Introduction

The oxford dictionary of law defines succession as the law and procedures under which

beneficiaries becomes entitled to property under a testator’s will or on intestacy. It defines

intestacy as the state in which a person dies without having made a will disposing of all his

property. A total intestacy occurs when the deceased leaves no will at all, a will that only

appoints executors but does not dispose of any property, or a will that is invalid (e.g. because

a testator lacked testamentary capacity).

The law dealing with intestate and testamentary succession in India are not uniform. A

variety of different laws are in vogue and their application depends on multiple factors like

the religion or tribe of the parties, domicile, community, sect in the community, marital status

of the parties, religion of the spouse, and the type of the marriage the parties might have

undergone. Before the advent of British rule, the major laws of inheritance in India had either

their roots in religion or were deeply influenced by personal laws which owed their allegiance

to religion and custom. Muslim followed the Muslim law; Hindus were governed by the

Shastric and the customary law depending upon the region and the specific school or

community a particular family adhered to, thus displaying a large variation. The Parsis had

their own customary law. Maximum diversity prevailed in the case of Indian Christians.

Following the advent of the British, two major Christian communities came into being in

India – the East Indian Christians, that followed the European customs and the native

Christians, who were either converts or descendants of the converts from the non-Christian

communities mainly the Hindus and the Muslims, and followed their distinct customary laws

which were also given judicial recognition.

Sir Henry Maine enacted the Indian Succession Act in 1865. Though this act was intended to

be general law of succession for all Indians, it failed in its attempt to bring in the desired

uniformity due to following reasons:

It incorporated the principles of Roman and English laws that were foreign

not only in their contents but also totally unsuited to the Indian cultural and

religious environment.

The act recognised a woman as an absolute owner of the property and

preferred her to male collaterals. It did not discriminate between agnates and

cognates and even conferred succession rights on daughters, treating them at

par with sons. These provisions were totally different from the laws

governing the Hindus, Muslims and Parsis.

It did not recognise the concept of joint family property and consequently no

right by birth was granted to the son in the uniform scheme laid down under

the act. This total negation of the superiority of males struck at the root of

the son-centred economy that Indian succession laws then portrayed.

However, this act of 1865 formed part of Indian Succession Act of 1925 without a single

change.

Under Hindu law, the property that a person may own, or can have an interest in, can be

categorised into two – separate property and joint family property. The law relating to joint

family property is governed by the Hindu joint family system that is unique to Hindus and

has no parallel anywhere in the world. With respect to separate property, a predominant

section of Hindus is governed by the general scheme of succession as laid down under the

Hindu Succession Act 1956.

The Hindu Succession Act came into force on 17 June 1956, with the basic objective of

providing a comprehensive and uniform scheme of intestate succession for Hindus. Prior to

the enactment of this act, different religious communities were governed by different

succession laws, and within the Hindu community itself, there was a wide divergence with

respect to application of inheritance laws. There were three broad categories, besides the co-

existence of a number of sub-communities. The Mitakshara law of inheritance governed

those Hindus who were subject to the Mitakshara law and those following the dayabhaga law,

were subject to dayabhaga law of inheritance. In addition, Hindus adhering to the matriarchal

system and a number of tribal communities following Hindu religion, were following their

own distinct rules of succession.

Succession to the Property of a Male Intestate

Succession is of two types:

(i) Testamentary succession; and

(ii) Intestate succession.

Testamentary succession

Where succession is governed by a testament or a will, it is called testamentary succession.

Under Hindu law, a Hindu male or female has the capability to make a will of his/her

property, including of a share in the undivided Mitakshara coparcenary, in favour of anyone.

In such cases, the property will devolve on their death, in accordance with the distribution

that they effect under this will, and not according to laws of inheritance. The only

requirement is that the will should be valid and capable of taking effect in law. Where the

will is not valid, or it cannot take effect due to any reason, the property will devolve as per

the laws of inheritance.

