Inheritance

Unit V
5. Inheritance
5.1. Hindus
5.1.1. Historical perspective of traditional Hindu law as a background to the study of Hindu Succession Act 1956.
5.1.2 Succession to property of a Hindu male dying intestate under the provisions of Hindu Succession Act 1956.
5.1.3 Devolution of interest in Mitakshara coparcenary with reference to the provisions of Hindu Succession Act 1956.
5.1.4 Succession to property of Hindu female dying intestate under the Hindu Succession Act 1956.
5.1.5 Disqualification relating to succession
5.1.6 General rules of succession
5.1.7 Marumakkattayam and Aliyasantana laws governing people living in Thiruvanadapuram, Cochin and other districts of
Malabar and South Kanara.
5.2. General rules of succession and exclusion from succession.
5.2.1 Classification of heirs under Hanafi and Ithna Ashria schools and their shares and distribution of property.”
5.3. Christians, Parsis and Jews
Hindu Laws before 1955
• Prior to commencement of Hindu Succession Act,1956 the intestate succession among Hindus was mostly governed by
Yagnavalkya Smriti and Principles of Vignesvara, Jimuthavahana, etc.
• Hindus were governed by property laws which had no coherence and varied from region to region and in some cases
within the same region, from caste to caste.
• Mitakshara School of succession which was prevalent in most of Northern India believed in the exclusive domain of
male heirs
• On the other hand, Dayabhaga School did not recognize inheritance rights by birth, and both sons and daughters did
not have rights to the property during the father’s lifetime
• At the other extreme was the Marumakkattayam law, prevalent in Kerala which traced the lineage of succession
through the female line
• Hindus lived their lives based on the guidelines and concepts given in the Vedas which later evolved into rules followed
by the people and enforced by the kings
• Different sources: Shrutis, Smritis, Commentaries, Customs, etc.
• Lack of uniformity, conflicts of laws
• Lack of clarity
• Gender biased - status of women, their economic interests
Reforming the Hindu Laws
• Though the course of our independence movement, the need for social and political reforms were acutely felt; this
included codifying and modifying these Hindu laws
• According a Hindu Code bill was prepared by our first Law Minister, Dr. B. R. Ambedkar; however, due to the opposition
within the Cabinet from the conservative members, this bill could not muster the needed support
• Instead, four Acts were adopted namely: Hindu Marriage Act 1955, Hindu Adoption and Maintenance Act 1956, Hindu
Minority and Guardianship Act 1956, and Hindu Succession Act 1956
• Jawahar Lal Nehru and Dr. B. R. Ambedkar championed the cause of women's right to inherit property and despite stiff
resistance from orthodox sections of Hindus, the Hindu Succession Act was enacted and came into force on 17th June
1956.
• Many changed were brought that gave women greater rights, but they were still denied the important coparcenary
rights
• Subsequently, many of the States enacted their own laws of division of ancestral property.
• Kerala Model: The concept of coparcenary was abolished and according to Kerala Joint Family System (Abolition) Act,
1975, the heirs (male and female) do not acquire property by birth but only hold it as tenants as if a partition has taken
place.
• Andhra Pradesh (1986), Tamil Nadu (1989), Karnataka (1994) and Maharashtra (1994) also enacted laws where
daughters were granted “coparcener” rights or a claim on ancestral property by birth as the sons.
• In 2000, the 174th report of the 15th Law Commission suggested amendments to correct the discrimination against
women, and this report forms the basis of the bill which was enacted as Amendment Act of 2005 in the Hindu
Succession Act.
Application of these reformed Hindu Laws
• A precise definition of Hinduism does not exist. Hence, it is impossible to define fixed criteria for determining
who is a Hindu
• So, a negative definition of 'who is not a Hindu' is used
• Further, several religions have been born in India that follow the same customs and practices
• So, it cannot be said that Hindu Law can be applied only to people who are Hindus by religion
• The following people are ‘Hindus’ with respect to application of Hindu Laws:
1. Hindu by Religion - A person who is Hindu, Jain, Buddhist, or Sikh by religion. In Sastri Yagnapurushadji v.
Muldas Bhuradas Vaishya AIR 1966 SC 1119 , the Supreme Court held that various subsects of Hindus such as
Swaminarayan, Satsangis, Arya Samajis are also Hindus by religion because they follow the same basic concept
of Hindu Philosophy. Converts and Reconverts are also Hindus. Supreme Court, in the case of Peerumal v.
Poonuswami AIR 1971 SSC 2352, has held that a person can be a Hindu if after expressing the intention of
becoming a Hindu, follows the customs of the caste, tribe, or community, and the community accepts him. In
Mohandas v. Dewaswon Board (1975), Kerala HC has held that a mere declaration and actions are enough for
becoming a Hindu.
2. Hindu by Birth - A child who is born of Hindu parents. If only one parent is a Hindu, the child can be a Hindu if
s/he has been raised as a Hindu and follows Hindu religion with bona fide intentions. In Sapna Jacob v. State of
Kerala, Kerala HC, the child of Hindu SC mother and Christian father was held to be a Christian.
3. Persons who are not Muslim, Christian, Jew, or Parsee by religion.
4. Persons who are not governed by any other religious law will be governed by Hindu Law.
 Hindu Succession Act - Ss. 1 & 2
S.1. Short title and extent.
(1) This Act may be called the Hindu Succession Act, 1956.
(2) It extends to the whole of India.

