Framjee A Ráná.

Parsi law, containing the law applicable to Parsis as regards succession and inheritance, marriage and divorce, &c online

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LIBRARY

UNIVERSJTY Of
CAIIFOBNIA





PA RSI LAW.



PARSI LAW

CONTAINING

THE LAW APPLICABLE TO PARSIS AS REGARDS

SUCCESSION AND INHERITANCE, MARRIAGE

AND DIVORCE, &c.

BY

FRAMJEE A. rAna, B.A., LL.B.,

Vakil, High Court.

JOINT AUTHOR OF "AN EPITOME OF HINDU LAW ", "AN EPITOME OF

MAHOMEDAN LAW " AND ** AN EPITOME OF THE

PRINCIPLES OF EQUITY."



(All Rights of Publication and Translation Reserved.)
Frice R/ixpees 3,



Printed at the "Examiner Press,'*

1902.



I4R325



TO
THE REVERED MEMORY

OF

SIR JAMSETJEE JUIBHOY



THE FIRST PARSI BARONET,

I»A.TR01Sr OF THE FARSI LjA.^^ ASSOCIA-TIOISr,



^m little i00fe



IS EESPECTFULLY INSCRIBED,
WITH FEELINGS OF ESTEEM AND VENERATION

FOR

HIS MUNIFICENT AND WORLD-WIDE CHARITIES,
HIS GREAT ZEAL IN THE CAUSE OF EDUCATION,

AND

HIS UNCEASING EFFORTS TO PROMOTE THE WELFARE AND AMELIORATE THE CONDITION OF THE
VARIOUS INDIAN COMMUNITIES IN GENERAL, AND HIS OWN CO-RELIGIONISTS IN PARTICULAR-



nGS



lOAN STACK



PREFACE.

Encouraged by the success of the works on Hhidu
Law, Mahomedan Law and Principles of Equity which
have been successively published by the author jointly
with Mr. C. K. Mulji during the last seven years, the
author has attempted in the present work to place before
the public a manual of the principles of Parsi Law, as
embodied in the Acts relating to testamentary and intestate
Succession, Marriage and Divorce which govern the
personal relations of the Community at the present day
and which have been developed and enunciated by
authority from the Bench in the various decisions of
the High Court.

This is the first attempt of its kind as there is no
other book which comprises the whole field of Parsi Law
as provided for by Statutes and formulated by High iX
Court decisions.

All available sources of information have been care-
fully consulted and no pains have been spared by the
author to make the book accurate and trustworthy.

It is hoped that the work will prove useful and
serviceable both to practitioners and students as also
to the Parsi Community in general.



July 1902.



EXPLANATION OF ABBREVIATIONS.



B. H. C. Bombay High Court Reports.

Bom. Indian Law Reports, Bombay Series.

Bom. L. R. Bombay Law Reporter.

Cal. Indian Law Reports, Calcutta Series.

Henderson. Henderson's Testamentary Succession in India,
2nd edition.

L S. Act. Indian Succession Act X of 1865.

M. I. A. Moore's Indian Appeals.

Mad. Indian Law Reports, Madras Series.

P. J. Printed Judgments of the Bombay High Court.

Stokes. Indian Succession Act by Whitley Stokes, 1865.



CONTENTS.

The references tlirmigliout are to pages.



INHERITANCE AND SUCCESSION.

PAGE.

Introductory ... ... ... ... ..• ... 1

Parsi Intestate Succession Act XXI of 1865 (with

commentaries)... ... ••• ... ... ... 5

Summary of Indian Sviccession Act X of 1865 ... 14



P^KT II.

MARRIAGE AND DIVORCE.

Introductory 43

Parsi Marriage and Divorce Act XV of 1865 (with

commentaries)... ... ... ... ... ... 45

Rules and Orders under Parsi Marriage and Divorce

Act 68

Law as to bridal presents amongst Parsis 70



APPENDICES.
Appendix A-

Parsi Chattels Real Act IX of 1837 I.

Appendix B.

