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Aghnoo Nagesia v. State of Bihar (1966) : case analysis

Mary Roy v. State of Kerala (1986) : case analysis

This article is written by Sakshi Kuthari. It discusses all the details one should learn about while reading about the landmark judgement of Mary Roy v. State of Kerala, passed by the Hon’ble Supreme Court in 1986. This judgement gave equal intestate succession rights to women belonging to the Indian Christian Community.

India has been known for its male dominated culture, which reflects the deep-seated male misogyny where women have faced various challenges in practising equal rights to those of men. Gender inequality and discrimination resulted in women facing various obstacles in every sphere of life and prevented them from living a dignified life. But with the advent of time, there has been a gradual change of approach towards women in Indian society. One such change is the enactment of the Indian Succession Act, 1925. It is a uniform inheritance law and defines the rules relating to the distribution of property in case a person dies intestate, i.e., without making a will. The question arose amongst the members of the Indian Christian Community residing in the former state of Travancore as to whether, after the enactment of the said Act, the Travancore Christian Succession Act 1092 relating to intestate succession will remain in effect or will now be governed by the Indian Succession applicability of intestate succession laws before the Hon’ble Supreme Court.

Case name Mary Roy V. State of Kerala
Case no. Writ Petition (Civil) No. 8260 of 1983
Equivalent Citations 1986 AIR 1011, 1986 SCR (1) 371, 1986 (2) SCC 209
Act involved Indian Succession Act, 1925 and Travancore Christian Succession Act, 1092
Important provisions Section 29(2) of the Indian Succession Act, 1925 and Sections 16, 17, 21, 22, 24, 28 and 29,  Travancore Christian Succession Act, 1092 and Part-B of State (Laws) Act, 1951
Court Supreme Court
Bench Justice P.N. Bhagwati, Justice R.S. Pathak
Petitioners Mary Roy
Respondents State of Kerala
Judgement Date 24 February 1986

To understand the facts of the case, we need to understand the history of the members of the Indian Christian Community residing in the State of Travancore. Before July 19, 1949, the State of Travancore was a princely state and for the purpose of intestate succession, it was governed by the Travancore Christian Succession Act, 1092. The Act stated under Sections 16, 17, 21, and 22 that widows or mothers had only a life interest in regard to intestate succession of property which came to an end upon her death or remarriage. Unlike sons, the daughters did not inherit an equal share in the property but were only entitled to one-fourth of the son’s share or Rs. 5,000, whichever was lesser. This entitlement was void if Sthreedhanam had been provided or promised to the daughter by the intestate. But Section 30 of the said Act explicitly excluded the provisions of Sections 24, 28, and 29 for certain classes of Roman Catholic Christians belonging to the Latin Rite and Protestant Christians residing in the former territories of the State of Travancore.

During July 1949, Travancore merged with Cochin to form the Part State of Travancore- Cochin. For the purpose of unifying the laws across the whole of India, including Part B states. Parliament passed the Part States (Laws) Act, 1951, which included the implementation of the Indian Succession Act, 1925, in these Part States. Various judicial questions arose regarding the impact of the extension of the Indian Succession Act, 1925, on the Travancore Christian Succession Act, 1092, and whether it impliedly repealed the latter Act. The Court held that Section 29(2) of the Indian Succession Act, 1925, expressly exempted the provisions of the Travancore Christian Succession Act, 1092. Even after the enforcement of the Indian Succession Act, 1925, the Indian Christians residing in the Part State of Travancore-Cochin were governed by the Travancore Christian Succession Act, 1092.

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In this case, Mr. P.V. Isaac had four children, two sons, John (who died in 1999) and George, and two daughters, Molly and Mary. He executed a deed of settlement in favour of his wife and gave his property as a life-estate to her in 1959. The youngest daughter, Mary, did not get Sthreedhanam at the time of her marriage since she got married to a Bengali Hindu. After a few years of marriage, her husband turned out to be an alcoholic. She then left him and moved with her two children to Ooty, where her deceased father owned a cottage. When George, his elder brother, got to know that Mary was residing in that cottage, he started  harassing her. He wanted to evict Mary from their father’s property and for that purpose, he even hired thugs who intimidated and threatened her with bodily injury if she did not leave the property. Mary had no other place to reside and she kept staying on her father’s property. 

