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-

(a) Firstly, upon the heirs, being the relatives specified in class I of the Schedule;

(b) Secondly, if there is no heir of class II then upon the heirs, being the relatives specified in

class II of the Schedule;

(c) Thirdly, if there is no heir of any of the two classes, then upon the agitates of the deceased;

and

(d) Lastly, if there is no agnate, then upon the cognates of the deceased.

Class I heirs:-

The property of a Hindu Male dying intestate would be given first to heirs within Class I. They

are:

i. Mother,

ii. Widow,

iii. Daughter,

iv. Son,

v. Widow of a predeceased son,

vi. Son of a predeceased son,

vii. Daughter of a predeceased son,

viii. Widow of a predeceased son of a predeceased son,

ix. Daughter of a predeceased son of a predeceased son,

x. Son of a predeceased son of a predeceased son,

xi. Daughter of a predeceased daughter, and

xii. Son of a predeceased daughter.

Some new heirs are added by Hindu Succession (Amendment) Act, 2005. They are:

xiii. Son of a predeceased daughter of a predeceased daughter,

xiv. Daughter of a predeceased daughter of a predeceased daughter,

xv. Daughter of a predeceased son of a predeceased daughter, and

xvi. 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.

The children born of void or voidable marriage (by effect of section 16 of HMA, 1955) are

deemed to be legitimate children and are thus entitled to participate as sharers in the

succession to the intestate.

The widow inherits simultaneously with the other heirs and in case there are more than one

widow, together they are entitled to one share which is to be divided equally amongst

them.

The widow is entitled to a share from the property of the intestate even if she remarries

after his death.

The widow of a predeceased son inherits with the other heirs. However her right (along

with the children of the predeceased son) is dependent upon the share that the predeceased

son would have been entitled to had he been alive. Also, she is excluded from the share if

she has remarried before the death of the intestate.

The daughter inherits simultaneously with the other heirs and gets the share as that of a

son. She takes the property in her individual capacity and not in the capacity of a woman’s

estate. Also, she is entitled to the property of the intestate even if she is married.

All these heirs inherit simultaneously. On failure of any such heir as specified in Class I, the

property devolves upon the enumerated heirs specified in Class II, wherein an heir in the first

entry is preferred over an heir in second category in the Class II and similarly, any heir in a

higher entry shall be preferred over an heir in a lower category.

Entry I –

a) Father.

Entry II –

a) Son’s daughter’s son.

b) Son’s daughter’s daughter.

c) Brother.

d) Sister.

Entry III –

a) Daughter’s son’s son.

b) Daughter’s son’s daughter.

c) Daughter’s daughter’s son.

d) Daughter’s daughter’s daughter.

Entry IV –

a) Brother’s son.

b) Brother’s daughter.

c) Sister’s son.

d) Sister’s daughter.

Entry V –

a) Father’s father.

b) Father’s mother.

Entry VI –

a) Father’s widow. [Step mother].

b) Brother’s widow.

Entry VII –

a) Father’s brother.

b) Father’s sister.

Entry VIII –

a) Mother’s father.

b) Mother’s mother.

Entry IX –

a) Mother’s brother.

b) Mother’s sister.

Section 11- Distribution of property among heirs in Class II of the Schedule. - 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.

This Section provides that when there is more than one heir in one entry of Class II, they shall

inherit equally.

For example, 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.

Thus according to this Section, they all share equally. It should be noted that the legislation does

not lay down any rule of discrimination between any male or female. If two heirs are enlisted in

the same entry, then irrespective of their sex, they share equally. 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.

The father in entry I includes an adoptive father. However, a father is not entitled to any interest

in the property of his illegitimate son as opposed to the mother. Nevertheless, a father is entitled

to inherit from his son born of a void or voidable marriage (under section 16). Also, a step father

in not entitled to inherit from his step son.

