Gilbert S. (Gilbert Stuart) Henderson.

Testamentary succession and administration of intestate estates in India, being a commentary on the Indian succession act (x of 1865), the Hindu wills act (XII of 1870), the Probate and administation online

. (page 83 of 113)
Font size
QR-code for this ebook

ing an estate.

Preonath Karar v. Surja Coomar Goswami, I. L. R., 19 Cal., 26. — Certain persons who
were heirs of a deceased lady and had also taken out administration limited to certain
securities sold them but in such sale they were not described as administrators.

H eld that this did not affect the sale but that they were bound to administer the sale*
proceeds as part of assets of the estate. (See cases referred to herein.)

Executors ought not, without great reason, to permit money to remain upon personal secu-
rity longer than is absolutely necessary, and they will be charged with a loss from their neglect to
call in money lent by their testator on bond — Powell v. Evans, 5 Ves., 839. See Lowson v. Cofe-
Zawrf, 2Bro. C. C, 166.

Carrying on business. — Even if the testator by his will direct that his executor should carry on
his business, the executor will be personally liable for the debts incurred by him in carrying oii the
trade pursuant to the will, but if specific assets were directed to be employed in the business,
he will be allowed to resort to such specific assets for Iris indemnity — In re Johnson, L. R., 15
Ch. D., 548 : " It is a rale without exception," said Lord LajvGdai.e, M. R., in Kirman v.
Booth ( 1 1 Beav., 280), " that, to authorize executors to carry on a trade, or to permit it to be ctvr-
ried on, with the property of a testator held by them on trust, there ought to be most distinct
and positive authority and direction given by the will itself for that purpose."

If an executor in pursuance of the directions contained in the testator's will carries on the
testator's business and in so doing contracts debts the fact that he has carried on the business
in his own name and that the testator's assets employed in it are ostensibly the executor's own
property will not entitle a judgment-creditor to take in execution the testator's assets — In re
Morgan, L. R., 18 Cb. D., 93.

Although an executor generally cannot, unless authorized by the will, carry on the trade of
his testator, he may do so for the purpose of winding it up — CoUin^on v. Listed, 20 Beav., 356.
In some cases also he is bound to complete contracts entered into by his testator — Ibid.

An esecutor carrying on a testator's business with the assent either express or implied of
the testator's creditors is entitled (in priority to the testator's creditors) to be indemnified out
of the estate against the liabilities properly incurred by him in carrying on the business {Dowse
V. Gorton, 1891, A. C, 190), and this principle is applicable where a receiver and manager has been
appointed in an administration action to carry on the business in succession to the executor and
whether the will does or dees not contain a power to carry on the business — In re BrooJce ( 18D4],
2 Ch., 600.

Mere laches, in abstaining from calling upon the executors to i ealize for the purpose of paying
his debt will not deprive a creditor of his right to sue the executors foi devastavit unless there haa
been such a course of conduct on his part that the executors have been thereby misled into
parting with the assets available to answer his claim — In re Birch, 27 Ch. D., 622; see Williams
on Executors, lOth Edn., Vol. II, p. 1434 et seq.

Executors may appoint one of their body to be their agent, and where they do so, they are to
be treated exactly in the same way as if they had appointed a stranger as agent {Toplis v. HarreU,
19 Beav., 423 ; Honie v. Pringle, 8 CI. and Fin., 264) ; and are liable for his defaults. But where

S. 331.] EXEMPTIONS. .373

executors employ an agent to collect money under ciicummstances which make the employment
proper, and the money collected is lost by the agent's insolvency, the burden of proof is not on
the executor to show that the loss was not attributable to his own default, but on the persona
seeking to charge him to prove that it was {In re Brier, L. R., 20 Ch. D., 2.38). Executors will
not be responsible, where, acting from necessity or according to the regular course of business
they employ an agent who misapplies money entrusted to him belonging to the estate {Edmunds
V. Peak, 7 Beav., 239 ; Bacon v. Bacon, 5 Ves., .334). In the case of Baccn v. Bacon, an executor,
who was resident in London, remitted money of the testator to an attoiney in the country to pay
debts due from the testator and the money was misapplied, and he was held not to be liable.
But executors will be liable if they unnecessarily allow a person to receive money and that person
misapplies it — Ghost v. Waller, 9 Beav., 447 ; see Bostock v. Flower, L. R., 1 Eq., 2fi ; Law of
Wills in India, p. 391.