Intestate succession

Where a person dies, leaving behind some property, but no will or testament capable of

taking law effect in law, his property will be distributed among his legal heirs in accordance

with the laws of inheritance or of intestate succession. All family laws dealing with

succession lay down a scheme of inheritance that is applicable in case a person dies leaving

behind property but no instruction with respect to its distribution after his death. The person

who dies without making a will is called an intestate; those who, in accordance with the

scheme of inheritance, are entitled to get a share out of his property are called his heirs and

the whole process is called intestate succession.

Property subject to the rules of Intestate Succession

For the application of laws of inheritance or those of intestate succession, the first and

foremost condition is that the property of the deceased should not have been disposed of by

him under a will. With respect to the character of the property, section 8 of Hindu Succession

Act 1956, which provides a scheme for intestate succession, applies to the following

properties of male Hindu:

Separate Property or Self-acquisitions

This would include the property that the deceased might have earned, i.e., his salary or a

share in profits, or what he may have received through a gift or will, or through inheritance

from any relative, or received by way of a prize or a lottery. It is irrespective of the fact that

at the time of the acquisition of the property or at the time of his death, he was an undivided

member of a Mitakshara coparcenary, as even a coparcener is empowered to hold separate

properties.

Undivided Share of a Male Hindu in the Dayabhaga Joint Hindu Family

Property

The doctrine of survivorship has no applicability over this undivided share and it goes in

accordance with the provisions of this act, on the death of its owner.

Property held by a Sole Surviving Coparcener

The undivided share of a coparcener in a Mitakshara coparcenary, does not go by intestate

succession. But where only one coparcener is left, he would be called a sole surviving

coparcener, and on his death, the property will go by intestate succession, as if it was the

separate property of the coparcener.

Share obtained on partition

Where a partition of a coparcenary property takes place, each divided coparcener holds his

share allocated to him on partition, as his exclusive property. If he has male issues, the

character of the property is again coparcenary property with respect to the male issues. But in

their absence, on his death, this property that he had obtained on partition will be governed by

the rules of intestate succession and not by survivorship.

Undivided share in Mitakshara Coparcenary

Where a Hindu male dies as an undivided member of a Mitakshara coparcenary and is

survived by any of his class 1 heirs, besides his son, son of a predeceased son or a son of a

predeceased son of a son, his undivided share will go by intestate succession and not by

doctrine of survivorship.

General rules of succession in case of males

Section 8 of the Hindu Succession Act, 1956 lays down the provision relating general rules of

succession in case of males. It follows as such:

The property of a male Hindu dying intestate shall devolve according to the provisions of this

chapter –

1. Firstly, upon the heirs, being the relatives specified in class I of the schedule;

2. Secondly, if there is no heirs of class I, then upon the heirs, being the

relatives specified in class II of the schedule;

3. Thirdly, if there is no heir of any of the two classes, then upon the agnates of

the deceased; and

4. Lastly, if there is no agnate, then upon the cognates of the deceased.

The heirs of a male Hindu are divided into four categories, namely:

(i) Class-I;

(ii) Class-II;

(iii) Class-III (Agnates); and

(iv) Class-IV (Cognates)

Presently, heirs are included on the basis of natural love and affection, or nearness in

relationship and include blood relations as well as those female relations who are introduced

in the family by marriage to its male members.

Rules for Devolution of Property

On the death of the intestate, the property devolves in the first instance, on the class-I heirs.

As long as even a single class-I heir is present, the property will not go to the heirs under the

class-II category. Class-I category has twelve heirs, eight of them are females and four are

males. After the amendment in 2005 four new heirs have been introduced, making it a total of

