Domicile & Intestate Succession under the ISA 1925 (Parsi & Christian) — Muslim Law (Family Law II) Notes

Domicile

A man born in India dies in England, owning a flat in London and cash in Germany. Which country’s law decides who inherits? The answer turns on one idea a first-year conflicts student learns and a KSLU examiner loves to test: domicile — and the rule that movables follow the person, immovables follow the land.

What is domicile?

Domicile is a person’s permanent legal home — the country whose law he is taken to belong to for personal-law purposes (succession, marriage). It is more than residence: it requires residence plus the intention to remain permanently. A person can have only one domicile at a time, and can never be without one.

Kinds of domicile (Indian Succession Act, 1925, ss.6–19):

Domicile of origin — the domicile a person has at birth (a legitimate child takes the father’s domicile; an illegitimate child, the mother’s). It clings until a new one is acquired, and revives if a domicile of choice is abandoned.
Domicile of choice — acquired by an adult by residing in a new country with the intention of permanent residence there (s.10). Both elements — the fact of residence and the intention (animus manendi) — must combine.
Domicile by operation of law (dependence) — the domicile of a minor (follows the parent), a married woman (formerly followed the husband; now she may have an independent domicile), and persons of unsound mind.

How domicile is acquired in India. A person acquires a domicile of choice in India by taking up residence here with the intention to reside permanently; under section 10 of the ISA, “a man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin.”

Why it matters — the succession rule:

Movable property — succession is governed by the law of the deceased’s domicile at death.
Immovable property — succession is governed by the lex situs — the law of the country where the property is situated.

The place of death is irrelevant — that is the planted decoy in every domicile problem.

Section 5, Indian Succession Act, 1925: “Succession to the immovable property in India of a person deceased shall be regulated by the law of India, wherever such person may have had his domicile at the time of his death. Succession to the movable property of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death.”

In Simple Terms: Domicile is your permanent legal home — residence plus intention to stay for good. You get one at birth (origin) and can change it (choice) by settling somewhere permanently. For inheritance: your movables go by your domicile’s law; your land goes by the law of wherever the land is. Where you happen to die does not matter.

🧩 WORKED EXAMPLE — dies abroad, property in several countries

Facts. A, domiciled in India, dies in England, leaving movable property in England and Germany, and property (movable and immovable) in India.

Rule. Movables → law of domicile (India); immovables → lex situs (the country where each immovable lies). Place of death is irrelevant.

Apply. All movables (in England, Germany and India) → Indian law (his domicile). The immovable property in India → Indian law (lex situs).

Decoy. He died in England — irrelevant; England’s law governs none of it here.

Conclusion. Indian law governs the movables everywhere and the Indian land; any foreign immovable would go by that foreign country’s law.

flowchart TD
    ROOT["Domicile"]:::root
    ROOT --> K["Kinds"]:::leaf
    K --> K1["Origin (at birth)"]:::leaf
    K --> K2["Choice (residence + intention)"]:::leaf
    K --> K3["By operation of law (dependence)"]:::leaf
    ROOT --> S["Succession rule"]:::leaf
    S --> S1["Movables → law of domicile"]:::leaf
    S --> S2["Immovables → lex situs"]:::leaf
    S --> S3["Place of death irrelevant"]:::leaf
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    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Kedar Pandey v Narain Bikram Sah (1965) — domicile of choice requires residence coupled with the intention of permanent residence; the burden lies on the person asserting a change.
Central Bank of India v Ram Narain (1955) — a person retains his domicile of origin until he acquires a domicile of choice by residence plus intention.

Parsi Intestate Succession

Until 1991, a Parsi widow and daughter took only half the share of a son. The amendment of that year swept the discrimination away: today a Parsi widow, son and daughter each take an equal share. The KSLU problems reward knowing the post-1991 equal-share rule.

What are the rules of Parsi intestate succession?

The intestate succession of Parsis is governed by sections 50–56 of the Indian Succession Act, 1925 (as amended in 1991). The scheme, in outline:

Where a Parsi male dies leaving a widow and children: the widow and each child take equal shares (s.51). (Before 1991 the widow and daughter took half a son’s share — now abolished.)
Where a Parsi female dies leaving a widower and children: again, the widower and each child take equally.
Parents’ share — where the intestate leaves a parent (father or mother) in addition to a widow/widower and children, each parent takes a share equal to half the share of a child.
Predeceased children — the share a predeceased child would have taken passes to that child’s own lineal descendants (representation, per the Act’s rules).

The guiding modern principle is equality between sons and daughters and between a widow and a widower.