S.2. Application of Act.

(1) This Act applies—
(a) to any person, who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo,
Prarthana or Arya Samaj;
(b) to any person who is a Buddhist, Jaina or Sikh by religion; and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been
governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been
passed.
Explanation.—The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:—
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of
the tribe, community, group or family to which such parent belongs or belonged;
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within
the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise
directs.
(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is,
Act not to apply to certain Hindus
• Goa, Daman and Diu - Portuguese Civil Code, 1867 is applicable
• ‘Renouncants’ of Puducherry - French Civil Code, 1804 is applicable
• Any members of any Scheduled Tribe unless there is a Central Government
notification to that effect
• Act not to apply to certain properties as per S. 5:
• If succession is regulated by the Indian Succession Act 1925, by reason of the
provisions contained in section 21 of the Special Marriage Act 1954
• If there exists any covenant or agreement entered by the Ruler of any Indian State
with the Government of India
• The Valiamma Thampuran Kovilagam Estate and the Palace Fund administered by the
Palace Administration Board
S. 3. Definitions and Interpretations
S. 3(1)(a)
"agnate" person is said to be an agnate of another if the two are related by blood or adoption wholly through
males;

S. 3(1)(c)
"cognate" person is said to be a cognate of another if the two are related by blood or adoption but not wholly
through males;

S. 3(1)(e)
“full-blood”, “half-blood” and “uterine blood”- (i) two persons are said to be related to each other by full
blood when they are descended from a common ancestor by the same wife, and by half blood when they are
descended from a common ancestor but by different wives;
(ii) two persons are said to be related to each other by uterine blood when they are descended from a
common ancestress but by different husbands;
Explanation- In this clause, ancestor includes the father and ancestress the mother;

S. 3(1)(j)
"related" means related by legitimate kinship:
Provided that illegitimate children shall be deemed to be related to their mother and to one another, and
S. 3. Definitions and Interpretations Contd. 1
S. 3(1)(f)
"heir" means any person, male or female, who is entitled to succeed to the property of an intestate under this
Act;

S. 3(1)(g)
"intestate“ - a person is deemed to die intestate in respect of property of which he or she has not made a
testamentary disposition capable of taking effect;

