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Succession under Hindu Law

Intestate succession is defined by Legal Dictionary as the distribution when a person dies without
leaving a valid will or testament and the heirs will take (receive the possessions) by the laws of
descent and distribution in the estate. Collectively these are called the laws of intestate
succession. In case person dies without making a will there needs to be some broadly accepted
rules upon which the property shall devolve upon those succeeding him.
Hindu Succession Act, 1956 (Position after 9-9-2005)
Amending Act 2005 was one of the steps to remove discrimination contained in S. 6 of Hindu
Succession Act, 1956.
It gave equal rights to daughters in the Hindu Mitakshara Coparcenary Property as to sons have.
It makes daughter, coparcener in joint family property. Simultaneously section 23 of the Act as
disentitles the female heir to ask for partition in respect of dwelling house wholly occupied by a
Joint Family until male heirs choose to divide their respective shares therein, was omitted by this
Amending Act. It also made women right in agricultural land equal to men.
According to the amending Act of 2005, in a Joint Hindu Family governed by the Mitakshara
Law, the daughter of a coparcener shall, also by birth become a coparcener in her own right in the
same manner as the son heir. She shall have the same rights in the coparcenary property as she
would have had if she had been a son. She shall be subject to the same liabilities and disabilities
in respect of the said coparcenary property as that of a son and any reference to a Hindu
Mitakshara Coparencer shall be deemed to include a reference to a daughter. But this provision
shall not apply to a daughter married before the commencement of the Hindu Succession
(Amendment) Act of 2005.
This provision shall not affect or invalidate any disposition or alienation including partition or
testamentary disposition of property which had taken place before 20th December, 2004.
In the matter of succession of property of a Hindu male dying intestate, the Act lay down a set of
general rules in sections 8 to 13.
Mitakshara coparcenary property shall devolve by testamentary or intestate succession
under the Act and not as survivorship.

General Rules of Succession - Male Hindu
General rules of succession in the case of males –
The property of a male Hindu dying intestate shall devolve according to the provisions of this
Chapter-

iv. (c) Thirdly. if there is no agnate.  The widow of a predeceased son inherits with the other heirs. Mother. Widow. vi. 1955) are deemed to be legitimate children and are thus entitled to participate as sharers in the succession to the intestate. They are: i. Daughter of a predeceased daughter. Daughter of a predeceased son. Son of a predeceased daughter of a predeceased daughter. if there is no heir of any of the two classes. then upon the agitates of the deceased. Widow of a predeceased son. upon the heirs.  The children born of void or voidable marriage (by effect of section 16 of HMA. ii.(a) Firstly. being the relatives specified in class II of the Schedule. Widow of a predeceased son of a predeceased son. Daughter of a predeceased son of a predeceased daughter. x. xiv. However her right (along with the children of the predeceased son) is dependent upon the share that the predeceased . Son of a predeceased son. viii. 2005. vii. Son. together they are entitled to one share which is to be divided equally amongst them. xi. Daughter. Daughter of a predeceased daughter of a predeceased daughter. xvi. xii. (b) Secondly. Some new heirs are added by Hindu Succession (Amendment) Act. Daughter of a predeceased son of a predeceased son. and (d) Lastly. xv. ix. if there is no heir of class II then upon the heirs. and Daughter of a predeceased daughter of a predeceased son  The adopted children (son or daughter) are also to be counted as heirs when succession is done. and Son of a predeceased daughter. They are: xiii.  The widow is entitled to a share from the property of the intestate even if she remarries after his death. Class I heirs:The property of a Hindu Male dying intestate would be given first to heirs within Class I. then upon the cognates of the deceased. being the relatives specified in class I of the Schedule. Son of a predeceased son of a predeceased son. iii. v.  The widow inherits simultaneously with the other heirs and in case there are more than one widow.

