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    Widow's Right of Succession in IndiaAuthor(s): J. N. SaxenaSource: The American Journal of Comparative Law,  Vol. 11, No. 4 (Autumn, 1962), pp. 574-585Published by: Oxford University PressStable URL: 15-09-2017 14:03 UTC   JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a widerange of content in a trusted digital archive. We use information technology and tools to increase productivity andfacilitate new forms of scholarship. For more information about JSTOR, please contact Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at Oxford University Press  is collaborating with JSTOR to digitize, preserve and extend accessto The American Journal of Comparative Law  This content downloaded from on Fri, 15 Sep 2017 14:03:08 UTCAll use subject to   Comments  WIDOW'S RIGHT OF SUCCESSION IN INDIA  The institution of the family, one of the pivots of the social syste  been subjected to drastic alteration by several Acts of Parliamen  contain provisions of a revolutionary character. 2 Most of these Acts a the Hindus, the majority community in India, and have rendered their law, as it stood at the beginning of Independence in 1947, almost unrec  able. But it would be wrong to suppose that the Parliament of In not afforded an opportunity to other communities also to adopt rational system of family law-rational in the sense of being in lin  other developing legal systems of the world today.  It was inevitable that these changes should have taken place  today is not solely an agricultural country. It is slowly, but surely dev  ing its industrial potentialities. Education is spreading not only am  but even more among women. The importance of the 'joint family  unit of society is fast fading, and the personality of the 'individual' is ground. A man of average intelligence in India today cannot b  believe that he will have no salvation without a son8 or that a so  agnate is more important to him to avenge4 than his wife. India is a vast country, and its population is composed of people belo  to different religious, cultural, and social groups. It is, therefor  natural though not very happy, to find great diversity in their p  laws. The law of succession is no exception. Broadly speaking,5 ther  present three sets of laws that govern succession in India:  1 (a) The Special Marriage Act, 1954.  (b) The Hindu Marriage Act, 1955.  (c) The Hindu Succession Act, 1956.  (d) The Hindu Minority and Guardianship Act, 1956. (e) The Hindu Adoptions and Maintenance Act, 1956.  2 Edward Jenks, Recent Changes in Family Law, (1928) 44 L.Q.R. 314.  s This was the belief among Hindus based upon the doctrine of spiritual benefi in itself was founded upon the 'sradha ceremony,' in the course of which the pe presented different kinds of offerings, e.g., pinda and libations of water to his ancestors.  4 Pre-Islamic Arabia, like the bedouin of Arabia today, was organized on and patriarchal basis. Outside the tribe there was no security other than the u  law of the blood feud, under which a man must be avenged, if killed by one of a tribe, by his agnatic relatives, while it was the agnatic relatives of the killer wh  if they wanted to avoid further bloodshed, provide the bloodwite by way of c tion to the 'heirs of blood.' It was only natural, therefore, that it should be t  agnates who would also normally succeed to a man's property on death, and that cognates and indeed minors should have no such right. J. N. D. Anderson, Isl  in the Modern World (1959) pp. 60-61.  5 For there are some persons who are still governed by the customary la  matter of succession.  574 This content downloaded from on Fri, 15 Sep 2017 14:03:08 UTCAll use subject to   1962] COMMENTS 575  1 The uncodfied Mhamm  2 The Indan Succession Ac  3 The Hndu Succession Ac The popuation of Inda at p Hndus, Mhammdans, Chri  succession these are governe  The scope of ths paper is to these communties, so far as agricutural land is concerne  availabe under the general In  share bythe particuar law  venence and to avoid confusion  and intestate succession affec  For the purposes of ths pap  had onyone wfe  I. HSTORCAL DEVELOP  Before dscussing the lawo  communties in Inda, it is wor of lawas enforced and develope  A far back as 1772, Wrren  Dwn Adalats (Cvl Court  accordng to