All brothers and sisters inherit simultaneously with the sister and other heirs in the Entry. Here

the term brother includes both full and half brother. However when there is a full brother, he is

always preferred to a half brother where, half brother means son of the same father but different

mother. Uterine brother is not entitled to share the intestate’s property. However when the

intestate and his brother are illegitimate sons of their mother, they are related to each other as

brother in this entry.

However, there is one basic distinction between the Class I and the Class II heirs. While all the

heirs in Class I inherit the property simultaneously, each of the entries in Class II constitute

distinct and separate groups of heirs. Heirs in higher entries inherit in priority, but there I no such

concept of priority among the heirs in Class I. For example, if a Hindu male dies intestate leaving

behind his widow, two sons, son of a predeceased son, widow of another predeceased son, two

daughters and son of a predeceased daughter, all of them will inherit simultaneously because all

of them are heirs in the Class I of the Schedule. However, if another Hindu male dies intestate

leaving behind his sister and his brother’s son, 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.

Classification of agnates- When a person traces his relationship to the propositus wholly through

males, he is an agnate. His sex or the sex of the propositus is immaterial. Agnates fall in three

classes: (a) descendant agnates, (b) ascendant agnates, and (c) collateral agnates.

Descendant Agnates- S, SS, SSS, SSSD, SSSS of a person are all descendant agnates. S,

SS and SSS are in class I. We are not concerned with them here. But SSSD and SSSS are

the agnates who are not included in class I or class II and with them we are concerned

here. For descendent agnates there is no limit as to degrees, howsoever remote they may

be. Thus, all descendants of SSSS through males will also be agnates. Descendants have

only degrees of descent.

Ascendant Agnates- Intestate’s F, FF, FFM, and FFF are all ascendant agnates. But F and

FF are already in Class II (in categories I and V respectively) and therefore we are not

concerned with them here. FFM and FFF are the nearest agnate descendants after F and

FF. All ascendants through males will also be ascendant agnates there being no limit of

degrees.

Collateral Agnates - Collaterals are descendants in the parallel lines. They may be on the

maternal side or they may be paternal side.

Cognates

A person is said to be a cognate of another if the two related by blood or adoption but not wholly

through males. In a cognate relationship, it does not matter as to whether there is intervention of

one or more females. So long as one female exists in the line, it becomes a cognate relationship.

Cognates:

(a) cognates who are descendants, for example, son’s daughter’s son’s son and daughter’s son’s

son’s son.

(b) cognates who are ascendants, for example, father’s mother’s father and mother’s father’s

father.

(c) cognates who are collaterals, i.e. who are related to the intestate by degrees of both ascent and

descent, for example, father’s sister’s son and mother’s brother’s son.

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. The widow, the son, the daughter and the

mother will inherit to the property. However, this does not mean that each one of them will get

1/4th of the property. The four rules given in this Section are explanatory to the extent of

understanding how much share each one will get.

1) The widows, if there is more than one, shall take together only one share and inherit that share

equally as tenants-in-common and not joint tenants.

2) When there is more than one son, each son will get a share and similarly each daughter will get

a share and mother will also get a share. Thus this is based on the Principle of Equalization.

3) If there are sons and daughters of a predeceased son or a predeceased daughter, they shall be

entitled to take together a share of the property of their father or mother as the case maybe, and

divide them equally among themselves. The family of the predeceased son would be entitled to

one part that the predeceased son would have been entitled to, had he been alive. Same thing

applies to a predeceased daughter. Thus these heirs succeed to the intestate’s property not as per

capita but as per stripe.

4) Rule 4 is in the nature of a corollary to Rule 3. It states that if there is a widow of a

predeceased son of a propositus, she will take the share of the predeceased son equally with her

sons and daughters.

Section 11- Distribution of property among heirs in Class II of the Schedule- 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. This Section provides that when there are more than one heirs in one

entry of Class II, they shall inherit equally.

Section 12-Order of succession among Agnates and Cognates- The order of succession among

agnates or cognates, as the case may be, shall be determined in accordance with the rules of

preference laid down hereunder:

Rule 1- Of two heirs, the one who has fewer or no degrees of ascent is preferred.