c) Sister’s son. any heir in a higher entry shall be preferred over an heir in a lower category. Entry VIII – a) Mother’s father. She takes the property in her individual capacity and not in the capacity of a woman’s estate. the property devolves upon the enumerated heirs specified in Class II. she is entitled to the property of the intestate even if she is married. d) Daughter’s daughter’s daughter. [Step mother]. b) Brother’s daughter. Entry III – a) Daughter’s son’s son.  The daughter inherits simultaneously with the other heirs and gets the share as that of a son. Entry VII – a) Father’s brother. Also. Entry IX – a) Mother’s brother. Entry I – a) Father. b) Father’s sister. b) Mother’s mother. wherein an heir in the first entry is preferred over an heir in second category in the Class II and similarly. All these heirs inherit simultaneously. On failure of any such heir as specified in Class I. Entry II – a) Son’s daughter’s son. d) Sister. b) Daughter’s son’s daughter. Entry V – a) Father’s father. d) Sister’s daughter.son would have been entitled to had he been alive. b) Son’s daughter’s daughter. Also. Entry VI – a) Father’s widow. c) Daughter’s daughter’s son. b) Father’s mother. . b) Brother’s widow. Entry IV – a) Brother’s son. c) Brother. she is excluded from the share if she has remarried before the death of the intestate.

but there I no such concept of priority among the heirs in Class I. Thus according to this Section. However. Also. . half brother means son of the same father but different mother. son of a predeceased son. then irrespective of their sex. there is one basic distinction between the Class I and the Class II heirs. The father in entry I includes an adoptive father. However. they are related to each other as brother in this entry. However when there is a full brother. if a Hindu male dies intestate leaving behind his widow. they all share equally. they share equally. It should be noted that the legislation does not lay down any rule of discrimination between any male or female. each of the entries in Class II constitute distinct and separate groups of heirs. they shall inherit equally. However when the intestate and his brother are illegitimate sons of their mother.The property of an intestate shall be divided between the heirs specified in any one entry in Class II of the Schedule so that they share equally. Uterine brother is not entitled to share the intestate’s property. widow of another predeceased son. all of them will inherit simultaneously because all of them are heirs in the Class I of the Schedule. All brothers and sisters inherit simultaneously with the sister and other heirs in the Entry. a step father in not entitled to inherit from his step son. a father is entitled to inherit from his son born of a void or voidable marriage (under section 16). Heirs in higher entries inherit in priority. if another Hindu male dies intestate . two daughters and son of a predeceased daughter. This Section provides that when there is more than one heir in one entry of Class II. Section 11. two sons. If two heirs are enlisted in the same entry. Here the term brother includes both full and half brother.Distribution of property among heirs in Class II of the Schedule.b) Mother’s sister. a father is not entitled to any interest in the property of his illegitimate son as opposed to the mother. However. For example. For example. he is always preferred to a half brother where. While all the heirs in Class I inherit the property simultaneously. All the heirs in each one of the entries stand aequali jura and take per capita subject to the only exception that full blood is preferred over half-blood. Entry III contains four heirs: (a) Daughter’s son’s son (b) Daughter’s son’s daughter (c) Daughter’s daughter’s son (d) Daughter’s daughter’s daughter. Nevertheless.