As to debts contracted by an executor for the purposes of the estate after testator's death —
See Farhall v. Farhall, L. R., 7 Ch., 123 ; Re Johnson, 15 Ch. D., 548 ; Re Morgan, 18 Ch. D., 93.

Where assets come into the hand of an executor and are afterwards lost to the estate, he
is in the position of a gratuitous bailee and cannot be charged without some wilful default —
Job V. Job., 6 C. D., 662.

If assets are lost through casualty, e.g., the fire, the executor cannot be charged — Jones
V. Lewis, 2 Ves. Sen., 240.

An executor is not bound to insure or continue an insurance effected by the testator, and
18 not liable for loss caused by fire — Fry v. Fry, 27 Beav., 146 ; Re Fowler, \Q C. D., 723.

An executor lending money on personal security is guilty of a breach of trust and person-
ally liable for any loss— i?e Grindley, 1898, 2 Ch., 593 ; Re Laing, 1899, 1 Ch., 132.

An executor can deposit money for temporary purposes in a bank of good credit but it
should be to a separate account and he is not responsible in the event of failure of the Bank,
unless the loss happens through his own wilful default — Chamber v. Chambers, 7 Ves., 198.

329. [Repealed by Act VII of 1870.]

330. [Repealed by Act XXIV of 1867.]


331. The provisions of this Act shall not apply to intestate or testamen-
Suceession to pro- tary succession to the property of any Hindu. Muham-

Slmmada?s°'i"^'B5d: madan or Buddhist ; nor shall they apply to any will

dhists, and certain made' or any intestacy occurring before the first day

marriages, not affect- of January, 1866. The fourth section shall not apply

ed by this Act. ^^ ^^^ marriage contracted before the same day.

As to Hindus and Buddhists, see now the Hindu Wills Act (XXI of 1870), s. 2< Maho-
madans have a law of their own as to wills.

By Act VII of 1901 called the Native Christian Administration of Estates Act, 1901, it is
provided that ss. 190 and 239 should not apply to any part of the property of a Native
Christian and nothing contained in s. 1, sub-section 4, of Act VII of 1889, was to prevent the
granting of a certificate to any person claiming to be entitled to effects of a Native Christian,
and the words " Native Christian " were added to ss. 16, 17, 18, 37 and 64, Act II of 1874.

Mr. Stokes in his Commentary on the Succession Act has pointed out that in s. 331 the term
" Hindu," used, as it is, in conjunction with the terms Mahomedan and Buddhist, is used as a
th(;ological term, and as denoting a person professing an}' form of the Brahminical religion or
religion of the Puranas (see Abraham v. Abraham, 9 M. I. A., p. 239) ; and would, therefore, as
the Courts have since held, include Jains and Sikhs {Bachehi v. Mukhan Lall, I. L. R.. 5 All..
55 ; Chotay Lall v. Chunnoo Lall, L. R., 6 L A., 15 : (s. c.) I. L. R., 4 C.l., 744 : (s. c.) 3 C. L.
R., 465 ; Bagvandns Tejmul v. Rajmal, 10 Bom. H. C. R., 241 ; Lallah Mahabeer Perahad v .
Koondnr Koomvar, 2 Ind. Jur., 312 ; Doed. Kissen Chnnder Shah v. Bindam Beebee, 2 Mori.
Dig., 22.) As to Jains, it has been, in fact, held that the ordinary Hindu Law, in the absence
of any special custom varying the .same, is applicable to them {Chotay Lall v. Chunnoo Lall,
L. R., 6 I. A., 15 : L L. R., 4 Cal.. 744 : 3 C. L. R., 465). Sikhs are in the main governed by the
Mitakshara school of Hindu Law (see Doe d. Kissen Chunder Shah v. Bindam Beebee, 2 Mori.
Dig., 22). Cutch Memons are not included in the term 'Hindu.'