Indian Succession Act X of 1865 II.

Appendix C-

Rules and Regulations for Parsi Chief Matrimonial

Court in Bombay Presidency CI,

Tables of Fees



TABLE OF CASES.

Ardaseer Cursetji v. Pirozbai, 44,49561;63,
Ardeseer v. Avabai, 62,64.
Avabai v. Jaraasji, 51,58.
Avery v. Bowden, 60.

Bai Shirinbai v. Kharshedji, 49,62.
Buijoiji V. Pestonji, 70.
Burnett v. Manu, 7.
Byramji v. Jarasetji, 70.

Cursetji v. Rustomji, 18.

De Souza v. Secretary of State, 35.
Dhanjibhai v, Hirabai, 62,
Dhanjibhai v. Navazbai, 10,17.
Dbanjishaw v, Sorabji, 40.
Dorabji v. Jerbai, 49,55,58,64,

Erasha v. Jerbai, 5^9,11.

Fardunji v. Navazbai, 38.
Fardunji N. Banaji v. Mithibai, 28.

Graham v, Londonderry, 17.



II

Harris v. Harries, 17.
Hill V. Administrator General, 20.
Hirabai v. Dhunjibhoy, 59,61.
Hirjibhai v. Burjorji, 9,11.
Homabaee v. Punjeabhaee, 6.
Horniusji v. Kustomji, 29.
Hulme V. Tenant, 15.

Jehangir v. Pirozbai 2,3,8.

Kawasji v. Sirinbai, 61^62.

Limji V. Bapuji, 29.

Mancherji v. Motibai, 60.

Mancherji Davar v. Mithibai, 8.

Manchershaw v. Kamariinisa Begam, 2,

Merbai v, Perozbai, 15.

Merwanji v. Avabai, 50,61.

Merwanji v. Rustomji, 70.

Miller v. Administrator General^ 20.

Modee Kaikhoshru v. Cooverbai, 14.

Motabhai v. Dosibai, 6.

Motibai v. Motibai,. 60.

Muncherji v. Nusserwanji, 70.



Naoroji v. Rogers, 2,50.
^atall V. Natall, 17.
Navroji v. Pirozbai, 3,23,



Ill



Peshotam Hormusji Dastoor v. Meherbai, 43,48,
49,50,63.



Rogers v. Naoroji, 2.

S. V. B., 56.

Sarkies v. Prosonomoyee Dossee. IG.

Sorabji v, Buchoobai, 50,57.



Taylor v. Meads, 15.
Tullet V. Armstrong, 15.

Wallis V, Hodgson, 7.



PARSI LAW.



PART I.

INHERITANCE AND SUCCESSION.

INTKODUCTORY.

From the clear and able report of the Parsi Law
Commission (13th October 1862) it appears that before
the year 1865 the law applicable to the Parsis in the
Presidency Towns as regards their social relations widely
differed from that which prevailed in the Mofussil ; for,
while they were governed in the Presidency Towns, as
regards division of property, according to the English
Statute of Distribution, in the Mofussil they were
governed according to Regulation IV of 1827, and
undefined and precarious usage constituted the only
guide there.

In the year 1835 a Parsi died intestate and his eldest
son preferred a claim in the Supreme Court of Bombay
to be entitled to the whole immovable property of
his deceased father by right of primogeniture to the
exclusion of the next-of-kin. This circumstance caused
great anxiety among the Parsis residing in Bombay.
Becoming apprehensive that the English law of real pro-
perty was for the first time about to be applied or might
be applied in that case, they petitioned to the Legislature
on the 20th November 1835 to be protected against such
threatened application of the English law. Their appeal
was not unheeded, for on the 15th May 1837 the Parsi
Chattels Real Act (IX of 1837) was passed to emanci-
pate the Parsis of the Presidency Towns from th^
English law of succession to real property.



This Act (repealed by Act VIII of 1868) applied to all tlie
Presidency Towns and not to the Town of Bombay alone.
{Rogers v. Naoroji^ 4 B. H. C. at p. 114.)