Under Section 28 of the Travancore Christian Succession Act, 1092, George accused Mary of illegally occupying and claiming ownership of that property, but Mary was determined not to leave her father’s property. She realised that the Act of 1092 did not acknowledge equal coparcenary rights of successors to the property and her right to equality under Article 14 of the Constitution was being violated, which provides that the state shall not deny any person equality before law, which prohibits discrimination and equal protection of law.

Mary wanted to make herself financially independent so that she could become wealthier than her brother. She opened a small school in Kottayam, which started doing well and then filed a suit in the lower court against her brother to get equal succession rights in her father’s property. But the lower court rejected her suit. She then filed an appeal in the Kerala High Court, where her plea was granted and she got control over the property but not ownership.  Mary was not satisfied with the Kerala High Court’s judgement. She moved to the Hon’ble Supreme Court to seek constitutional remedy since she was being deprived of her fundamental rights and filed a PIL under Article 32 of the Constitution, challenging the constitutional validity of Sections 24, 28, and 29 of the Travancore Christian Succession Act, 1092.

The following issues were raised by Mary Roy in her petition:

  1. Whether the provisions of the Travancore Christian Succession Act, 1092, violated Mary’s right to equality under Article 14 of the Indian Constitution?
  2. Whether in the former State of Travancore, the provisions of Part B of the State Laws Act of 1951 are applicable?
  3. For the purpose of resolving disputes relating to intestate succession, would the Travancore Christian Succession Act, 1092, or the Indian Succession Act, 1925, be applicable?
  4. Whether the Kerala High Court’s verdict was legal and should have retrospective operation?

Petitioners

The petitioner was represented by Ms. Indira Jai Singh and Ms. Kamini Jaiswal in the present case and challenged the validity of certain Sections of the Travancore Christian Succession Act, 1092, on the following grounds:

  • The counsel for the petitioner addressed several sections of the Travancore Christian Succession Act, 1092, that violated the fundamental right to equality under Article 14 of the Indian Constitution.
  • The counsel on behalf of the petitioner also pointed out that after the implementation of Part State (Laws) Act, 1951, and Indian Succession Act, 1925, Sections 24, 28, and 29 of the Travancore Succession Act, 1092, are not applicable entirely.

Respondent

  • The counsel for the respondents contended that the Travancore Succession Act, 1092, was enacted in the past and that abolishing the said Act would impact people’s beliefs and customs.
  • The respondents also claimed that the petitioner deliberately wanted to disrupt society’s norms to become independent and modern.

The Indian Succession Act, 1925, deals with two types of succession, namely, testamentary succession and intestate succession. Testamentary succession occurs when the deceased individual explicitly makes provisions for the distribution of his or her property through a valid will. Intestate succession under the Indian Succession Act, 1925, varies for different religions. The Travancore Succession Act, 1092, violated the fundamental right to equality of the Indian Christian Community members who were governed by the said Act. The Christians in Travancore and Cochin were before 1986 under the belief that they were governed by the Travancore Succession Act, 1092, and the Cochin Christian Succession Act, 1921, respectively. Until the Hon’ble Supreme Court considered the impact of the Part B State Laws Act, 1951, the Schedule of the Indian Succession Act, 1925, and rendered the Travancore Succession Act  inoperative with effect from April 1, 1951. The enforcement of the Indian Succession Act, 1925, came into effect in the former State of Travancore as well.

The probation of wills was not a mandate for the Christians of Travancore and Cochin because of their personal succession laws before 1951, whereas Section 213 of the Indian Succession Act, 1925, required the wills to be probated and any family settlement that was not probated became invalid after 1951. Any partition or family settlement made under the Travancore Succession Act, 1916, in the case of an intestate succession became ineffective and no longer served as securities for financial transactions. In addition to this, daughters (sisters), who were excluded from inheritance because of their personal succession laws, now became capable of contesting their share in the father’s property.