Mr. Stokes on the authority of Mr. H. H. Wilson (Works, pp. 347 — 359) has expressed his
opinion that the term ' Hindu ' would not include the Baba Lalis " who adore but one God dlspens-

874 SUCCESSION ACT. [part xli.

ing with all forms of worship and difecting their devotions by rules and ubjictb derived from
a medley of Ved.xnta and .Su(i tenets" ; nor Pran Nathus or Dliamis in Bundelkhand who consent
to the real identity of the Hindu and Mahouiedan creeds ; nor the Sadhus, a seet of Hindu Sec-
tarians who are found chiefly in the upper parts of the Doab fiom Farukabad to beyond Delhi ;
nor perhaps the »Satnamis who profess to wors^hip one (ilod, though they rtcognize the whole Hindu.
Pantheon ; nor theCiraNarayanis who simply professthe worship of one Gud and admit proselytes
alike from Hindus and Mahomeddns ; nor Cunyavada.s whose doctrines are athestieal;
(Stokes' Indian Succession Act, p. 200) ; nor dues it include Santhalis, Kols, Sub-Himalayan and
other Bhutan tribes, Nagas of Assam, the Kus, Gonds. Bhils, Rajmahal is Khonds of Orissa,
Tod as of the Nilgiiis, Shonars, and other demonolators of Southein India (Ihi'l, p. 201).

Under the term " Buddhist " apparently Tibetans and I.epcha« in British India are included
— See Law of Wills in India, pp. 10, 1 1.

Native Christians. — A Native Christian is not a ' Hindu ' within the meaning of this section —
Joseph Vnthiar, 7 Mad. H. C. R., 121— See Abraham v. Abraham, 9 M. I. A., 239. So that if a
Hindu becomes a convert to Christianity, and dies intestate succession to his estate is governed
by the Indian Succession Act — Administrator-General v. Avaridachari, I. L. R., 8 Mad., 466. So,
in Ponnusami Nadan v. Dorasami Ayyan (I. L. R., 2 Mad., 209), the Indian Succession Act was
held to govern the succession in Native Christian families.

A and ./, brothor.s. Native Christian, descendants of Biahmins, were living in coparcenary
and owned certain land when the Indian Succession Act came in force. In 1S72, no partition
having taken place, A died, and it was held that J did not take the whole estate of A by survivor-
ship — Tellis V. SnldarJia, I. L. R., 10 Mad., 69.

These were cases decided before Act VII of 1901.

In Dagree v. Parotti (I. L. R., 19 Boin., 783), it was held that the Indian Su'^:cession Act and
the rules of inheritance prescribed by it, apply to Hindus who have become Christians, and that
evidence to show that they and the community tu which they belonged have retained the Hindu
custom of inheritance is inadmissible — See Talbhai v. Louis Manad, I. L. R., 19 Bom., 680.

Ciitch Memons not being Hindus within the meaning of s. 2 cf the Hindu Wills Act, it was
held in 1880 that probate to take effect throughout India eoujd be granted in the ease of a will
of a Cutch Memon testator — In the matter of Haji Ismail, I. L. R., Bom., 452.

In cases not governed by the Indian Succession Act probate and letters of administration
granted by the High Court of Bomb?y, in respect of Hindus and Mahomedans and other persons
not usually designated as British subject take effect only and can only be granted for the purpose,
of recovering debts and securing debtors paying the same except ?o far as is otherwise provided
by Act XXVII of 1860— (See now the Succession Certificate Act, VII of 1880) and probate duty
is only payable on the amount of such debts — In the matter oi Haji Ismail, I. L. R., 6 Bcni., 4.52.

