The Indian Succession Act, 1925

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The Act is known as Indian Succession Act, 1925. Act was enacted on 30th September, 1925. Basic purpose of enacting this act was to make different rules which will be applicable to person who make will before dying and to those who do not prepare will before dying and thereon. For the purpose of this act, “administration means, a person who is appointed by capable authority who can manage property of departed person when there is no officer who execute it”, “codicil is, such instrument which is made with respect to will, for adding, altering, of explaining any term or any portion of will”, “executor is a person who execute will of a deceased person”, “will is legal declaration of intention of testator in relation to his property which he desire to be carried with effect after his death”, “probate means an another copy of will which is certified with seal of court of having jurisdiction of doing so with grant of administration to estate of testator”.

Deceased person’s succession in regarding to immovable and property will be administered by law of India where he has made his domicile at time of his death. For succession of movable property, person who make domicile in such country, that countries law will be administer the succession of such movable property. For example, if person who has made his domicile in Indian and dies in Australia leaving behind his own property in Australia, then all succession will be regulated in India, if person who has made his domicile in Australia and if he die in India, leaving behind movable property in India then domicile made in Australia, rules of succession will be governed by such country in this case it is Australia. Every person can make only one domicile in relation to succession of immovable property.

In such manner, domicile of legitimate birth of a person depends on his fathers domicile, i.e., when such person was born his domicile was made in such country where his fathers domicile was made at his birth time, for e.g., x father of y (his son) was domiciled in country Australia then y will be domiciled in country Australia i.e., where his father is domiciled at times of his birth. In case of Illegitimate child domicile depends upon his mothers domicile i.e., if x being mother of y is domiciled in country Australia then y will be domiciled in Australia when means illegitimate person is domiciled in that country in which his mother has being domiciled. Such original domicile will procure till other domicile is prepared.

All agenate/cogenate (consanguinity) and kin are in relation to people who are descended from same family or same root. Consanguinity is of two types Lineal and collateral consanguinity. Lineal consanguinity is such type of consanguinity where relation exists between two people from one descended in direct line it can be either in upward line i.e., between man and his father which goes upward in line to grandfather, great grandfather or in downward line between father and his son which goes downward in line as grandson, great grandson. Collateral consanguinity is such type of consanguinity where relation between two people who are descended from same family but, none of them will be in direct line relation to each other i.e., relation is measured or should be counted towards ascending or descending order.

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For purpose of succession, such person should be related to deceased, through his father or those who are in relation to him through his mother, or those who are related to deceased through full blood or half blood, or was born or is in womb i.e., conceived by mother at time of death of deceased.

When a person dies without making any will for property he has left behind after his death is considered to be intestate, and such property is transferred to husband or wife or to them who are family of deceased a per said rules of act. In such case, when intestate leave behind wife and lineal descendant then property is divided as one-third property is given to widow and two-third to lineal descendant and no lineal descendant then whole property is given to widow, if not even widow to lineal descendant or related family member like if father is alive then property would be vested to him, if he is dead then to mother, sister, brother who are living.

Every sound person and who attained majority age i.e., above eighteen years is capable to prepare there own will and such will is prepared at his own wish, and this wishful act will decide what should be alienated to whom and in which manner. There is no specific format for will so even there’s no needed to draft it in difficult language rather it has to be unambiguous i.e., it should be drafted in very simple language and very clear in understanding. Thus, if will is made fully or any portion of it by way of fraud, threatening or any such way which is legally not acceptable such will or portion of such will is not valid or it will not be applicable. So, act provides that at anytime before executing will it can be changed fully or any part of will or even it can be revoked at any time. When in a will anything bequeathed is not clear or uncertain then it is counted as void.

In will when certain property is bequest to any person then he is eligible for that whole property unless will shows certain restriction to interest of bequeathed. When in will bequest is alternative to other person then bequest will be given to first name taken person i.e., if “x” bequest property to “y” and “z”, then if “y” is surviving then he will have property and “z” will have nothing and if “y” is died then “z” will have the interest. Once certain thing bequeathed to any person then any additional produce occurred by such thing, then person owning that thing is also liable for such additional produce for it.

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by Samata. H. Joshi.