Section 51, Indian Succession Act, 1925 (Parsi intestate): where a Parsi dies leaving a widow/widower and children, “the property… shall be divided so that the widow or widower and each child receive equal shares.”

In Simple Terms: For Parsis dying without a will, the widow (or widower) and every child — son or daughter — take equal shares. A surviving parent takes half a child’s share. The old rule that gave women less was removed in 1991.

🧩 WORKED EXAMPLE — Parsi male: widow, son, daughter

Facts. A male Parsi dies intestate leaving his widow, one son and one daughter. Divide the estate.

Rule. Post-1991, the widow and each child take equal shares (s.51 ISA).

Apply. Three equal claimants — widow, son, daughter.

Conclusion. Each takes one-third — widow 1/3, son 1/3, daughter 1/3.

flowchart TD
    ROOT["Parsi intestate (ISA ss.50-56)"]:::root
    ROOT --> A["Widow/widower + each child: EQUAL shares"]:::leaf
    ROOT --> B["Parent: half a child's share"]:::leaf
    ROOT --> C["1991 amendment: removed gender discrimination"]:::leaf
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    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
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Case Laws

Parsi intestate succession is governed by the special scheme in sections 50–56 of the Indian Succession Act, 1925, equalised by the Indian Succession (Amendment) Act, 1991, which gave the widow, sons and daughters equal shares.

Non-Parsi (incl. Christian) Intestate Succession

An Indian Christian dies leaving two sons and a father. Who takes? Under the Indian Succession Act, the children exclude the father — a rule that surprises students used to parents inheriting. And Christian children, unlike some other systems, take equally regardless of sex.

How does non-Parsi (Christian) intestate succession work?

For Christians and other non-Parsis the rules are in sections 31–49 of the Indian Succession Act, 1925. The scheme turns on who survives.

Where the intestate leaves a widow/widower and lineal descendants:

The widow (or widower) takes one-third; the lineal descendants take the remaining two-thirds (s.33).

Where there are lineal descendants but no spouse:

The whole goes to the lineal descendants.

Distribution among descendants (ss.36–40):

Children take equally — sons and daughters take the same share (no sex distinction).
Where a child has predeceased the intestate leaving children of his own, distribution is per stirpes (by branch): the predeceased child’s branch takes the share he would have taken, divided among his own children.

Where there are no lineal descendants:

The widow takes one-half; the other half goes to the kindred (father, mother, siblings) per the Act’s order (s.33, 42–48). The father takes first among the kindred; if no father, the mother and siblings share.

Where there is a widow but no lineal descendant and no kindred: the widow takes the whole.

Section 33, Indian Succession Act, 1925: where the intestate leaves a widow and lineal descendants, “one-third of his property shall belong to his widow, and the remaining two-thirds shall go to the lineal descendants.”

In Simple Terms: For a Christian dying without a will: with a spouse and children, the spouse takes one-third and the children two-thirds equally (sons and daughters alike); a dead child’s share goes to that child’s own children (per stirpes). With no children, the spouse takes half and the blood relatives (father first) take the rest.

🧩 WORKED EXAMPLE — Indian Christian: two sons and a father

Facts. A, an Indian Christian, dies intestate leaving two sons and his father. Distribute.

Rule. Lineal descendants exclude the father; children take equally.

Apply. The two sons are lineal descendants and take the whole; the father takes nothing.

Decoy. The surviving father tempts you to give him a share — the Act excludes him when children survive.

Conclusion. Each son takes one-half; the father takes nothing.

flowchart TD
    ROOT["Non-Parsi/Christian intestate (ISA ss.31-49)"]:::root
    ROOT --> A["Spouse + descendants: spouse 1/3, descendants 2/3"]:::leaf
    ROOT --> B["Descendants only: whole to them (equal, per stirpes)"]:::leaf
    ROOT --> C["Spouse, no descendants: spouse 1/2, kindred 1/2"]:::leaf
    ROOT --> D["Children take equally regardless of sex"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Mary Roy v State of Kerala (1986) — Christian women are entitled to an equal share in intestate succession under the Indian Succession Act, overriding the discriminatory Travancore/Cochin custom.

Succession Certificate, Probate & Letters of Administration

A man dies; his bank will not release his fixed deposit to the family, and a debtor will not pay the “heirs” without proof. The law’s answer is a set of court certificates — a succession certificate, probate, or letters of administration — each for a different situation. Confusing them costs marks.

What are these three instruments?

All three are grants by a court authorising someone to deal with a dead person’s estate — but for different property and situations.

Succession Certificate (ISA, ss.370–390).