S. 3(1)(d)
the expressions "custom" and "usage" signify any rule which, having been continuously and uniformly
observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community,
group or family:
Provided that the rule is certain and not unreasonable or opposed to public policy: and
Provided further that in the case of a rule applicable only to a family it has not been discontinued by the
family;

S.3(2)
In this Act, unless the context otherwise requires, words importing the masculine gender shall not be taken to
include females.
S. 3. Definitions and Interpretations Contd. 2
S. 3(1)(b)
"aliyasantana law" means the system of law applicable to persons who, if this Act had not been passed, would
have been governed by the Madras Aliyasantana Act 1949, or by the customary aliyasantana law with respect
to the matters for which provision is made in this Act;

S. 3(1)(h)
"marumakkattayam law" means the system of law applicable to persons- (a) who, if this Act had not been
passed, would have been governed by the Madras Marumakkattayam Act 1932; the Travancore Nayar Act; the
Travancore Ezhava Act; the Travancore Nanjinad Vellala Act; the Travancore Kshatriya Act; the Travancore
Krishnanvaka Marumakkathayee; the Cochin Marumakkathayam Act; or the Cochin Nayar Act; with respect to
the matters for which provision is made in this Act; or
(b) who belong to any community, the members of which are largely domiciled in the State of Travancore
Cochin or Madras [as it existed immediately before the 1st November, 1956], and who, if this Act had not
been passed, would have been governed with respect to the matters for which provision is made in this Act by
any system of inheritance in which descent is traced through the female line;
but does not include the aliyasantana law;

S. 3(1)(i)
"nambudri law" means the system of law applicable to persons who, if this Act had not been passed, would
Matrilineal Law / Joint Family [Ch. 4 - 4.11]
• Matrilineal society, also called matriliny, is a society / group adhering to a kinship system in which ancestral descent is traced through maternal instead of
paternal lines
• Matrilineal society may or may not be matriarchal - difference between matrilineal and matriarchal is that matrilineal denotes kinship with mothers' or
female line while matriarchal denotes a form of family or social organization in which women are the head of that unit
Aliyasanthana Law:
• Applicable in South Kanara amongst the Bunts, the Billawas and the non-Priestly class among the Jainas
• Customary or ancient practice believed to have existed in Tulu Nadu since 77 A.D.
• Codified and amended by Madras Aliyasantana Act, 1949; HAS 1955 further amended this law
• System of inheritance through female line which gives property rights to the lady and all rights are centralized on her e.g., some of the surnames of Bunts
come from the mother side; the name of the mother's ancestral house ["tarwad"] normally became the prefix or suffix of one's name
• Thus, in the Aliyasantana system more importance is given to the mother's side of the family. More respect is given to maternal uncles than to the
paternal uncles.
• The inheritance of lineage identity in the form of gotra or in the form of ancestral house is through the mother. Marriage between same "gotra" was
prohibited.
• Inheritance is matrilineal, but in all aspects the husband is the head of the household i.e., they practice patriarchal system of living.