11 female heirs and 5 male heirs. So on paper, the scheme appears to be titled in favour of

women. When none of the class-I heirs is present, the property would pass to the class-II

heirs. This category comprises nine separate entries, the prior excluding the later, and besides

the first, which has a lone heir, i.e., the father, the rest contain multiple heirs. In each entry,

all these heirs take the property in equal shares. In the absence of the heirs in class-II

category, which comprises all blood relatives of the intestate, related to him through a whole

male chain relatives. These heirs covered under the expression ‘agnates’, take the property in

accordance with the rules specified in this act. Where none of the agnates is present, the

property goes to the rest of the blood relatives of the intestate, called the cognates. It is

noteworthy here that the act does not pull stop as far as the heirs are concerned. In the

absence of near relatives, a person would be eligible to inherit the property of the intestate, if

he can trace his/her blood to him, howsoever distant he/she may be. Prior to 1956, relatives

beyond fourteen degrees (inclusive), of the intestate, could not succeed, but under this Act,

there is no limitation on the number of degrees an heir may be removed from the intestate.

Class-I Heirs

As aforesaid, this category presently includes eleven females and five males. All of them

inherit simultaneously and the presence of any one of them will prevent the property from

going to the class-II category. All class-I heirs take the property absolutely and exclusively,

as their separate property, and no person can claim a right by birth in this inherited property.

Once the property vests in an heir, he/she cannot be divested of this property subsequently,

by their remarriage or conversion etc. these heirs are as follows:

Mother

Widow

Daughter

Daughter of a predeceased son

Widow of a predeceased son

Daughter of a predeceased daughter

Daughter of a predeceased son of a predeceased son

Widow of a predeceased son of a predeceased son

Son

Son of a predeceased son

Son of a predeceased son of a predeceased son

Son of a predeceased daughter

Daughter of a predeceased daughter of a predeceased daughter

Son of a predeceased daughter of a predeceased daughter

Daughter of a predeceased daughter of a predeceased son

Daughter of a predeceased son of a predeceased daughter

Mother:

The expression ‘mother’ includes a biological as well as an adoptive mother, but it does not

include a step-mother. If a biological mother gives her son in adoption, she ceases to be his

mother, and would not be entitled to inherit from him on his death. Where a man having a

plurality of wives (all married prior to 1955), adopts a child, the senior-most of his wives

would be the adoptive mother of the child, having mutual rights of inheritance, while the

others would be related to him as his step-mothers.

Widow:

The widow of an intestate takes a share that is equal to the share of a son. If there is more

than one widow (provided they were party to a valid marriage), all of them collectively, take

one share that is equal to the share of the son and divide it equally among them, taking it as

tenants-in-common. Under the Mitakshara law, they inherited together, but took the property

as joint tenants, having a right of survivorship. Presently, each of them takes her share as an

absolute owner, with full powers of enjoyment and disposal over it. Inheriting along with the

son and daughter, she takes a share equal to that of the daughter and son.

Daughter:

The term daughter includes a natural born or an adopted daughter, but does not include a

step-daughter or an illegitimate daughter. The daughter born of a void marriage or a voidable

marriage, where a decree of nullity has been obtained from the court, is a legitimate child and

would inherit the property of her father. Under the act, there is no distinction between the

rights of a married and an unmarried daughter. Under the Mitakshara law, an unmarried

daughter was preferred to a married daughter. Presently, there is no discrimination.

Sons and Daughters of a predeceased Son:

Where a son of an intestate dies during the life time of the intestate, his children, natural born,

but legitimate or adopted, would be entitled to represent him, i.e., to step into his shoes, and

they would take such a share along with their mother (if she is also entitled to inherit), that

would have come to their father, and would divide it equally amongst them.

Son and Daughter of a predeceased Daughter:

On the death of a legitimate natural born or adopted daughter of the intestate, during his

lifetime, the son and daughter (again legitimate or adopted), would represent their mother,

take a share that would have been allotted to her if she had been alive and divide equally in

among them. The marital status of the children and their character would not have any

adverse effect on their succession rights.

Son and Daughter of a Predeceased Son of a Predeceased Son:

In case where, during the lifetime of the intestate, his son, and a son of such son, dies, leaving

behind children, both of such son and daughter are his class-I heirs and succeed to his

property. The relationship to the intestate should be the natural born legitimate or adopted

relationship.