The Indian Succession Act, 1925, came in place of the Indian Succession Act, 1865, and merged various succession laws relating to testamentary and intestate succession. The application of this Act did not extend to the Indian Christian Community throughout India since it did not have an “extend clause.” State governments were given discretion under Section 3 of the Part States (Laws) Act, 1951, which exempted certain races, castes, and tribes from its operation, and under Section 29(2) of the Indian Succession Act, 1925, which preserved existing laws in force. The States of Travancore and Cochin were exempted before 1951 because they were Princely States and beyond British sovereignty and legislative authority. 

After India’s independence in 1947, the states of Travancore and Cochin remained princely states. The Instruments of Accession by their respective Maharajas were signed in the year 1949 and under the Part B State (Laws) Act, 1951, they became Part B States, which therefore allowed for the extension of certain enactments listed in its Schedule to the Part B States. Section 6 of this Act further implied that any laws in force in these states corresponding to those Acts extended to Part B States would be repealed. The applicability of the Travancore Christian Succession Act came into question and the different courts focused solely on the provisions of Chapter II of Part V of the Indian Succession Act, 1925.

The rules relating to intestate succession for individuals other than Parsis are provided in Chapter II of Part V of the Indian Succession Act, 1925. Section 31 of the said Act explicitly excludes Parsis from this chapter. It provides intestate succession rules relating to Christians residing in the Part State of Travancore-Cochin and in the former territories of Travancore, but the respondents resisted its implementation on the ground that Section 29(2) of the Indian Succession Act, 1925, saved the provisions of the Travancore Christian Succession Act, 1092. Section 3 of the Part State (Laws) Act, 1951, extended the implementation of the Indian Succession Act, 1925, in the Part State of Travancore-Cochin and if there was any corresponding law to the Indian Succession Act, 1925, before April 1, 1951, it stood to be repealed.

Solomon & Ors. v. Muthiah & Ors. (1970) 

The Hon’ble Madras High Court in this case held  that the Travancore Succession Act, 1092, was a law corresponding to the provisions of intestacy contained in Chapter II of Part V of the Indian Succession Act, 1925, and repealed the Travancore Christian Succession Act, 1092, by virtue of Section 6 of the Part-B State (Laws) Act, 1951 and  it could not be held to be saved by Section 29(2) of the Indian Succession Act, 1925. Section 29(2) of the said Act made it clear that the provisions of Part V of the Act are of universal applicability until their applicability has not been excluded either expressly or impliedly by any other law for the time being in force.

It was also noted that if relating to intestate succession there is a custom or any other law, it will not lead to the exclusion of the applicability of Chapter II of Part V of the Indian Succession Act, 1925. A custom cannot exclude the applicability of the provisions of a particular statute, but a statute can do it. Until and unless the provisions of Part V of the Indian Succession Act, 1924, have not been excluded, Part V shall remain in force and there is no warrant for holding that Section 29(2) of the said Act saves an existing custom or existing law relating to intestate succession.

D. Challaiah & Anr. v. G. Lalitha Bai & Anr. (1978) 

The Division Bench of the Hon’ble Madras High Court, in this case, overruled the Solomon Case by holding that even though after the enforcement of the Indian Succession Act, 1925, the Travancore Christian Succession Act, 1092, was in operation in the State of Travancore. The Act of 1925 will not be applicable to Christians even after the merger of the State of Travancore with the State of Cochin. There was not a major difference between Section 29(2) of the Indian Succession Act, 1925 and Section 29(1), since it included the application of the enactment to Hindus, Muhammadans, Buddhists, Sikhs, or Jains, as well as persons who are covered by any other law for the time being in force. The interpretation of Section 29(2) was done by the Court in a way to  exclude the application of Chapter II of Part V of the Indian Succession Act, 1925. The Court also observed that when the Act of 1925 does not expressly apply to the Christians of Travancore, the application of the Travancore Regulations shall remain unaffected. It was also noticed that until the Indian Christian Act, 1925, operates with Sections 29(1) & (2), the Travancore Regulation cannot be said to be repealed because of the provisions of Section 6 of the Part-B State (Laws) Act, 1951.