• The eldest male member is known as ‘ejaman’ and the eldest female member is known as ejamanthi. The senior-most member whether male or female, is
entitled to carry on the family managements. No member of the ‘tarwad’ had a right to claim partition or separate possession of his share without the
concurrence of other members. But the law was changed by the Aliyasantana Act, a member was given a right to separate himself or herself from the joint
family and claim partition. The ascertainment of the share at the partition is per capita and not per stripes
• In Marumakkattayam and Aliyasantana systems, the question of inheritance could arise only in the respect of individual property or in respect of the
family of the extinct tarwad. The self acquired property of a male member of the tarwad, which has not been disposed off of by him during his lifetime,
passes to the tarwad and forms part and parcel of its property.
Marumakkattayam law
S. 3(h) “marumakkattayam law” means the system of law applicable to persons―
–(a)who, if this Act had not been passed, would have been governed by: the Madras Marumakkattayam Act, 1932
(Madras Act 22 of 1933); the Travancore Nayar Act (2 of 1100K); the Travancore Ezhava Act (3 of 1100K); the
Travancore Nanjinad Vellala Act (6 of 1101K); he Travancore Kshatriya Act (7 of 1108K); the Travancore Krishnanvaka
Marumak kathayee (Act 7 of 1115K); the Cochin Marumak kathayam Act (33 of 1113K); or the Cochin Nayar Act (29
of 1113K); with respect to the matters for which provision is made in this Act; or
–(b) who belong to any community, the members of which are largely domiciled in the State of Travancore Cochin
or Madras [as it existed immediately before the 1st November, 1956], and who, if this Act had not been passed,
would have been governed with respect to the matters for which provision is made in this Act by any system of
inheritance in which descent is traced through the female line;
–but does not include the aliyasantana law;
Thus, Marumakkathayam was a system of matrilineal inheritance prevalent in what is now Kerala, India. Descent
and the inheritance of property was traced through females.
The properties were not handed to his sons but to the daughters of his sons or to their sisters.
'Marumakkal', in the Malayalam means nephews and nieces. Hence, the word "Marukkattayam" means inheritance
by sisters' children, as opposed to one's own sons and daughters.
Relation between Marumakkathaym and Aliyasantana
• In Marumakkattayam and Aliyasantana system, every member whether male or
female has equal right in tarwad (property) by virtue of his being born in that
tarwad (family).
• The only vital difference between the two systems is that in Aliyasantana system,
the senior most member whether male (ejaman) or female (ejamanthi) is entitled
to carry on the family management, while in Marumakkattayam system the senior
most male member (karnavan) has the right and power to carry on the family
management and in the absence of male adult members the senior most female
member (karnavathi) has the power to carry on family management.
• Under S. 7 of Hindu Succession Act, both these system based on custom and on
usage were abolished.
Historical perspective of traditional Hindu law Rules of
Succession - Male Hindu
S.6 of the Hindu Succession Act governs the succession of a Hindu Male for Joint Family property. The amending Act
2005 was one of the steps to remove gender-based discrimination contained in S. 6 of Hindu Succession Act, 1956