This Act (IX of 1837) provided " that all immovable property situate
within the jurisdiction of any of the Courts established by His Majesty's
Charter shall, as far as regards the transmission of such property on the
death and intestacy of any Farsi having a beneficial interest in the same,
or by the last will of any such Parsi, be taken to be and to have been of
the nature of chattels real and not of freehold. "

The principle which the Mofassil Courts had adopted was
that there was no lex loci in British India, and their practice
had been to ascertain, in the best manner they could, what the
law of the country of the parties before them was ; and the
Courts, there, acting under Regulation IV of 1827, sections 26
and 27, took evidence of, and enforced what were proved to be
the usages of the Parsis in the locality, {Jehangir v, Firozbat,
11 Bom. at p. 4J

Section 26 of Regulation IV of 1827 provided " that the law to be
observed in the trial of suits shall be Acts of Parliament and Regulations
of Government applicable to the case ; in the absence of such Acts and
Regulations, the usage of the country in which the suit arose; if none
shall appear, the law of the defendant; and in the absence of specific
law and usage, equity and good conscience alone."

In Manchershaw v, Kamarunisa Begam, 5 B. H. C. 109, Couch, C. J.,
held that according to section 26 of Regulation IV of 1827, the law of
the defendant who was a Parsi governed the case. That there was no
law generally applicable to Parsis in India^ but the law applicable to
them within the jurisdiction of the High Courts on its Original Side,
was that which was applicable to British-born subjects, and in the absence
of any specific law for the Ptirsis in the Mofussil, the rule of justice,
equity, and good conscience should be observed ; and in such cases the
practice of the Courts of Equity iu England with certain necessary
modifications should be followed.

The judgment in Naoroji r. Rogers^ 4 B. H. C. 1., has set
at rest any doubts, which ever existed as to tlie law by which
the Parsis are governed. Since the decision in that case it cannot
be disputed that until the legislation of 1865 (Acts X, XV,
and XXI of 1865), '' the law uniformly appl ied to Parsis and



their property in the Island of Bombay by the Supreme Court
and, since it was closed, by the High Court at its Original
Jurisdiction Side has been the English law " subject to certain
specified exceptions. {Navroji v. Pirozbai, 23 Bom. at pp. 98, 87.)

Before the passing of Act XXI of 1865 the Parsia in the town and
island of Bombay were, as to succession, governed by the English law
as modified by Act IX of 1837 ; and in the raofussil, the Courts acting
under Regulation IV of 1827, sections 26 and 27, took evidence of and
enforced what were proved to be the usages of the Parsis in the locality,
{Jehangir v. Pirozbai, 11 Bom. at p. 4.)

Though the Parsis in the Presidency Towns were
somewhat benefited by the passing of Act IX of 1837, the
Mofussil Parsis derived no benefit from it. Even the
Parsis in the Presidency Towns got only partial relief,
for, though it relieved them from the operation of the
English law of Primogeniture as regards immovable
property, yet as regards all sorts of property in cases of
intestacy they were left under the subjection of the
English Statute of Distributions, which, being wholly
unsuited to their requirements and quite at variance
with their usages and customs^ caused real and pressing
inconvenience to the Parsis of the Presidency Towns.

In all cases of intestacy the Parsis of the Presidency Towns
as regards every description of propertr/ yv ere subjected to the
English Statute of distribution by which a third went to the
widow and the residue was distributed equally amoDgst the
children and their representatives.

Having no recognized code among themselves, and
neither ancient books of law, nor any authoritative account
even of their unwritten law, no one of the Parsis knew
the extent of his family rights, or the obligation of his
family duties, and a better and more satisfactory and
permanent settlement of their inheritance and succession
laws being entirely necessary, the Parsis held a great



meeting at Bombay, on the 20tli August 1855, to con-
sider and adopt measures for procuring the enactment of
laws adapted to them. The Managing Committee of the
Parsi Law Association, appointed for that purpose, drew
up a draft code and presented it to the Legislative Council
on the 31st March i860. The Select Committee of
the Legislative Council then submitted their report and
a Commission was thereupon appointed to enquire into
the usages recognized as laws by the Parsi Community of
India, and into the necessity of special legislation in con-
nection with them (26th December 1861). The Parsi Law
Commissionthen made a report on the 1 3th October 1862,
and at last a long standing grievance was removed by the
passing of the Parsi Succession Act (XXI of 3865),
which came into force on the 10th April 1865.