Rule 2- Where the number of degrees of ascent is the same or none, that heir is preferred who has

fewer or no degree of descent.

Rule 3- Where neither heir is entitled to be preferred to the other under Rule 1 or 2, they take

simultaneously.

This Section deals with the order of succession among agnates and cognates. Agnates come

within the scope of Section 8(c) whereas cognates come within the scope of Section 8(d). 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.

In both the cases, relatives (both agnates and cognates) falling in a higher subcategory shall be

preferred to a lower subcategory i.e. descendants shall be preferred over ascendants who in turn

shall be preferred over collaterals.

Section 13-Computation of degrees.-

1) For the purpose of determining the order of succession among agnates or cognates,

relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or

degrees of descent or both, as the case may be.

2) Degrees of ascent and degrees of descent shall be computed inclusive of the intestate.

3) Every generation constitutes a degree either ascending or descending.

Section 13 lays down the rules for computation of relationship between the intestate and his

agnate and cognate heirs. This relationship is traced from the intestate to the heir in terms of

degrees of relationship with the intestate as the starting point. There is no discrimination or

preference between male and female heirs.

The second rule states that the computation of the degrees of ascent and descent are to be made

inclusive of the intestate. The relationship is to be traced from the propositus on terms of degrees

with a propositus as terminus a quo, i.e. the first degree.

However, the order of succession among agnates and cognates is not determined merely by the

total number of degrees of ascent and descent. It is subject to and regulated by Section 12 of the

Act.

Example:

father’s mother’s father of the intestate- Hence there is no degree of descent but there are four

degrees of ascent represented by (i) the intestate, (ii) the intestate’s father, (iii) that father’s

mother and (iv) that mother’s father.

General rule with regard to preference and distribution of property among agnates and cognates:

Rule (i) - When the claimants are descendants, ascendants and collaterals, the descendants are

preferred over the latter two. When there are no descendants, ascendants are preferred over

collaterals. The collaterals take only in the absence of both descendants and ascendants.

Rule (ii) - When all the claimants are descendants, the one having fewer degrees of descent will

be preferred if they have the same degrees of descent, they will take simultaneously and as

between themselves will take per capita.

Rule (iii) - When all the claimants are ascendants, the one having fewer degrees of ascent will be

preferred. If they have the same degrees of ascent, they will inherit simultaneously and as

between themselves will take per capita.

Rule (iv) - When all the claimants are collaterals, 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) - Among the claimant collaterals those who have fewer degrees of ascent

(irrespective of degrees of descent) will be preferred.

Sub-Rule (b) - Among the claimant collateral when degrees of ascent are the same, the one who

has fewer degrees of descent will be preferred.

Sub-Rule (c) - Among the claimant collaterals when degrees of ascent and descent are the same,

all of them take simultaneously, and among themselves share per capita.

Position after Amendment Act

Amendment Act 2005 is an important step towards gender equality. But in many aspects the act

remained same.

1) After the amendment, daughters has an share equal to that of sons at the time of the notional

partition, just before the death of the father, and an equal share of the father's separate share.

However, the position of the mother stays the same. She, not being a member of the coparcenary,

is not getting a share at the time of the notional partition. Making daughters coparceners

decreased the shares of other Class I female heirs, such as the deceased's widow and mother,

since the coparcenary share of the deceased male from whom they inherit declined.

2) The amendment made the position of the female members of the joint family worst. With a

daughter along with the sons acquired a birthright, which she can presumably partition at any

time, the rights of other members of the joint family got diminished. The only protection women

had in the marital home was the status of being married, which carried with it the right to be

maintained, not only by the husband, but by the joint family and its assets as a whole. This

protection now eroded, to the extent that the total divisible amount got reduced.