What — a certificate authorising the holder to collect debts and securities (bank deposits, shares, loans) owed to a deceased who died intestate.
When/where — granted by the District Judge of the place where the deceased ordinarily resided (or where the property is).
How (procedure) — the applicant files a petition stating the death, the relationship, the debts/securities and the absence of dispute; the court issues notice, publishes it, hears objections, and (usually after security) grants the certificate.
Limit — it covers only debts and securities, not immovable property, and it does not establish title conclusively — it only protects those who pay the holder.

Probate (ISA, ss.222–234).

What — a copy of a will certified by the court, granting the executor named in the will authority to administer the estate.
When — where the deceased left a will appointing an executor.
How — the executor petitions the court, proves the will (its due execution and the testator’s capacity), and probate is granted; it is conclusive evidence of the will’s validity and the executor’s title.

Letters of Administration (ISA, ss.234–236).

What — a court grant authorising an administrator to administer the estate where there is no executor — i.e. the person died intestate, or left a will but named no (or no surviving) executor.
How — the person entitled (usually the nearest heir) petitions; the court grants LoA, generally on security.

Section 372, Indian Succession Act, 1925: an application for a succession certificate shall be made to the District Judge… setting out the particulars of the debts and securities in respect of which the certificate is applied for.

In Simple Terms: A succession certificate lets an heir of an intestate collect the dead person’s debts, deposits and shares. Probate is the court’s stamp on a will, empowering the executor named in it. Letters of administration empower an administrator where there is no executor (intestacy, or a will with no executor). Different documents, different situations.

🧩 WORKED EXAMPLE — which document?

Facts. H dies intestate; his estate is only a bank fixed deposit and some shares; his son wants to collect them.

Rule. For collecting debts and securities of an intestate, the instrument is a succession certificate (ss.370–390); probate is for a will, LoA where there is no executor.

Apply. There is no will and the property is debts/securities, so probate and LoA do not fit; the succession certificate does.

Conclusion. The son should apply to the District Judge for a succession certificate.

flowchart TD
    ROOT["Grants of representation"]:::root
    ROOT --> A["Succession certificate: debts/securities of an intestate"]:::leaf
    ROOT --> B["Probate: certifies a WILL; empowers executor"]:::leaf
    ROOT --> C["Letters of administration: no executor (intestacy)"]:::leaf
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    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
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Case Laws

Madhvi Amma Bhawani Amma v Kunjikutty Pillai Meenakshi Pillai (2000) — probate, once granted, is conclusive as to the genuineness of the will and the executor’s authority.

Powers & Duties of an Executor

A will is only a piece of paper until someone carries out its wishes — collects the assets, pays the debts, and hands the legacies to the beneficiaries. That someone is the executor, the person the testator himself chose for the job.

Who is an executor, and what are his powers and duties?

An executor is the person named in a will by the testator to administer his estate after death. (Where no executor is named, or the person died intestate, the court appoints an administrator who has broadly the same functions but derives authority from the court’s grant of Letters of Administration, not from the will.) The executor derives his authority from the will itself, confirmed by probate.

Powers of an executor (ISA provisions on administration):

to collect and take possession of the deceased’s assets;
to sue and be sued in respect of the estate;
to dispose of (sell) the property for the purposes of administration, subject to any restriction in the will;
to pay debts and to prefer creditors as the law allows; and
to assent to legacies and distribute the estate.

Duties of an executor:

to prove the will (obtain probate) and to bury/cremate the deceased suitably;
to collect the assets and prepare an inventory and, when required, render an account;
to pay the funeral expenses, debts and legacies in the correct order; and
to distribute the residue to those entitled and act with the care of a prudent person.

On the executor: he is the “legal representative of the deceased for all purposes, in whom all the property of the deceased vests” for the administration of the estate.

In Simple Terms: An executor is the person a will names to wind up the estate. He collects the assets, can sue and sell for the estate, pays the funeral, debts and legacies in order, and gives out what remains — keeping accounts and acting honestly throughout. An administrator does the same job when there is no executor.

flowchart TD
    ROOT["Executor"]:::root
    ROOT --> P["Powers"]:::leaf
    P --> P1["Collect assets; sue/be sued"]:::leaf
    P --> P2["Sell for administration"]:::leaf
    P --> P3["Pay debts; assent to legacies"]:::leaf
    ROOT --> D["Duties"]:::leaf
    D --> D1["Prove the will (probate)"]:::leaf
    D --> D2["Inventory & accounts"]:::leaf
    D --> D3["Pay funeral, debts, legacies in order; distribute residue"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
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Case Laws

Madhvi Amma Bhawani Amma v Kunjikutty Pillai Meenakshi Pillai (2000) — the executor’s title flows from the will and is confirmed by probate.

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