In the case of Ko Kya Daine [10 W. R., 417 : (s. c ) 2 B. L. R., A. C, 79], it was held in
1S68 that, under this Act. probate might be granted of the will of a Buddhist made after the 1st
January 1866. It was not, however, considered necessary that a wdl of a Buddhist should
be executed aecoiding to the formalities required by tlsis Act — See now the Probate and
Administration Act, s. 155.

But it was held in 1869, that the High Court had no power to grant probate of the will of a
Hindu in any case in which, according to the Hindu law of inheritance, the testator had no
power to make a will — Fackerooideen Adam Shaw, 11 W. R., 413.

The Suni Borah Mahomedan community of the Dhanduka T.aluka, in Gujarat, are governed
by the Hindu law in matters of succession and inheritance— Bai Baiji v. Bai Santolc, I. L. R., 20
Bom., 53.

In re Ibtnail, I. L. R., 6 Bom., 452. — In cases not governed by this Act probates and admini-
stration granted by the High Court of Bombay in respect of Hindu and Mahomedans and other
persons not usually designated as: British subjects to take eflect only and can only be granted lor
the purpose of recovering debts and surviving debtors paying the same except as is otherwise pro-
vided by Act XXVII of 1860 and probate duty is only payable on (he amount of such debts.
See also Ahmedho'j Hubibhoy v. Vullebkoy Cassumbhoy, I. L. R., 6 Bom., 703.

Matter of Kokya Dine, 2 B. L. R., A. C, 79. — Held that probate could be granted of the will
of a Buddhist made after 1st January 1866 and that it was not necessary that the will should be
executed according to the formalities of the Succession Act.

Note. — This was a decision before the passing of the Probate and Admmistration Act.

332. The Governor-General of India in Counci] shall, from time to time,

have power, by an order, either retrospectively from

Power of Governor- ,, • t i.-l- a i. j.- i i.^ „ ^^4-

General to exempt the passmg 01 this Act, or prospectively, to exempt

fn Bmilh^iEdia'"f?om f^om the operation of the whole or any part of this Act

«ie operation of this tJie members of any race, sect or tribe in British India,

or any part of such race, sect or tribe, to whom he may

S. 332.] EXEMPTION. 375

consider it impossible or inexpedient to apply the provisions of this Act, or of
the part of the Act mentioned in the order. The Governor-General of India
in Council shall also have power from time to time to revoke such order, but
not so that the revocation shall have any retrospective effect. All orders and
revocations made under this section shall be published in the Gazette of India.

As to persons to whom this Act does apply, see notes to s. 1, supnt.

Under this section Native Christians in the Province of Coorg have been exempted Irom the
provisions oi the Succession Act retrospectively from thf: 16th March 180.5 — Gnzette of India,
July 25, 1868, p. lf)94.

Khasias and Syntengs in Assam were similarly exempted as having special laws of inheri-
tance incompatible with the provisions of the Indian Succession Act — Gazette of India, 1877,
p. 512.

Jews in Aden were exempted as being a special class connected by affinity and customs with
the Jews of Arabia rather than with those in India — Gazette of India, 1880, p. 707.

When any person exempted from the provisionir of this section dies leaving assets within the
jiirisdiction of a District Judge, the District Judge is, in the first place, to take the charge of the
property, and report to the Administrator-General — See Act II of 1874 s. 64, pod. See also
Act VII of 1901.

[333. (1) When a grant or probate or letters of administration is revoked
or annulled under this Act, the person to whom the grant was made shall forth-
with deliver up the probate or letters to the Court which made the grant.

(2) If such person wilfully and without reasonable cause omits so to
deliver up the probate or letters, he shall be punished with fine which may
extend to one thousand rupees, or with imprisonment of either description for
a term which may extend to three months, or with both. J

This section has been added by s. IS of Act VI of 1 889. A similar scv^tion (s. 157) has been
added to Act V of 1881 by the same Act.