This Act, "which contains special provisions as to succession
amongst Parsis, in cases of intestacy, applies to Parsis in the
"whole of British India, except the scheduled districts: The
Indian Succession Act ( X of 1865 ) applies to Parsis in cases
of succession under wills.



THE PARSl INTESTATE SUCCESSION

ACT.



ACT NO. XXT OF I860.

Passed on the 10th April 1865.

An Act to define and amend the Law relating to Intestate
Succession among the Par sis.

By section 3 of the Laws Local Extent Act (XV of 1874) this Act has
been declared to be in force in the whole of British India, except as
regards the Scheduled Districts.

It has been declared, under the Scheduled Districts Act, 1874, to be
in force in the following Scheduled Districts :—

Sindh ; West Jalpaiguri ; The Districts of JIamribagh, Lohdrdaga,
and Mdnbhum^ and Pargana DJidlbhum, and the Kolhdn in the District of
Singhhum ' The J hdnsi Division ; Kumaon a7id Garhicdl ; The Scheduled
portion of the Mirzdpur district ; Jaunsar Bdwar ; The Districts of Hazara
Peshawar Kohdt^ Bannu, Dera Ismail Khan, and Dera Ghdzi Khan ;
Ajmer and Menvdra ; The District of Silhat.

It has been extended, under the same Act, to the Scheduled District
of the North Western Provinces Tardi.

It has been declared, under same Act, not to be in force in the
Scheduled District of Lahaul

Whereas it is expedient to define and amend the law
relating to intestate succession among
Preamble. ^^^^ p^^.^^^ . j^ j^ enacted as follows :—

A man is considered to die intestate in respect of all property of
Xfhich he has not made a testamentary disposition which is capable of
taking effect. (S. 25. I. S. Act.)

A Porsi by his will expressly directed that neither his daughter nor
his widow should take any share of his property, the whole of which he
bequeathed to his brother, who, however, predeceased him. The bequest
thus in his brother's favour lapsed and there was an intestacy and the
daughter and his widow took the property. Use of mere negative words
unaccompanied by any effective disposition of his property could not
exclude them. (£ms Aa v. Jer&m, 4 Bom. 537.)

1. Where a Parsi dies leaving a widow and children, the
Division of property property of which he shall have died
among widow and cMidreh intestate shali be divided among the
of intestate. widow and children, so that the share of

each son shall be double the share of the widow, and that her
share shall be double the share of each daughter.



6

In accordance with this section, the widow gets twice as much as
each daughter, and each son gets twice as much as the widow.

The children may be either by the widow or a predeceased wife.
(Stokes. 203.)

The word property occurring in this Act includes both movables and
immovables.

Previous to this Act, a Parei widow had only a right to be provid-
ed by her husband's heir during her life time with a suitable abode and
maintenance. She took no proprietary right in the house assigned to her,
but the estate therein, as in the other property of her husband, vested
in his heir. Such an estate would not be in the nature of a reversion, but
would be an absolute estate burdened with a liability, and the death of
the widow would make no change in the nature of the estate, but merely
extinguish the liability. {Motahhai v. Dosibai, P. J. for 1877. at p. 106.)

The words " Son " and " Daughter " here do not include a step-
son or step-daughter, nor an adopted son or adopted daughter, but they
do include a posthumous son and posthumous daughter as is explained
below.

Step^child,

One's step-child is only a child of one's husband or wife by a former
marriage and consequently it does not inherit anything in the estate of
the step-parent.

Adoption.