Widow of a Predeceased Son:

The widow of a predeceased son, in order to inherit the property of her deceased father-in-

law, must be a widow on the date the succession opens, i.e., the date of the death of the

intestate. If she remarries before the succession opens, she would no longer be the widow of

his son, nor will be a member of his family, and will be disqualified from inheriting his

property.

Widow of a Predeceased Son of a Predeceased Son:

Her relation with the intestate should be through adoption or natural birth of her husband, but

it must be through a legitimate connection. Her chastity and financial situation is irrelevant,

but her remarriage before the opening of the succession would operate as a disqualification

on her rights of succession.

Son:

The expression ‘son’ includes a natural born son or an adopted son. It does not include a step-

son or an illegitimate son. A son born of a void marriage or a voidable marriage that is

annulled by a decree of the court is a legitimate child and would inherit the property of his

father along with his other descendants.

Son and Daughters of a predeceased daughter of a predeceased daughter:

The relationship of the intestate with the daughter and her children as well her grand children

should be through legitimate kinship or through adoption.

Daughter of a predeceased son of a predeceased daughter:

Where a daughter and her son die during the life time of the intestate, the daughter of such

son is a class I heir. Till September 2005 such daughter was a class-II heir placed in entry IV.

Ironically while this great grand daughter has been made a class-I heir, her brother is still a

class II heir.

Daughter of a predeceased daughter of a predeceased son:

Where a son and his daughter die during the life time of the intestate, the daughter of such

son’s daughter is a class I heir.

Rules for distribution of the property

1. The share of each son and daughter and of the mother is equal.

2. The widow of the intestate takes one share, and if there is more than one widow, all of

them collectively, will take one share, i.e. a share equal to the share of the son, and

will divide it equally amongst them.

3. A predeceased son, who is survived by a son, daughter or a widow, is to be allocated a

share equal to the share of a living son.

4. Out of such share allocated to the branch of this predeceased son, his widow (or

widows together) and each living son and daughter will take equal portions with

respect to each other and the branch of any predeceased son will also get an equal

portion.

5. The rules applicable to the branch of a predeceased son of a predeceased son, are the

same, viz, the sons, daughters and the widow or (widows together), will get equal

portions.

6. A predeceased daughter, who is survived by a son or a daughter, is to be allotted a

share equal to that of a living daughter.

7. Such share will be taken equally by the sons and daughters of the predeceased

daughter.

Class-II Heirs

So long as a single heir from the class I category is present, the property does not pass to

the class-II category. This category has 23 heirs, and like the class-I category, female

heirs outnumber the male heirs here.

These heirs and their sub-categories are as follows:

Father

(1) Son’s daughter’s son

(2) Son’s daughter’s daughter (now also placed in class-I category)

(3) Brother

(4) Sister

(1) Daughter’s son’s son

(2) Daughter’s son’s daughter (now also placed in class-I category)

(3) Daughter’s daughter’s son (now also placed in class-I category)

(4) Daughter’s daughter’s daughter (now also placed in class-I category)

(1) Brother’s son

(2) Sister’s son

(3) Brother’s daughter

(4) Sister’s daughter

Father’s father; Father’s mother

Father’s widow; Brother’s widow

Father’s brother; Father’s sister

Mother’s father; Mother’s mother

Mother’s brother; Mother’s sister

The term ‘brother and sister’ here, does not include a reference to a brother or sister by

uterine blood.

Class-III Heirs (Agnates)

An agnate is a person who was related to the intestate through male relative only. An agnate

himself/herself can be a male or a female, as it is sex of the line of relatives, and not the sex

of the heir, that is material. Agnates inherit only when none of the class-I and class-II heirs

are present. Agnates can be direct ascendants, direct descendants, or collaterals. There is no

limitation on the number of degrees an agnate may be removed from the intestate. If the

blood can be traced to the intestate and a male relative chain is established the agnate will

inherit.

Rules of Preference among General Agnates:

1. Each generation is called a degree.

2. For the computation of degrees, the stating or the first degree, is the intestate

himself.