If a grant which has been revoked cannot be found an afltidavit is rcquiied by the practice
of the High Court showing the reasons why it cannot be found.

According to the practice when a grant dv. bonis tion is applied for the original grant has to
be annexed to the petition on praying for such grant.

i^CMEDVLE.— Repealed by Act No. VII of 1870.]


This Act was first introduced in Council on the 17th February, 1865.
by the Hon'ble Mr. Anderson and in his address he pointed out that in 1836
the Parsis petitioned the Government to be relieved from the operation of
the English law of primogeniture in relation to succession to immoveable
property, and the Act IX of 1837 was passed.

The Bill introduced was to exempt the Parsis from certain provisions of
the Indian Succession which was also at this time before Council for discussion.

The motion to introduce the Bill was put and agreed to.

On 24th February, 1865, the Bill was introduced and the Hon'ble Mr.
Anderson in his address referred to the provision of the Act and the chief prin-
cipal provision was the reduction of the share which females shall take in
succession to intestate property, and the question of the reason for the pro-
posed legislation was fully discussed. The Bill was at this meeting referred
to a Select Committee.

On 31st March, 1865, the Report of the Select Committee was presented.

On 7th April, 1865, the Report of the Select Committee was considered
and the Bill was at this meeting passed as amended.

1. Short Title, "The Parsi Intestate Succession Act, 1865— "see the
Indian Short Titles Act, 1897 (XIV of 1897).

For statement of Objects and Reasons of the Bill which was passed into
law as Act XX of 1865, see Gazette of India, 1865, p. 219 : for Proceedings
relating to the Bill, see ibid, supplement, pp. 68, 99, 113 and 154.

This Act has been declared to be in force in the whole of British India
except as regards the Scheduled Districts, by s. 3 of the Laws Local Extent
Act, 1874 (XV of 1874), printed, General Acts, Vol. II.

It has also been declared to be in force in the Arrakan Hill District by
the Arrakan Hill District Laws Regulation, 1874 (IX of 1874), section 3
printed, Burma Code, Ed. 1889, p. 353.

It has been declared by Notification under s. 3 {a) of the Scheduled Dis-
tricts Act, 1874 (XIV of 1874). printed, General Acts, Vol. II, to be in force
in tlie following Scheduled Districts, namely : —

Sindh ... ... ... ... See Gazette of India, 1880, Pt. I., p. 672.

West Jalpaifjuri ... ... ... Do. 1881, Pt. I., p. 74.

The Districts of Hazfirihaiili, Loliari1af;a

and Pargana Dhallilmm and the Kolhan

in the District of Singbhum ... Do. 1881, Ft. I., p. 504.

Kumaon and Garhwal ... ... Do. 1876, Pt. I., p. 605.


The Scheduled portion of the Mirzapur

District ... ... .... See Gazette of India, 1879, Pt. I., p. S83.

Jaunsar Bawar ... ... ... Do. 1879, Pt. I., v. B82.

The Districts of Hazara, Peshawar, Koliat,

Bannu, Dera Ismail Khan and Dera

Ghazi Khan ... ... ... Do. 1881?, Pt. I., p. 48.

A] mere and Merwara ._ ... Do. 1878, Pt. I., p. 880.

The District of Sylhet ... Do. 1879, Pt. I., p. 631.
The rest of Assam (except the North Lushai

Hills) ... ... ... Do. 1897, Pt. I., p. 299.

It harf been declared, by Notification under section 3 (6) of the last men-
tioned Act, not to be in force in the Scheduled District of Lahaul. See
Gazette of India, 1886, Pt. I., p. 301.

It has been extended, by Notification under section 5 of the same Act,
to the Scheduled District of the No^th- Western Provinces Tarai. See
Gazette of India, 1876, Pt. I., p. 50-5.


No. XXI OF 1865.

An Act to define and amend the law relating to Intestate Succession

among' the Parsis.