(b) ascendant agnates. So long as one female exists in the line. FF. for example.  Ascendant Agnates. Thus. for example. They may be on the maternal side or they may be paternal side.Collaterals are descendants in the parallel lines. We are not concerned with them here. Agnates fall in three classes: (a) descendant agnates. who are related to the intestate by degrees of both ascent and descent. son’s daughter’s son’s son and daughter’s son’s son’s son. . Cognates: (a) cognates who are descendants. The widow. SSSD. all descendants of SSSS through males will also be agnates. All ascendants through males will also be ascendant agnates there being no limit of degrees. i. For descendent agnates there is no limit as to degrees. the daughter and the mother will inherit to the property. father’s mother’s father and mother’s father’s father. S. it does not matter as to whether there is intervention of one or more females. But F and FF are already in Class II (in categories I and V respectively) and therefore we are not concerned with them here.When a person traces his relationship to the propositus wholly through males. SS. (c) cognates who are collaterals.S.  Descendant Agnates. he is an agnate.leaving behind his sister and his brother’s son.  Collateral Agnates . SS and SSS are in class I. The four rules given in this Section are explanatory to the extent of understanding how much share each one will get. this does not mean that each one of them will get 1/4th of the property.e. and (c) collateral agnates. for example. The object of Section 10 is to deal with the amount of shares each person will be entitled to when there are more than one to inherit simultaneously. father’s sister’s son and mother’s brother’s son. Descendants have only degrees of descent. and FFF are all ascendant agnates. His sex or the sex of the propositus is immaterial. Classification of agnates. However. howsoever remote they may be.Intestate’s F. SSS. But SSSD and SSSS are the agnates who are not included in class I or class II and with them we are concerned here. (b) cognates who are ascendants. the son. In a cognate relationship. SSSS of a person are all descendant agnates. it becomes a cognate relationship. FFM and FFF are the nearest agnate descendants after F and FF. FFM. Cognates A person is said to be a cognate of another if the two related by blood or adoption but not wholly through males. the sister being an heir in Entry II of Class II will get preference over his brother’s son who is an heir in Entry IV of Class.

Rule 3. each son will get a share and similarly each daughter will get a share and mother will also get a share.Where neither heir is entitled to be preferred to the other under Rule 1 or 2. Section 12-Order of succession among Agnates and Cognates. Rule 2. 2) When there is more than one son. they shall inherit equally.The property of an intestate shall be divided between the heirs specified in any one entry in Class II of the Schedule so that they share equally. the one who has fewer or no degrees of ascent is preferred. that heir is preferred who has fewer or no degree of descent. descendants shall be preferred over ascendants who in turn shall be preferred over collaterals. This Section deals with the order of succession among agnates and cognates. 4) Rule 4 is in the nature of a corollary to Rule 3. as the case may be. they take simultaneously. relatives (both agnates and cognates) falling in a higher subcategory shall be preferred to a lower subcategory i. and divide them equally among themselves. The question of succession of cognates come only when there are no cognates and the question of succession of agnates and cognates come only when there are no heirs in Class I and Class II. Agnates come within the scope of Section 8(c) whereas cognates come within the scope of Section 8(d). she will take the share of the predeceased son equally with her sons and daughters.e.Distribution of property among heirs in Class II of the Schedule. shall be determined in accordance with the rules of preference laid down hereunder: Rule 1. Thus this is based on the Principle of Equalization.1) The widows. they shall be entitled to take together a share of the property of their father or mother as the case maybe. Thus these heirs succeed to the intestate’s property not as per capita but as per stripe. Same thing applies to a predeceased daughter. Section 13-Computation of degrees.The order of succession among agnates or cognates. This Section provides that when there are more than one heirs in one entry of Class II. In both the cases.Of two heirs. 3) If there are sons and daughters of a predeceased son or a predeceased daughter. if there is more than one. had he been alive.Where the number of degrees of ascent is the same or none. shall take together only one share and inherit that share equally as tenants-in-common and not joint tenants. It states that if there is a widow of a predeceased son of a propositus. Section 11. The family of the predeceased son would be entitled to one part that the predeceased son would have been entitled to.- .

