will) amongst Hindus are also
governed by the Indian Succession Act.

This Act was amended by the Indian Succession (Amendment) Act, 2002. It was felt
that section 32 of the principal Act is discriminatory to widows and as such the
proviso to section 32 was omitted to remove discrimination in this regard. Section 213
was also amended by this amending Act to make Christians at par with other
communities.

The provisions of Indian Succession act, 1925 are not applicable to Muslims.
However, a Muslim cannot claim immunity if his marriage was held under the Special
Marriage Act, 1954. In such cases the provisions of the Indian Succession Act 1925,
shall be applicable even though the will was made before or after the marriage.

Application of this act,

Hindus, Muslims, Buddhist, Sikh, Jana- This part does not apply to the property of
any Hindu, Mohammedan, Buddhist, Sikh or Jaina. Muhammadans are governed by
Mohammedan Law of Inheritance and the Hindus Buddhists, Sikhs and Jainas by the
Hindu Succession Act, 1956.
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Parsis- The following provisions do not apply to Parsis.

Special Marriage Act- Notwithstanding anything contained in the Indian Succession

Act with respect to its application to members of certain communities, succession to
the property of any person whose marriage is solemnized under the Special Marriage
Act and to the property of the issue of such marriage shall be regulated by the
provisions of the Indian Succession Act.

However if two persons who are Hindus get married under the Special Marriage Act
the above provision does not apply and they are governed by the Hindu Succession
Act.

Distribution of property

The property of an intestate devolves upon the wife or husband, or lineal descendants
or upon those who are of the kindred of the deceased, in the order and according to
the rules given below.

However a widow is not entitled to the provision hereby made for her if, by a valid
contract made before her marriage, she has been excluded from her distributive share
of her husband's estate.

Where intestate has left widow and lineal descendants, or widow and kindred
only, or widow and no kindred.

Where the intestate has a widow-

1. 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 here in after contained;

2. if he 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 of kindred to him, in the order and according to the rules here in after
contained:
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3. if he has left none who are of kindred to him, the whole of his property shall
belong to his widow.

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 to
the Government.

Rights of widower, A husband surviving his wife has the same rights in respect in
respect of her property, if she dies intestate, as a widow has in respect of her husband's
property, if he dies intestate.

Rules of Distribution Children, Grandchildren are there.

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 are as follows.

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 his surviving child, if there is only one, or
shall be equally divided among all his surviving children.
Child or children- The word "child" does not include an illegitimate child, but must
be one born out of lawful wedlock. The words "any child" mean and include
"children" as well.

Where intestate has left no child, but grandchild or grandchildren, Where the
intestate has not left surviving him any child, but has left a grandchild or
grandchildren and no more remote descendant through a deceased grandchild, the
property shall belong to his surviving grandchild if there is only one, or shall be
equally divided among all his surviving grandchildren.

Where intestate has left only great-grandchildren or remoter lineal descendants.

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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.

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 descendants 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 children or more remote lineal descendants, as the case may be;
such surviving child or children or more remote lineal descendants always taking the
share which his or their parent or parents would have been entitled to respectively if
such parent or parents had survived the intestate

Rules of Distribution when there is 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) are as follows.

Where intestate's father living, If the intestate's father is living, he shall succeed to
the property.

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 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, shall be
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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.

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.

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.

Where intestate has left neither lineal descendant, nor father, nor mother, Where
the intestate has left neither lineal descendants, nor father, nor mother, the property
shall be divided equally between his brothers and sisters and the child or children of
such of them as may have died before him, 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.

Where intestate has left neither lineal descendant, nor parent, nor brother, nor
sister, Where the intestate has left neither lineal descendants, 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.

2. What is the effect of Mary Roys case as per the Christian law under Indian
Succession Act, 1925?
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More than a quarter of a century after Mary Roy began her legal battle for equality in
property rights for Syrian Christian women with their male siblings of the family, the
very property that is the basis of the case has finally come into her hands as the
principal sub-court here ordered execution of the final decree in her property suit on
Wednesday.