Whereas it is expedient to define and amend the law relating to in-
testate succession among the Parsis ; Jt is enacted as
Preamble. x n

lollows : —

1. Where a Parsi dies leaving a widow and children, the property of

which he shall have died intestate shall be divided

Division of property i.i j j i,-ij .u ^ xi i r

among widow and among the wiQow and chiiaren, to that the share of

children of intestate. g^^|^ g^„ ^^^^jj ^^ doyM^ the share of the widow, and

that her share will be double the share of each daughter.

2. Where a female Par^idie* leaving a widower and children, the pro-

perty of which she shall have died intestate shall be
among^°widower'^and divided among the widower and such children, su that
Children of intestate. ^^^ ^^^^^ g^^^jj ^^ double the share of each of the


3. When a Parsi dies leaving children, but no widow, the property of
Division of property which he shall have died intestate shall be divided

amongst children of amongst the children, so that the share of each son
ing no widow. shall be four times the share of each daughter.

Division amongst 4. When a female Parsi dies leaving children, but

teltatl" °ieiv^g^ n'J)' "o widower, the property of which she shall have died
widower. intestate shall be divided amongst the children in equal


5. If any child of a Parsi int?state shall have died in his or her lifetime,
ceased ^°^iid^s ^s^hare *^^ widow or widower and issue of such child shall
among widow or take the share which such child would have taken if
w^idow^er and issue of i- • - .i • - j. ^ i i ^r. • i. ^ :t

such child. livmg at the intestate s death in such manner as it

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

It is not a condition precedent to the application of this section that the predeceased son
of a Parsi intestate should have left both a widow and children. Thus, where an intestate
Parsi left him surviving a widow, sons, daughters, children of a predeceased son and the widow
of another predeceased son, who had died without issue, and ^i posthumous daughter wag after-
wards born at the intestate, it was held, that the last-mentioned widow was entitled to one
moiety of the share in the intestate's property, which her husband would have taken had he


survived the intestate ; and tliat the other moiety of such share devolved on the surviving
issue of the intestate including the posthumous daughter and the cliildren of liis ofh^r
predeceased now— Maticharyi K. Davar v. Mithibai, I. L. R., 1 Bom., 506.

6. Where a Parsi dies leaving a widow or widower, but without lea\nn2

w?inint"esfaL"?^re^ ^"-^ 1^'^^^^ descendants, his or her father and mother^

S?°nT ifn"eaT'l°sTIS-. '\ ^f f f '"" ^^^^"-'. ^/ ^f .^^ ^^^"^ '^ ^^e other is dead,
dants. >shall take one moiety ot the propert}^ as to which he or

she shall have died intestate, and the widow or widower shall cake the other

Where both the father and the mother of thp intestate survive him or
hei-, 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 sur-^dved 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, pro-
vided that the property shall be so distributed as that each male shall take
double the share of each female standing in thp same degree of propinquity, g

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

See Erasha Kaikliasru v. Jcrhui, I. L. R., 4 Bom., 537.

7. When a Parsi dies leaving neither lineal descendants nor a widow or
whSi'ii°es°tat'e leaves Widower, his or her next-of-kin in the order set forth
neither widow nor in the second schedule hereto annexed shall be en-
de«;endants°'^ ^"^^ titled to succeed the whole of the property as to which
he oc she shall have died intestate.

The next-of-kin standing first in the same schedule shall always be pre-
ferred to those standing second, the second to the third, and so on in succes-
sion, 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 pro-

Where there is no kin, the Crown would, of course, take as ultimwi haere

8. The following portions of the Indian Succession Act, 1865, shall not
Exemption of Parsis ^PPly /« Parsis (that is to say)— the whole of Part III,

from parts of Indian the whole of Part IV, excepting section 25. the whole

Succession Act, 1865. £T> j j_- m

of Part V, and section 43.

In excluding from application to Parsis section 43 of the Indian Succession Act, which
repeals the English rules as to advancement contained in the Statute of Distributions, it was