Kurrian Augusthy v. Devassy Aley (1957)

The Hon’ble Travancore-Cochin High Court in this case upheld the applicability and existence of the Travancore Regulation. Indian Christians in the State of Kerala were governed by two different succession Acts, namely the Travancore Succession Act, 1916, and the Cochin Christians Succession Act, 1921. Justice Joseph Vithayathil was of the opinion that, by reason of Section 29(2) of the Indian Succession Act, 1925, it is deemed to have been adopted by reference to all laws for the time being in force relating to intestate succession, including the Travancore Christian Succession Act, 1092 so far as Indian Christians in Travancore are concerned.

Issue 1 

Women belonging to the former State of Travancore were governed by the Travancore Christian Succession Act, 1092. Sections 16-19 of the said Act dealt with intestate succession and were considered a violation of the right to equality under Article 14 of the Indian Constitution. It stated that the widow or mother would be entitled to only life-interest in the deceased’s property and the daughters were not entitled to inherit the property in equal proportion to that of the son. The Hon’ble Supreme Court held the following provisions as discriminatory and void as being a violation of Article 14 of the Indian Constitution.

Issue 2

On April 1, 1951, Part B of the State (Laws) Act, 1951, came into force, and the Travancore Succession Act, 1092, was repealed. Chapter II of Part V of the Indian Succession Act, 1925, came into operation after the said date and the intestate succession of the Indian Christians residing in the former State of Travancore was now governed by the Act of 1925.

Issue 3

Section 6 of the Part B State (Laws) Act, 1951, outlined the repealing provision, which expressly stated that before April 1, 1951, any law corresponding to any of the Acts or Ordinances extending to the Part B States was in force, unless otherwise expressly provided by the State (Laws) Act, 1951, and would stand repealed.

Section 3 of the Part State (Laws) Act, 1951, made the operation of the Indian Succession Act, 1925, applicable to the Part State of Travancore-Cochin and if there was any law corresponding to the Indian Succession Act, 1925, in the said area immediately before April 1, 1951, such law would stand to be entirely repealed. The provisions of Chapter II of Part V of the Indian Succession Act, 1925, extended to the territories of the former State of Travancore, thereby repealing the Travancore Christian Succession Act, 1092, in its entirety and Section 29(2) of the Indian Succession Act, 1925, could not save the continuation of the Act of 1092.

Issue 4

The Hon’ble Supreme Court ruled that the Kerala High Court’s verdict was appropriate and legal and that the decision in favour of Ms. Mary would have a retrospective operation. She received one third of the land.

The judgement in this case made the enforcement of the Indian Succession Act, 1925, applicable to the State of Travancore as well because of the provisions of the Part B State (Laws) Act, 1951. The Hon’ble Supreme Court renounced the contention that the Act is wholly applicable because of the saving clause under Section 29(2). The constitutional validity of Sections 24, 28, and 29 of the Travancore Succession Act, 1092, was not looked into by the Court to declare it unconstitutional and void, and it allowed the writ petition to declare that intestate succession to the property of the Indian Christian Community residing in the former State of Travancore is now governed by Part V of the Indian Succession Act, 1925. The only drawback is that the reasoning could not be sustained on any ground since the court did not examine the issue in the constitutional context and gave retrospective operation of the decision from the date of April 1, 1951.

The Christian Community Women at Large welcomed the judgement of the Hon’ble Supreme Court because it ended the discriminatory inheritance provisions against the Christian women of Travancore as well as the Christian women of Cochin, who were governed by the Cochin Christian Inheritance Act, 1921. 

The decision was a milestone to bring gender equality into matters relating to  intestate succession, but the Travancore Act was not completely struck down on the question of its constitutional validity but rather on the operation of the Part-B State (Laws) Act, 1951. It fails to be recognised as a precedent or even an obiter dicta since it does not establish the rights of inheritance for Christian women per se. It was only applicable to those Acts hit by the Act of 1951. The Court only took consideration of the discrimination against women in intestate succession matters and did not address the issues concerning inheritance laws alongside the Indian Succession Act, 1925. They only expanded the application of the Indian Succession Act, 1925, through the Part B State (Laws) Act, 1951. The negation of the Travancore Christian Succession Act, 1092, also meant the absolute application of the Indian Succession Act, 1925. In other matters as well beyond intestate succession, such as wills, it is mandatory under Section 213 of the Indian Succession Act, 1925 for the wills to be probated. The judgement also invalidated all the unprobated family settlement deeds that were made between 1951 and 1986 because of its retrospective operation.