Pre-2005 Section 6:
S. 6. Devolution of interest in coparcenary property.-- When a male Hindu dies after the commencement of this act ,
having at the time of his death an interest in a Mithakshara coparcenary property, his interest in the property shall
devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this act.
Provided that, if the deceased had left surviving him a female relative specified in Class I of the Schedule or a male
relative, specified in that class who claims, through such female relative, the interest of the deceased in Mithakshara
Coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this act and not
by survivorship.
Explanation 1.--For the purposes of this section, the interest of a Hindu Mithakshara coparcener shall be deemed to be
the share in the property that would have been allotted to him if a partition of the property had taken place
immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2.--Nothing contained in the proviso to this section shall be construed as enabling a person who has
separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a
share in the interest referred to therein."
Historical perspective of traditional Hindu law Rules of
Succession - Male Hindu Contd. 1
Post-2005 Section 6:
S. 6. Devolution of interest in coparcenary property.-- (1) On and from the commencement of the Hindu Succession
(Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any
partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents
of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time
being in force in, as property capable of being disposed of by her by testamentary disposition.
 Historical perspective of traditional Hindu
law Contd. 2
• The traditional Hindu Law, especially in the context of inheritance, was patriarchal and much emphasis was on the male aspect.
• However, the Hindu Succession Act has fundamentally altered that Hindu laws
• In the Mitakshara school of inheritance, property is inherited by the male successors (coparceners) merely based on the fact that they
were born in the family of the property holders and in case of Dayabhaga the property goes to the male successors (coparceners) on
the death of the father or holder of the property.
• The Mitakshara was considered to be more biased against women and gave them the least rights to inherit property.
• In Mitakshara school, within a joint Hindu family, there is another body of persons called coparcenary which consists of a father, his
son, his grandson and his great-grandson. Thus, from a common male ancestor, only males descending up to 3 generations were
considered as a coparcenary and only these coparceners had a right to inherit the coparcenary property by birth being the sons,
grandsons, and great-grandsons of the holders of the property for the time being. Although females were not part of coparcenary, they
were entitled to maintenance out of coparcenary property.
• Further, under the Mitakshara school, the property devolved as per survivorship i.e., on the death of the last male holder property will
devolve in equal share to those coparceners who are surviving within the coparcenary. This means that if one of the coparceners other
than the last male holder dies, then his (deceased) probable share would be distributed among the surviving members of the
coparcenary. He leaves nothing behind that can be called his own share in the joint property.
• This concept of survivorship has been removed after the 2005 amendment to Hindu Succession Act, now the only way for devolution
of property is either by a will (testamentary) or by the rules of intestate succession given under Hindu Succession Act.
Historical perspective of traditional Hindu law Contd. 3
• Amending Act 2005 removed discrimination against daughter, 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 all daughters, including married ones, coparceners in joint family property by
birth in her own right in the same manner as the son heir
• Simultaneously S. 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.
• In Vineeta Sharma v. Rakesh Sharma (2020, SC), it was held that coparcener and the
daughter do not need to be alive, as on the date of the amendment. However, in case the
partition has been effected by metes and bounds and is adequately proved, then the
daughter of coparcenary cannot seek partition of already divided property.
Succession to property of a Hindu male dying intestate
• In the matter of succession of property of a Hindu male dying intestate, the Act lay down a set of general rules in Ss. 8 to 13
• Mitakshara coparcenary property shall devolve by testamentary or intestate succession under the Act and not as survivorship (2005
amendment)
• C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar:
• Property can ordinarily be reckoned as ancestral only if the present holder has got it by virtue of his being a son or a descendant
of the original owner
• To find out whether a property is or is not ancestral in the hands of a particular person, not merely the relationship between the
original and the present holder but the mode of transmission also must be looked at
• General rules of succession in the case of males [S. 8] – The property of a male Hindu dying intestate shall devolve first upon the Class I
heirs; second, if there is no heir of Class I, then upon the Class II heirs; third, if there is no heir of Classes I & II, then upon the agnates
of the deceased; and last, if there is no agnate, then upon the cognates of the deceased
• S. 9 - Class I heirs inherit simultaneously; but for other classes, an heir in the earlier entry is preferred over an heir in the later entry
• All heirs in each one of the entries stand in equal rights 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 stepfather 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.
Succession to property of a Hindu male dying intestate Contd.
Distribution of property among Class I heirs
S. 10. Distribution of property among heirs in class I of the Schedule.― The
property of an intestate shall be divided among the heirs in class I of the Schedule in
accordance with the following rules:―
Rule1.―The intestate’s widow, or if there are more widows than one, all the widows
together, shall take one share.
Rule2.―The surviving sons and daughters and the mother of the intestate shall each
take one share.
Rule 3.―The heirs in the branch of each pre-deceased son or each pre-deceased
daughter of the intestate shall take between them one share.
Rule 4.―The distribution of the share referred to in Rule 3— (i) among the heirs in
the branch of the pre-deceased son shall be so made that his widow (or widows
together)and the surviving sons and daughters get equal portions; and the branch of
his pre-deceased sons gets the same portion; (ii) among the heirs in the branch of
the pre-deceased daughter shall be so made that the surviving sons and daughters
Distribution of property among Class II heirs
S. 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.