It has been 26 years since I had started my fight for justice. I am happy that our share
of the property has finally come into our hands, mine and my sisters, said Ms. Roy
from her residence on the Pallikkudom campus near here.

George Isaac, Ms. Roy's brother, against whom she had filed the property suit, would
now move to another house. In fact, he had already sold out his share of the property
in Kottayam town to a private chit company.

It was in 1986 that Ms. Roy had obtained a landmark judgment from the Supreme
Court entitling Syrian Christian women to an equal share in their father's property. Till
then, the Syrian Christian community followed the provisions of the Travancore
Succession Act, 1916 and Cochin Succession Act, 1921 even as members of the
community in other parts of the country were governed by the provisions of the Indian
Succession Act, 1925. As per the Travancore and the Cochin Acts, daughters were
eligible for one quarter of the sons' share or Rs.5,000, which ever was less, if the
father died intestate.2

Case deals with intestate succession among Travancore-Cochin Christians has been a
subject of public debate ever since the decision of the Supreme Court in Mary Roy
case. It appears that the decision has created considerable confusion not only among
the members of the Christian community in Kerala, but also among the lawyers. Till
the aforesaid decision of the Hon'ble Supreme Court, the Travancore Christians were
governed by the provisions of the Travancore Christian Succession Act, 1916 and the
Cochin Christians were governed by the provisions of the Cochin Christian
Succession Act, 1921. Christians in other parts of India were governed by the
provisions of the Indian Succession Act, 1925 with such exceptions as provided in the

2 http://www.thehindu.com/todays-paper/final-decree-in-mary-roy-case-
executed/article840061.ece
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Act. It was in this settled 'state of affairs' that the Supreme Court rendered the
decision in Mary Roy.

The question that arose, before the Hon'ble Supreme Court, for consideration was
whether the provisions of the Travancore Christian Succession Act were ultra vires the
Constitution. Another related question that was raised before the Court was as to the
impact of the Part B States (Laws) Act, 1951, on the Travancore Act. The Court
decided the case holding that the Part B States (Laws) Act excluded the operation of
the Travancore Act and thereby obviated the need for examining the first question of
the constitutionality of the Act. It took the view that by virtue of Section 6 of the Part
B States (Laws) Act, 1951 and the inclusion of the Indian Succession Act, 1925 in the
schedule to that Act, the Travancore Christian Succession Act stood repealed from the
appointed day under the Part B States (Laws) Act, i.e. April 1, 1951. Hence, it
reasoned, the law applicable to intestate succession among Christians of Travancore
area of the State of Kerala is the Indian Succession Act, 1925, from April 1, 1951.
Following this decision, the High Court of Kerala ruled that the Cochin Christian
Succession Act, 1921 also stood repealed by Part B States (Laws) Act, 1951 3. Though
these courts did not expressly give retrospective effect to the judgments, the mere
declaration that the Travancore and Cochin Acts stood repealed on April 1, 1951, gave
these judgments retrospective effect overturning the then existing law and practice
among the Travancore-Cochin Christians.

The Christians of Travancore and Cochin conducted their property transactions in the
belief that they were governed by the provisions of the Acts of 1916 and 1921,
respectively. The Travancore-Cochin High Court in 1951 4 and Madras High Court in
1978 affirmed and reaffirmed that the Travancore Act still remained in force, in spite
of the Part B States (Laws) Act, 1951. When the Hon'ble Supreme Court declared in
1986 that that was not the law, the property transactions of Christians in both
testamentary and intestate happen to be illegal.3

These decisions have had another impact. Under the Travancore-Cochin Acts
probating of wills was not mandatorily applicable to the Travancore-Cochin
Christians. But under Section 213 of the Indian Succession Act it is mandatory for the