3. Degrees of ascent mean in the ancestral or upwards direction.

4. Degrees of decent mean in the descendant or downwards direction.

5. Where an heir has both ascent and descent degrees, each of them has to be seen

separately and not cumulatively.

6. An agnate, who has only descent degrees, is preferred over the one who has only

ascent degrees.

7. Where two agnates have ascent and descent degrees, the one with fewer ascent

degrees will be preferred.

Cognates

The unspecified broad category of cognates includes the rest of the heirs of the intestate. A

cognate is a relative who was related to the intestate through a chain of mixed relatives, in

terms of sex. It is not a whole male chain, as even if a single female intervenes, it will

become a cognatic chain.

The rules for computation of degrees and calculation of degrees of ascent and descent and the

order of preference among cognates, is identical to the one, in case of agnates. Cognates

inherit when none of the class-I or class-II heirs or the entire category of agnates is present.

General Rules of Succession in Case of Females Hindus

Section 15 of the Hindu Succession Act, 1956 lays down the provision relating to the general

rules of succession in case of females. They follow as such:

(1) The property of a female Hindu dying intestate shall devolve according to the rules set

out in section 16 –

(a) Firstly, upon the sons and daughters (including the children of any pre-deceased

son or daughter) and the husband;

(b) Secondly, upon the heirs of the husband;

(c) Thirdly, upon the mother and father;

(d) Fourthly, upon the heirs of the father; and

(e) Lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub-section (1), -

(a) Any property inherited by a female Hindu from her father or mother shall devolve,

in the absence of any son or daughter of the deceased (including the children of

any pre-deceased son or daughter) not upon the other heirs referred to in sub-

section (1) in the order specified therein, but upon the heirs of the father; and

(b) 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 pre-deceased son or daughter) not upon the other

heirs referred to in sub-section (1) in the order specified therein, but upon the heirs

of the husband.

Order of Succession and Manner of Distribution among

Heirs of a Female Hindu

Section 16 of the Hindu Succession Act, 1956 lays down the order of succession and manner

of distribution among heirs of a female Hindu. It follows as such-

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.

Rule 2 – if any son or daughter of the intestate had pre-deceased the intestate leaving his or

her own children alive at the time of the time of the intestate’s death, the children of such son

or daughter shall take between them the share which son or daughter would have taken if

living at the intestate’s death.

Rule 3 – the devolution of the property of the intestate on the heir referred to in clauses (b),

(d) and (e) of sub-section (1) and in sub-section (2) of section 15 shall be in the same order

and according to the same rules as would have applied if the property had been the father’s or

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

respect thereof immediately after the intestate’s death.

Conclusion

Hence by the above discussion we can conclude that there are two different modes governing

general rules of succession i.e. general rules of succession for male and general rules of

succession for females. Prior to 2005 women were at back foot and were not given rights of

succession. This provision and amendment giving right to equality under article 14 of the

constitution of the India is totally new and it took centuries to come up to here. The general

rules of succession in among male is based on classification of heir in four categories basing

on the proximity of nearness. As far as general rules of succession from female are concerned

then it goes priority wise starting from son and daughter and lasting upon the heirs of the

mother.

Table of Contents

Topic Pg. No.

Introduction 01-02

Succession to the property (male) 03

Property subject to the rules of intestate succession 04-05

General rules of succession (male) 06

Rules for devolution of property 07

Class-I Heirs 08-11

Rules for devolution of property 2 12

Class-II Heirs 13

Class-III Heirs (agnates) 14

Cognates 15

General rules of succession (females) 16

Order of succession and manner of distribution (female) 17

Conclusion 18

Bibliography

Books:

Family law lectures, family II, second edition, P.P. Saxena, Lexis Nexis

Butterwoths Wadhwa

Dictionary:

Oxford dictionary of law, Indian Edition, Oxford University Press

Journals:

Hindu Law Journal

All India Reporters

Website:

www.indianlawcases.com

www.nrilegalservices.com

www.tax4india.com

www.legallight.in