I. Father.
II. (1) Son’s daughter’s son, (2)son’s daughter’s daughter, (3) brother, (4) sister.
III. (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’s daughter’s son, (4) daughter’s daughter’s
daughter.
IV. (1) Brother’s son, (2) sister’s son, (3) brother’s daughter,(4) sister’s daughter.
V. Father’s father; father’s mother.
VI. Father’s widow; brother’s widow.
VII. Father’s brother; father’s sister.
VIII. Mother’s father; mother’s mother.
IX. Mother’s brother; mother’s sister.
Explanation.―In this Schedule, references to a brother or sister do not include references to a brother or sister by
uterine blood.

So long as a single heir from the class I category is present, the property does not pass to the class II category.
Ss. 12 & 13 – Successions of Agnates & Cognates
• S. 3(1)(a) "agnate" person is said to be an agnate of another if the two are related by blood or adoption wholly
through males;
• S. 3(1)(c) "cognate" person is said to be a cognate of another if the two are related by blood or adoption but
not wholly through males;
AGNATES
• Classification of agnates- We know that 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: All descendants of an intestate Hindu male through males will be agnates. Class I
descendant agnates include son, daughter, daughter/son of predeceased son, daughter/son of predeceased
son of predeceased son. However, daughter/son of predeceased son of predeceased son of predeceased son
(SSSD / SSSS) are not included in either Class I or II, and would be nearest descendant agnates considered only
as per S. 12. Descendants have only degrees of descent, there being no limit to this degree.
• Ascendant Agnates: All ascendants of an intestate Hindu male through male line will be agnates. Class II
includes father, father’s father and father’s mother. However, father’s father’s father and father’s father’s
mother (FFF / FFM) are not included in either Class I or II, and would be nearest descendant agnates
considered only as per S. 12. Descendants have only degrees of descent, there being no limit to this degree.
• Collateral Agnates - Collaterals are descendants in the parallel lines. They may be on the maternal side, or
they may be paternal side.
Ss. 12 & 13 – Successions of Agnates & Cognates Contd. 1
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.
Classification of Cognates
• Cognates who are descendants: son’s daughter’s son’s son and daughter’s son’s
son’s son
• Cognates who are ascendants, for example, father’s mother’s father and mother’s
father’s father
• 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
Ss. 12 & 13 – Successions of Agnates & Cognates Contd. 2
S. 12-Order of succession among Agnates and Cognates- The order of succession among agnates or cognates
is to be determined in accordance with the following rules of preference:
Rule 1- One who has fewer or no degrees of ascent to be preferred
Rule 2- Where the number of degrees of ascent is the same or none, then the one with fewer or no degree of
descent to be preferred
Rule 3- Where neither heir is entitled to be preferred as per Rules 1 & 2, they take simultaneously

S. 13. Computation of degrees.―(1) For the purposes 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.

These 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.
Ss. 12 & 13 – Successions of Agnates & Cognates Contd. 3
General Rules with regard to preference and distribution of property among agnates and cognates:
Rule 1 - 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 2 - 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 3 - 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 4 - 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 4(a) - Among the claimant collaterals those who have fewer degrees of ascent (irrespective of
degrees of descent) will be preferred.
Sub-Rule 4(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 4(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.
Succession to property of a Hindu Female dying intestate
• 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

• Women were supposed to, it was held and believed, not have power of
absolute alienation of property

• Hindu Woman’s Right to Property Act, 1937 and HSA granted woman a
status where she could acquire, retain and dispose off the property as similar
to a Hindu male
S. 14 Succession to property of a Hindu Female dying intestate
S. 14. Property of a female Hindu to be her absolute property.―(1)Any property possessed by a female Hindu,
whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof
and not as a limited owner.
Explanation.―In this sub-section, “property” includes both movable and immovable property acquired by a
female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance,
or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or
exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property
held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or
any other instrument or under a decree or order of a civil court or under an award where the terms of the
gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
S. 15 Succession to property of a Hindu Female dying intestate
Sec. 15- In the case of female Hindus.―

(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 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.
Succession to property of a Hindu Female dying intestate
Three types of properties:
1. Inherited from her father or mother - inheritable by father’s heirs as per S.15(2)(a)
2. Inherited from husband or her father-in-law - inheritable by husband’s heirs as per S.15(2)(b)
3. Any other / general property - inheritable by father’s heirs as per S.15(1)