Who is a legal heir as per Indian Family Law ?

The legal heir is an individual who has a birth right and entitlement to inherit the wealth and property of the deceased individual. The property is received either through a registered legal will or through personal succession law applicable and other succession statutes like the Indian Succession Act, 1925.

What is the difference between a nominee and legal heir?

The nominee acts as a representative and custodian of the assets, looking after the assets of the owner. The assets belong to the legal heirs of the deceased member and cannot be replaced by the rightful legal heir. A legal heir is the individual who has the right to inherit the assets belonging to the deceased. Once the legal heir attains the age of majority, the nominee takes possession of the assets.

What does probate of a will mean?

To understand “Probate of a Will,”  it is necessary to know the meaning of a will. A will is a legal document in which a living person, in his lifetime, mentions how his property is to be distributed after his death. The person who makes the will is known as the “testator,” and the one whose name is mentioned in the will who gets the document executed is known as the “executor.”

Section 2 of the Indian Succession Act, 1925, defines the term “probate” as a certified copy of a will signed and sealed by a court of competent jurisdiction having jurisdictional authority and having the power to grant administration over the assets of the testator. It is a process in which the authenticity, accuracy, and legality of the deceased’s will are confirmed. 

Why is there a need for probate of a will?

There is a need to probate a will because when the testator (the creator of the will) dies, the legal heir could easily transfer all the assets if the will is probated. It might ease the process for the legal heir to transfer property in his/her own name when the testator might own different immovable assets in different areas or states. Probate is always granted to the executor of the will and holds the authority to distribute the testator’s assets, pay off bills, and satisfy creditors from that estate.

When does it become mandatory to probate a will?

There are only two conditions under the Indian Succession Act, 1925, where it is mandatory to probate the will. Firstly, when the testator has made the will within the geographical limits of the State of West Bengal and the municipal limits of Chennai, Mumbai, or any other area that was earlier under the rule of the Lieutenant Governor (1925). Secondly, it is mandatory to probate when the will is made by a Hindu, Jain, Sikh, or Buddhist, even though it does not deal with any immovable property.

How is ancestral property different from self-earned property?

An undivided interest in the property that is inherited from the great grandfather, father’s father, and father is known as an “ancestral property. If the property is inherited from the maternal side, it is not considered an ancestral property. The right to ancestral property is obtained by birth, not by the death of their predecessors. Daughters have now been given an equal share of the ancestral property to promote gender equality and restrict the willful disposition of an ancestor’s assets without the consent of all the legitimate heirs.

A self-earned property is  purchased by an individual with his or her own money and has the right to be sold off by the owner without any other person’s consent or assistance. The rights acquired by the owner of such property give them the discretion to decide to whom to  gift, lien, mortgage, etc. the property. The owner can show evidence in the form of a sale-deed, bank transfer payments or cheque clearance statements, possession letters, and a land patta to prove the ownership of the self-acquired property. 

Does the married woman have the right to the ancestral property of the father?

Depending upon the religion practised and professed by an individual, inheritance laws may differ since each and every community has varied succession laws. India, being a secular country, provides different laws for all religions, such as the Hindu Succession Act of 2005, the Indian Succession Act of 1925, and the Muslim Personal Law Application Act of 1937.  These Acts are the most prominent succession laws that are widely applicable in India.

Hindus, Jains, Sikhs, and Buddhists are governed by the Hindu Succession Act of 2005, which deals with the inheritance and sharing of property among members of these communities. It is a uniform and comprehensive system of inheritance and intestate succession provided by one single Act. The Muslims are governed by the Muslim Personal Law Application Act of 1937, which relates particularly to the laws relating to marriage, succession, inheritance, and charities amongst Muslims. It does not apply to the State of Goa, where the Goa Civil Code is applicable to all persons, irrespective of their religion. The Indian Succession Act of 1925 applies to Christians, Jews, and Parsis, governing the inheritance and sharing of property among members of these communities. It is so because Christians in India had earlier various laws on succession and familial relations. All these laws have several provisions and rules regarding the rights and sharing of property for men and women, which govern them for the purpose of succession of property.