The second rule states that the computation of the degrees of ascent and descent are to be made inclusive of the intestate.Among the claimant collaterals those who have fewer degrees of ascent (irrespective of degrees of descent) will be preferred. . the one having fewer degrees of descent will be preferred if they have the same degrees of descent. This relationship is traced from the intestate to the heir in terms of degrees of relationship with the intestate as the starting point. Rule (iv) . General rule with regard to preference and distribution of property among agnates and cognates: Rule (i) . the order of succession among agnates and cognates is not determined merely by the total number of degrees of ascent and descent.When all the claimants are collaterals.Among the claimant collateral when degrees of ascent are the same.When all the claimants are descendants.e.1) For the purpose of determining the order of succession among agnates or cognates. 3) Every generation constitutes a degree either ascending or descending. (iii) that father’s mother and (iv) that mother’s father. The relationship is to be traced from the propositus on terms of degrees with a propositus as terminus a quo. ascendants are preferred over collaterals. the descendants are preferred over the latter two. (ii) the intestate’s father. When there are no descendants. Sub-Rule (b) . as the case may be. 2) Degrees of ascent and degrees of descent shall be computed inclusive of the intestate. Rule (ii) . Example: father’s mother’s father of the intestate. The collaterals take only in the absence of both descendants and ascendants. Section 13 lays down the rules for computation of relationship between the intestate and his agnate and cognate heirs. the first degree.When all the claimants are ascendants. Rule (iii) . they will inherit simultaneously and as between themselves will take per capita. the rules of preference will be (if should be kept in mind that collaterals have both degrees of ascent and degrees of descent) as under: Sub-Rule (a) . It is subject to and regulated by Section 12 of the Act. the one having fewer degrees of ascent will be preferred. If they have the same degrees of ascent. However.When the claimants are descendants. they will take simultaneously and as between themselves will take per capita.Hence there is no degree of descent but there are four degrees of ascent represented by (i) the intestate. relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or degrees of descent or both. the one who has fewer degrees of descent will be preferred. There is no discrimination or preference between male and female heirs. ascendants and collaterals. i.

the rights of other members of the joint family got diminished. . which she can presumably partition at any time. Making daughters coparceners decreased the shares of other Class I female heirs. The Preamble to the Amending Act indicated the objective as the removal of discrimination against daughters inherent in the Mitakshara Coparcenary but this discrimination need to be removed against every woman i. The only protection women had in the marital home was the status of being married. to the extent that the total divisible amount got reduced. 4) The general exemption granted in favor of laws of the Scheduled Tribes that they are not bound by the provisions of the Act seeks to perpetuate inequality with respect to females in these tribes wherein the exploitation of the female class is highest and unchecked. since the coparcenary share of the deceased male from whom they inherit declined. their only chance of getting anything was on an inheritance. widow etc. On divorce. 3) Since Hindu law does not grant any rights to wives in marital property. just before the death of the father. This protection now eroded. However.e. if the marriage was subsisting on the death of the husband. With a daughter along with the sons acquired a birthright. An equality is only possible if we able to provide it to every section of society. Our Constitution emphasizes on gender equality. which carried with it the right to be maintained. all of them take simultaneously. mother.Among the claimant collaterals when degrees of ascent and descent are the same. In general sense. 1) After the amendment. succession represent the view of society at large as to what ought to be the normal course of succession in the readjustment of property after the death of a citizen. She. and among themselves share per capita. and an equal share of the father's separate share. of course. 2) The amendment made the position of the female members of the joint family worst. daughters has an share equal to that of sons at the time of the notional partition. as equal share with the sons and daughters. such as the deceased's widow and mother. But in many aspects the act remained same. is not getting a share at the time of the notional partition. not only by the husband. even that right to inheritance disappears and Amendment 2005 reduced the share of wives. the position of the mother stays the same. not being a member of the coparcenary. but by the joint family and its assets as a whole.Sub-Rule (c) . Position after Amendment Act Amendment Act 2005 is an important step towards gender equality.