3) Since Hindu law does not grant any rights to wives in marital property, their only chance of

getting anything was on an inheritance, as equal share with the sons and daughters, if the

marriage was subsisting on the death of the husband. On divorce, of course, even that right to

inheritance disappears and Amendment 2005 reduced the share of wives.

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.

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.e. mother, widow etc.

In general sense, 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. Our

Constitution emphasizes on gender equality. An equality is only possible if we able to provide it

to every section of society.

General Rules of Succession - Female Hindu

Under the Hindu law in operation prior to the coming into force of the Act, 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.

Divergent authorities only added to the difficulties surrounding the meaning of a term to which it

sought to give technical significance. Women were supposed to, it was held and believed, not

have power of absolute alienation of property. The restrictions imposed by the Hindu law on the

proprietary rights of women depended upon her status as a maiden, as a married woman and as a

widow. They also depended upon the source and nature of property. Thought there were some

fragmented legislation upon the subject (regard being made to the Hindu Woman’s Right to

Property Act, 1937), the settled law was still short of granting a status to woman where she could

acquire, retain and dispose off the property as similar to a Hindu male. The Hindu Succession

Act, 1956 and particularly Section 14 brought substantial change, thus, upon the aspect of a right

of a Hindu female over her property and thereby settled the conflict.

Section 15 of the Act prescribes general rules of succession in the case of female Hindus.

The property of a female Hindu dying intestate shall devolve:

1. firstly, upon the sons and daughters (including the children of any predeceased son or

daughter) and the husband;

2. secondly upon the heirs of the husband;

3. thirdly, upon the mother and father;

4. fourthly, upon the heirs of the father; and;

5. lastly, upon the heirs of the mother

However sub-Section (2), similar to the scheme of Section 14, is in the nature of an exception to

the general rule as laid in sub-Section (1). The two exceptions are, if a female dies without

leaving any issue then,

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; and any property

inherited by a female Hindu from her Husband or from her father in law shall devolve, 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, but upon the heirs of the husband.

Section 16 talks about order of succession and manner of distribution among heirs of a female

Hindu.- 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 , to the

following rules, namely:

Rule 1 - Among the heirs specified in sub-Section (1) of Section 15, those in one entry shall be

preferred to those in any succeeding entry and those including in the same entry shall take

simultaneously.

It declares that among the heirs enumerated in entries (a) to (e) of Section 15, 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.

Rule 2 - 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, 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.

It states that in case of the children of a predeceased son or daughter, they shall not take per

capita with the son and daughter of the intestate but shall take per stripes i.e. 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.

Rule 3 - The devolution of the property of the intestate on the heirs referred to in clauses (b), (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,

the mother’s or the husband’s as the case maybe, and such person had died intestate in respect

thereof immediately after the intestate’s death.

It is applicable only when succession is in terms of entry (b), (d) or (e) of Section 15(1). 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 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. Women are also becoming more economically independent. 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. Recently Law Commission Report 207

recommended amendment in S 15 of Hindu Succession Act, 1956. The amendment will basically

change the position of heirs in case female dies intestate leaving her, self acquired property.

Escheat in Hindu Law

Section 29 of the Hindu Succession Act, 1956 deals with the provisions of Escheat and according

to Giridhari Lal vs. Government of Bengal (12 MIA 448), the Privy Council held that the Crown

cannot take an estate unless it affirmatively would establish that there were no other heirs.

The Privy Council held that when the Crown would take the property as the ultimate heir, it

would take it as if it were an ordinary heir ... and have duties to perform ceremonies of the

deceased, whose lands were escheated, and also to pay the debts if any to the debtors.

The Supreme Court of India has upheld the escheat in Maharaja of Jaipur vs. Ramachandra (AIR

1968 SC 954).

Testamentary Succession:

Section 30 of the Hindu Succession Act, 1956 says that any Hindu may dispose of by will or

other testamentary disposition any property, which is capable of beings so disposed of by him or

by her, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for

the time being in force and applicable to Hindus.

It is suggested to go through class notes also.