There is nothing like strict adoption amongst Parsis. A Pars!
can adopt a son to perform his funeral ceremonies, but such adopted
person will not inherit any portion of tlie deceased's estate, except under
his will. Such adopted person is called •' Paluk" or "Dharm-putr." It
may be pointed out here that under the General Clauses Act X of 1897,
the word "son " occurring in all Acts of the Governor General in Council
made after the commencement of that Act and m all Acts of the Governor
General in Council made after the 3rd day of January 1868, includes an
adopted son, in the case of any one whose personal law permits adoption.
As however this definition does not apply to the Parsi Succession Act
which was passed in 1866, it is not neceesary to discuss whether the
personal law of Parsis permits adoption or not.

An adoption made by a Parsi immediately before his death would
render extremely improbable the execution of a will by him a short time
previous thereto, and therefore calls for a very clear proof to establish its
existence. Although in the cases of adoption by '* Dhurm-putr " (a
partial adoption) it is not indispensably necessary that a declaration
should be made on the third day after the decease, yet it is usual to make
such a declaration and to take a writing from the " Dharm-putr. '' In
the absence of any such writing, and upon the whole evidence the adoption
(in the case) was pronounced to be as a " Paluk-putr " and not merely
as a " Dhurm-putr." A*'Paluk" is appointed by the adoptive father iu
his life-time ; while a *' Dhurm-putr" is appointed after iiis death, for
the performing of his funeral ceremonies. {Homabaee v. Punjeabhaee, I
utherland's P. C. Judgments, page 28.)




i



Posthumous children.



As regards posthumous children, they would inherit though no express
mention is made of them. Before the Parsi Intestate Succession Act
was passed, a Parsi posthumous child would have inherited to his father
dying intestate, under the English Law. By the Common Law of Eng-
land a child en ventre (i. e., in the womb) is looked upon as a person
in rerum naiura, so that such child is to all intents and purposes a child
as much as if born in the father's life-time. Such a child succeeds
under the English Statutes or Distribution to an intestate, although
those statutes contain no provision similar to what is found in section
23 of the Indian Succession Act X of 1865 as to the position of a child
en ventre. (Wallis V. Hodgson, 2 Atk. p. 116 ; Burnett V. Manu, 1 Ves.
156.) From the fact that part third of the Indian Succession Act (which
includes section 23) is excluded from application to Parsis, it might,
at first sight, appear that a Parsi posthumous child would not inherit
to a Parsi intestate. But section 23 is a mere declaratory section as
to the position a child en ventre occupies and the omission of the part
third containing it, affords no ground for the argument that it was
intended that a Parsi child en ventre should occupy a different position
after the Parsi Intestate Succession Act than it did defore in cases of
succession. Section 86 of the Indian Succession Act, which appHes to
Parsis enacts that in a will, all words expressive of relationship apply to
a child in the womb who is afterwards born alive. This also points to
the conclusion that, the Legislature could not have intended a result in
the case of an intestary different from that in the case of a will.

As the point was somewhat doubtful the author went to the cost of procuring
the opinion of an eminent counsel, viz., IMr. Inverarity on it.

2. Where a female Parsi dies leaving a widower and
Division of property children the property of which she shall

among w i d o w e r and have died intestate shall be divided among
children of intestate. ^^^ widower and such children, so that his

share shall be double the share of each of the children.

The children may be by the widower or the female's predeceased
husband. Sons and daughters share equally. (Stokes. 204.)

3. Where a Parsi dies leaving children, but no widow, the

property of which he shall have died
ai^ngst''' chiidr^n^^'of intestate shall be divided amongst the
male mtestate leaving no children, SO that the share of each son
^'^^^'^' shall be four times the share of each

daughter.

4. Where a female Parsi dies leaving children, but no
Division amongst child- widower, the property of which she shall

ren of female intestate havc died intestate shall be divided
leaving no widower. amongst the children in equal shares.

The son eets four times as much as a daughter out of the father's
property, while the sou and the daughter share equally their mother's
property.