not have power of absolute alienation of property. similar to the scheme of Section 14. Section 16 talks about order of succession and manner of distribution among heirs of a female Hindu. The two exceptions are.General Rules of Succession . 1956 and particularly Section 14 brought substantial change. upon the aspect of a right of a Hindu female over her property and thereby settled the conflict. fourthly. thus. The restrictions imposed by the Hindu law on the proprietary rights of women depended upon her status as a maiden. 4. secondly upon the heirs of the husband. but upon the heirs of the husband. in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon their referred to above. firstly. 1937). and any property inherited by a female Hindu from her Husband or from her father in law shall devolve. if a female dies without leaving any issue then. lastly. is in the nature of an exception to the general rule as laid in sub-Section (1).The order of succession among the heirs referred to in Section 15 shall be and the distribution of the intestate’s property among those heirs shall take place according . 3. If any property is inherited by a female Hindu from her father or Mother it shall devolve in the absence of any son of daughter of the deceased (including the children of any predeceased son or daughter) not upon the heirs referred to above but upon the heirs of the father. retain and dispose off the property as similar to a Hindu male. thirdly.Female Hindu Under the Hindu law in operation prior to the coming into force of the Act. the settled law was still short of granting a status to woman where she could acquire. 5. They also depended upon the source and nature of property. upon the sons and daughters (including the children of any predeceased son or daughter) and the husband. a woman’s ownership of property was hedged in by certain delimitations on her right of disposal and also on her testamentary power in respect of that property. upon the heirs of the father. Women were supposed to. Thought there were some fragmented legislation upon the subject (regard being made to the Hindu Woman’s Right to Property Act. The Hindu Succession Act. and. it was held and believed.. upon the heirs of the mother However sub-Section (2). namely: . Section 15 of the Act prescribes general rules of succession in the case of female Hindus. to the following rules. Divergent authorities only added to the difficulties surrounding the meaning of a term to which it sought to give technical significance. 2. upon the mother and father. as a married woman and as a widow. The property of a female Hindu dying intestate shall devolve: 1.

Among the heirs specified in sub-Section (1) of Section 15.If any son or daughter of the intestate had predeceased the intestate leaving his or her own children alive at the time of the intestate’s death. 1956. Rule 3 . (d) and (e) of sub-Section (1) and in sub-Section (2) to Section 15 shall be in the same order and according to the same rules as would have applied if the property would have been the father’s. Recently Law Commission Report 207 recommended amendment in S 15 of Hindu Succession Act. It states that in case of the children of a predeceased son or daughter. The joint family system in our country has slowly been eroded and an increasing number of nuclear and semi-nuclear families have replaced the traditional Mitakshara Hindu joint family system. It declares that among the heirs enumerated in entries (a) to (e) of Section 15. With the growth of the nuclear family a married woman dependency on her natal family and continued closeness to it is much greater today even if it was not so earlier. Rule 2 .e. they shall not take per capita with the son and daughter of the intestate but shall take per stripes i. This rule 3 is to be invoked when under rule 1 the heirs of the husband or the father or the mother are to be ascertained for purpose of distribution of property. the mother’s or the husband’s as the case maybe. (d) or (e) of Section 15(1). . the children and the predeceased son or daughter shall succeed to the property of the intestate as if the predeceased son or daughter was alive at the time of inheritance.The devolution of the property of the intestate on the heirs referred to in clauses (b).Rule 1 . self acquired property. It is applicable only when succession is in terms of entry (b). the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate’s death. those heirs referred to in prior entry are to be preferred to those in any subsequent entry and those included in the same entry are to succeed simultaneously. and such person had died intestate in respect thereof immediately after the intestate’s death. those in one entry shall be preferred to those in any succeeding entry and those including in the same entry shall take simultaneously. Women are also becoming more economically independent. The amendment will basically change the position of heirs in case female dies intestate leaving her.

1956 says that any Hindu may dispose of by will or other testamentary disposition any property. 1956 deals with the provisions of Escheat and according to Giridhari Lal vs. The Supreme Court of India has upheld the escheat in Maharaja of Jaipur vs. which is capable of beings so disposed of by him or by her. The Privy Council held that when the Crown would take the property as the ultimate heir. 1925. or any other law for the time being in force and applicable to Hindus.. Testamentary Succession: Section 30 of the Hindu Succession Act. in accordance with the provisions of the Indian Succession Act. Government of Bengal (12 MIA 448).. it would take it as if it were an ordinary heir . and have duties to perform ceremonies of the deceased. and also to pay the debts if any to the debtors. It is suggested to go through class notes also. Ramachandra (AIR 1968 SC 954). whose lands were escheated.Escheat in Hindu Law Section 29 of the Hindu Succession Act. the Privy Council held that the Crown cannot take an estate unless it affirmatively would establish that there were no other heirs. .