3 http://www.ebc-india.com/lawyer/articles/94v4a2.htm
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Christians to get their wills probated. Therefore, as a consequence of the decision

family settlement deeds based on wills that were not probated have suddenly become
invalid in view of the application of Section 213 with effect from April 1, 1951. In the
case of intestate succession, partitions or family settlements made in accordance with
the provisions of the Travancore Act also became defective. Such documents, now,
cannot be used as securities for financial transactions, and further, daughters (sisters)
who were excluded from the share (under the provisions of the Travancore or Cochin
Acts) can now reopen the matter both for genuine and mala fide reasons. In short,
many a title deed in the hands of Christians remain defective and this would adversely
affect the stability and progress of the community as all the settled property relations
may have to be unsettled and resettled.4

Section 28 of the Travancore Christian Succession Act, was the most discriminatory
provision under which son/sons shall be entitled to have the whole of the intestates
property divided equally among themselves, subject to the claims of the daughter for
streedhanam. The section provides: Daughters streedhanam and its value, the
Streedhanam due to a daughter shall be fixed at one fourth the value of the share of a
son, or Rs.5000/- whichever is less. This section reflects the Patriarchal tradition
where only male members are entitled to inherit the fathers property. The provision
that a woman is entitled to the value of the share of the son sheds light on the low
status given to the women in the Christian community. Even the Christian committee
in its draft bill proposed 1/3rd share of a son to the daughter which was opposed by
the patriarchal Christian community. The Kerala High Court in Philip v. Ouseph held
that Under the Travancore Christian Succession Act, admittedly if a daughter is given
stridhanam she is not entitled to any further right in the property left by her father or
mother.

The Court held that after the coming into force of Part B States (Laws) Act 1951, the
Travancore Christian Succession Act stood repealed and the Kerala Christians are
thereafter governed by Chapter II, Part V of the Indian Succession Act 1925. Under
the Indian Succession Act 1925, the children inherit equally. That means female child
is entitled to a share equal to that of her brother if the father dies intestate. So the

4Ibid.
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decree holder gets only a less right than what is actually due to her. The decree was
passed at a time when she was having a pre-existing right over the property the decree
would not therefore a nullity. The daughter could have amended her plea for an equal
share to that of the brother. The Court could grant only if she had claimed it. This
throws light on the fact that women are not aware of their rights even after Supreme
Court verdict in Mary Roy case.

hence, the law that is in force is the Indian Succession Act 1925. The High Court
further held that there was no law which disqualified a daughter to inherit her parents
property on the ground that she was paid streedhanam.

CONCLUSION
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The general law relating to the inheritance and succession can easily be referred to The Indian
Succession Act, 1925. Under this Act every Indian is entitled to equal shares on inheriting the
property on the death of a person. The exceptions are Hindus, Sikhs, Jains, Buddhists and
Muslims as they are governed under separate laws of succession. As for the persons of
different faiths than Hinduism and Mohammedan, the Indian Succession Act, 1925 applies.

Thus, any property which has not already been bequeathed or allocated as per legal
process, will, upon the death of the owner, insofar as he is an Indian Christian,
devolve as per the rules contained in of the Act. It would be worthwhile to note at this
point that intestacy is either total or partial. There is a total intestacy where the
deceased does not effectively dispose of any beneficial interest in any of his property
by will. There is a partial intestacy where the deceased effectively disposes of some,
but not all, of the beneficial interest in his property by will.5

5 http://www.lawteacher.net/free-law-essays/property-trusts/christian-law-
of-succession.php#ixzz40tgcIDDK
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BIBLIOGRAPHY

Act referred to;

Indian Succession Act, 1925

List of books referred to;

Diwas paras.; Textbook on family law; Universal Law Publishing Co., Delhi.

Dr. Pradhan Saxena, family Law Lectures family law 2, edition 2011,
LexisNexis Butterworths Wadhwa Nagpur.

List of websites referred to;

https://lawlib.wlu.edu

http://indiankanoon.org

www.manupatra.in
http://www.helplinelaw.com
http://www.lawteacher.net

Thankyou
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