8

5. If any child of a Parsi iuteslate shall have died in his or
..r . . - , , her life time, the widow or widower and
cKUdTThare ^amont'^wi. issue of sucb child shall take the share
dow or widower aud issue which such child would have taken if
of «uch child. jjyj^g ^^ ^j^g intestate's death iu such

manner as if such deceased child had died immediately after the
intestate's death.

By " widower, " in tliis section, is meant a widower, relatively to the
deceased wife only, and without consideration of the fact or possibility of
the widower re-mnrrying. If the framera of the Act had wished to
provide against re-marriage incases under section 5, they might have used
adequate language a8 in the 2nd Schedule, articles 10 and 14 which
refer to section 7. The omission to employ similar express words for cases
falling under section Sis eigmQ-CSLut. {Jeha?igir v.Firozbai, 11 Bom. at p. 5.)

D, a Parsi, died intestate on the 19th September 1885, leaving a
widow (the defendant), two daughters, and iieirs of a predeceased daugh-
ter J, surviving him. J had been the wife of the plaintiff, nnd had
died 34 years before the date of his suit, leaving as her lieirs, her husband
(the plaintiff), and one daughter, who was still living. After J's death
the plaintiff married J«gain, and his second wife was liviug at the date
of this suit. Letters of administration to D's estate were granted to his
widow, the defendant. The plaintiff claimed a share in D's estate,
contending that he was the widower of J, one of the daughters of the
intestate and entitled as such under section 5 of the Parsi Intestate
Succession Act XXI of 18G5. It was held that he was the widower of J
within the meaning of the said section, and as such was entitled to a
share in D's estate. (Ibid. 1.)

It is not necessary, in order for the widow or widower to take, and for
the issue to fake, -that there should be in existence, at the death of the
intestate, both widow or vndower and issue. It is not a condition precedent
to the application of this section that the predeceased son of an intestate
Parsi shall have left both a widow and issue. Where a Parsi died intestate
leaving him surviving a widow, sons, daughters, children of a predeceased
son and the widow of another predeceased son who had died without
issue, and a posthumous daughter was afterwards born to the intestate, it
was held that the last mentioned widow was entitled to one moiety of
the share in the intestate's estate, which her husband would have taken
had he survived the intestate, and that the other moiety of such share
devolved on the surviving issue of the intestate, including the posthumous
dausrhter and the children of his other predeceased son. (Mancherji
Davar v, Mitkibai, 1 Bom. at pp. 506, 511.)

6. Where a Parsi dies leaving a widow or widower, but
... without leaving any lineal descendants,

wheiTintState leaves wi- his or her father and mother, if both are
dow or widower but no living, or One of them if the other is dead,
lineal descendants. ^^^^^ take One moiety of the property, as

to which he or she shall have died intestate, and the widow or
widower shall take the other moiety.



9

Where both the father and the mother of the Intestate
survive him or her, the father's share shall be double the share
of the mother.

Where neither the father nor the mother of the intestate
survives him or her, the intestate's relatives on the father's
side, in the order specified in the first schedule hereto annexed
shall take the moiety which the father and the mother would
have taken if they had survived the intestate.

The next of kin standing first in the same schedule shall
be preferred to those standing second, the second to the third,
and so on in succession, provided that the property shall be so
distributed as that each male shall take double the share of
each female, standing in the same degree of propinquity.

Jf there be no relatives on the father's side, the intestate's
widow or widower shall take the whole.

The first six sections of the Act are intended to embrace all cases of
a Parsi leavjnoj lineal descendants or a widow or widower. Section 7
applies to cases where the intestate leaves neither widow or widower, nor
lineal descendants.

7. Where a Parsi dies leaving neither lineal descendants

Division of property "^r a widow or widower, his or her

when intestate leaves nei- next-oi-Kin, in the Order set forth m the

ther widow nor widower gecond schedule hereto annexed, shall be

nor Imeal aoscendants. ,• i i ^ , i i i ^ ,-i

entitled to succeed to the whole ot the
property as to which he or she shall have died intestate.

The next of km standing first in the same schedule shall


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