General Property includes:

•Self-acquired property
•Inherited property from brother, sister, etc.
•Gift
•Will
•Settlement
•Transfer for consideration
General Provisions of Succession (Sec.18 to 22)
• Section 18- Heirs related to an intestate by full blood shall be preferred to
heirs related by half blood, if the nature of the relationship is the same in
every other respect.
• Section 19- Mode of succession of two or more heirs―If two or more heirs
succeed together to the property of an intestate, they shall take the
property,―
–(a) save as otherwise expressly provided in this Act, per capita and not per
stripes; and
–(b) as tenants-in-common and not as joint tenants.
General Provisions of Succession (Sec.18 to 22)
(F)
On Death of Father F, Son S and Daughter D will inherit F’s
S D property on PER CAPITA basis.
Son’s Son SS or Son’s Daughter SD will have no share here.
SS SD

(F) On Death of Father F, predeceased Son (S) and Daughter D

will inherit F’s property on PER CAPITA basis - S inherits
(S) D NOTIONALLY.
Son’s Son (SS) or Son’s Daughter will have now inherit S’s
SS SD share on PER STRIP basis.
Joint Tenancy v. Tenancy-in-Common
JOINT TENANCY
• Title deed of the property works on the concept of unity by way of providing them equal
share in the property
• Determinants of unity: unity of title, unity of time, unity of interest, and unity of
possession
• Devolution based on principles of survivorship - upon the death of one joint owner, his
share automatically passes to the surviving owners
• Usually created through a will or deed; not created by intestacy
TENANCY-IN-COMMON
• When two or more people jointly hold a property i.e., joint ownership
• Devolution does not work on the concept survivorship, instead the interest in property is
passed to the legal heirs
S. 20 - Right of child in womb
A child who was in the womb at the time of the death of an intestate and
• who is subsequently born alive
• shall have the same right to inherit to the intestate as if he or she had been
born before the death of the intestate, and
• the inheritance shall be deemed to vest in such a case with effect from the
date of the death of the intestate.
S. 21 - Presumption in cases of simultaneous deaths
Where two persons have died in circumstances rendering it uncertain whether
either of them survived the other,
• and it is also uncertain survived the other,
• then for all purposes affecting succession to property,
• it shall be presumed, until the contrary is proved, that the younger survived
the elder.
S. 22 - Preferential right to acquire property in certain cases
(1) Where:
– an interest in any immovable property of an intestate, or
–An interest in any business carried on by him or her, (solely or in conjunction with others),
–devolves upon two or more heirs specified in class I of the Schedule,
–and any one of such heirs proposes to transfer his or her interest in the property or business,
–the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
(2) About the consideration for which any interest in the property of the deceased may be transferred under this section
– in the absence of any agreement between the parties, shall be determined by the court on application being made to it in this behalf,
– and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined,
– such person shall be liable to pay all costs of or incident to the application.
(3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section,
–that heir who offers the highest consideration for the transfer shall be preferred.
Explanation.―In this section, “court” means the court within the limits of whose jurisdiction the immovable property is situate or the
business is carried on and includes any other court which the State Government may, by notification in the Official Gazette, specify in this
behalf.