the law of th  and the law of the Shaster other words mant the Musli  Hndus respectively6 Ths state regm in Inda, for the British  gven bythe Second LawCom  the Hndu and Mhammdan tion in Inda, consisting of governed bytheir own personal  The position regardng othe  Armnans, Parsis, Ango-Ind  presidencytowns,8 theywr  limts there ws no certainty European ws entitled to the confusion prevailed, but, as the  decided wthout much dffic  etc, there does not appear to h  appicabe to them  6 M P Jain Outlines of Indan 7 Ths ws appointed in Engand i  mndations for the reformof cour  Hndu Lawand the Mhammdan Hndu and Mhammdan religons. the Mhammdan or Hndu relig  Law. 8 Calcutta, Bombay, and Madras. This content downloaded from on Fri, 15 Sep 2017 14:03:08 UTCAll use subject to   THE AMERICAN JOURNAL OF COMPARATIVE LAW  Considering the situation, the Third Law Commission9 came to the con-  clusion that there was a great want of substantive civil law for various  classes of persons not professing the Hindu or the Mohammedan religion,  and that a law to regulate devolution of property on death was most urgently  required by those classes. Consequently, the Commissioners in their very  first Report produced a draft of the Indian Succession Act which was passed as the Indian Succession Act (Act X), 1865. The Act was to serve  as the general law governing all who were not expressly exempted from it.  Europeans, Jews, Armenians, and Indian Christians were subject to this general law. Hindus, Mohammedans, and Buddhists were excluded from  the Act. Parsis came to have separate law as to intestate succession in the  very same year known as the Parsi Intestate Succession Act (Act XXI),  1865. The Indian Succession Act, however, applies to them in cases of  testamentary succession. In 1925 the Act of 1865 was revised and a consolidating measure called the  Indian Succession Act (Act XXXIX) of 1925 was passed.10 The Parsi  Intestate Succession Act was bodily incorporated in it in Chapter III verbatim  and without any change, and by Schedule IX of that Act the Act (Act XXI)  of 1865 was repealed. The Parsi law of intestate succession was, however,  amended by the Indian Succession (Amendment) Act (Act XVII) of 1939.  The main change, relevant to the scope of this paper, was the improvement in the position of the widow (relatively to the son) in respect of succession to the property of a male Parsi intestate.1  II. TESTAMENTARY SUCCESSION  A. Mohammedan Law. The Muslims in India form two broad categories,  the Sunnis ( Hanafis) and the Shias. In pre-Islamic days, the power of a man  to dispose of his property was unlimited.12 But the Koranic injunction13  allotting definite shares of the inheritance, and a tradition of the Prophet14 curtailed his power in this respect.  Today, the testamentary power of a Mohammedan in India is limited in  two ways: (i) A Mohammedan cannot, by will, dispose of more than a  third of the surplus of his estate after payment of funeral expenses and debts.  Bequests in excess of the legal third cannot take effect unless the heirs  9This was established in December, 1861, for the purpose of preparing a body of  substantive civil law for India.  0 M. P. Jain, Outlines of Indian Legal History (1952) p. 472.  11 The Amending Act of 1939 made the widow's share, previously half the share of the  son, equal to the son's share.  12 A. A. A. Fyzee, Outlines of Muhammadan Law (1949) 301.  1' Koran IV-11, 12, and 177.  14 The tradition of the Prophet, as reported by Bukhari is: 'Sad ibn Abi Waqqas said:  The Messenger of God used to visit me at Mecca, in the year of the Farewell pilgrimage,  on account of (my) illness which had become very severe. So I said, 'My illness has  become very severe and I have much property and there is none to inherit from me but  a daughter, shall I then bequeath two thirds of my property as a charity?' He said,  'No.' I said, 'Half?' He said, 'No.' Then he said: 'Bequeath one third and one third is  much for if thou leavest thy heirs free from want, it is better than that thou leavest  them in want, begging of (other) people .. . A. A. A. Fyzee, Outlines of  Muhammadan Law (1949) p. 302.  576  [Vol. 11 This content downloaded from on Fri, 15 Sep 2017 14:03:08 UTCAll use subject to
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