In Anhia Mandalanin v. Bajnath Mandal (1973), a stepmother of the deceased intestate female remarried prior to the commencement of
the Act, though the intestate women died after the commencement of the Act, it was suggested that the mother was not entitled to
inherit as she was disqualified.
Grounds of Disqualifications for Heirs
The Hindu Succession Act, 1956 does not follow the customary Hindu Law on disqualifications of heirs and
instead, mentions some new disqualifications which debar the heirs to succeed the property of the intestate.
These disqualifications are—
(1) Disqualification arising from remarriage S. 24
(2) Disqualification arising on account of commission of murder S.25
(3) Disqualification arising from conversion S. 26
(4) The old division of disqualifications of heirs into physical, mental, moral, religious and equitable has been
dispensed with under the present Act.
In Khagendra Nath Ghosh v. Karunadhar, the Calcutta High Court lays down that excepting sections 24, 25 and
26 there is no other provision under the Act which provides for disqualifications of heirs to succeed.
(5)These sections do not disqualify any female heir on the ground of her unchastity or leading an immoral life.
Thus, the unchastity of wife does not exclude her from claiming inheritance in the property of her husband,
nor could she be divested of the property which she has once inherited on the ground that she has become
unchaste.
Grounds of Disqualifications for Heirs: Widows
• The Supreme Court in Smt. Kasturi Devi v. Dy. Director of Consolidation, held that a
mother cannot be divested of her interest in the property on the ground of remarriage.
• However, the disqualification of a widowed daughter-in-law is based on a sacred and
spiritual relationship of the wife with her husband.
• When she breaks away that relationship by remarrying and entering another family, she
becomes disqualified to inherit the property when the succession opens. Any subsequent
remarriage after the succession has opened, will not deprive a widow of the share which
she has already inherited as an heir.
• In Cherotte Sugathan v. Cherotte Bharathi and others, the Supreme Court upheld that, if
the widow inheriting property of her husband on his death she becomes its absolute
owner of that property, subsequently remarriage of widow does not divest her of
property.
• Where the remarriage by the widow after the death of her husband and suit property is
held as ancestral property, she would not be entitled to any share in ancestral property
because of her remarriage.
Murderer disqualified
• Section 25 of the Hindu Succession Act, 1956 states that any person who commits the murder or assists the
murder shall be disqualified from inheriting the property of the person, or any property in the promotion to
succession to which he or she committed the murder. So as, if any person found guilty of the murder of the
deceased intestate must forfeit his or her rights to succeed to the property of the deceased.
• As the Section applies to an area where there is the inheritance of a property, but this Act also applies to an
area where the testator has left behind the will.
• A murderer who is guilty of murdering the testator cannot take any benefit under the will.
• The Section applies to succession under the Act. It does not apply to any other enactment under any other
statue.
• In Janak Rani Chadha v. the State (NCT of Delhi), the husband was held guilty for committing the murder of his
wife after a few years of his marriage. As she has leftover her property that she has purchased before her
marriage.
• So, therefore according to the Hindu Provision Act, the property constituted her general property and as she
died issueless, her husband would have normally succeeded to the property, but in accordance with the
provision of Section 25, he was the one who murdered her, so he would be disqualified from inheriting the
property.
Disqualification of the converted descendants
• Section 26 of the Hindu Succession Act, 1956 deals with the Converted descendant’s
disqualification.
• Before the initiation of this Act, Hindus ceased to be a Hindu by conversion to any other
religion, after the conversion of the religion, the descendants of such person too are no
longer Hindus. Therefore, they were also disqualified from inheriting the property of any
of their Hindu relatives in spite of any of those children being Hindu at the time of
succession opens.
• Under this Act as well when a Hindu converted his religion, he still might have a right to
all the property of his or her relatives, but descendants of a convert are disqualified from
inheriting the property.
Ss. 27 & 28
Sec. 27 - Succession when heir disqualified-If any person is disqualified from
inheriting any property under this Act, it shall devolve as if such person had
died before the intestate.

Sec. 28 - Disease, defect, etc., not to disqualify― No person shall be

disqualified from succeeding to any property on the ground of any disease,
defect or deformity, or save as provided in this Act, on any other ground
whatsoever.
S. 29 Doctrine of Escheat
Sec. 29 - Failure of heirs―
If an intestate has left no heir qualified to succeed to his or her
property in accordance with the provisions of this Act, such property
shall devolve on the Government; and the Government shall take
the property subject to all the obligations and liabilities to which an
heir would have been subject.