SUCCESSION TO THE PROPERTY OF A MALE INTESTATE

INTRODUCTION
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. 1 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 the 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. The person who makes a Will is called a
testator or a testatrix, the one in whose favour it is made is called a legatee, and the whole process is
called testamentary succession.

INTESTATE SUCCESSION
Where a person dies, leaving behind some property, but no Will or testament capable of taking 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 instructions 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 Rule of Intestate Succession

For the application of the 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, s. section 8 of the Hindu Succession Act, 1956, which
provides a scheme for intestate succession, applies to the following properties of a male Hindu:

1. 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, 2or 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.

1
Subject to the provisions of the Indian Succession Act, 1925.
2
For a detailed discussion, see Chapter 4, supra .
 2. Undivided Share of a Male Hindu in the Dayabhaga Joint Family Property

An undivided share of a male Hindu in the Dayabhaga joint family property would be subject to the
application of s. 8. 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.3

3. 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.4

4. 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.

5. Undivided Share in Mitakshara Coparcenary

The Act has introduced major changes in the devolution of a Mitakshara coparcenary property.
Presently, where a male Hindu dies as an undivided member of a Mitakshara coparcenary his
undivided share will be demarcated with the help of a notional partition and will go by intestate
succession and not by the doctrine of survivorship.5

6. Interest in a Tarvad, Tavazhi, Kutumba, Kavaru or Illom

A male Hindu who was subject to the Marumakkattayam, Namboodiri and Aliyasantana laws, is
presently, in matters of intestate succession, governed by s. 8 of the Act. Thus, the provisions of this
section would now govern the interest he had in a Tarvad, Tavazhi, Kutumba, Kavaru or Illom.6

Death of Male Hindu need not be After the Commencement of the Act

Section 8 applies where succession opens after the commencement of the Act. It does not require
that the death of a male Hindu, whose property is to go by inheritance, should have been after the
promulgation of the Act. For example, a Hindu male settles his property in favour of his wife, for her
life, and provides that after her death, the property would be held by his daughter, again for her life.
He dies in 1933, and the wife dies in 1945, but the daughter dies after the commencement of this
Act. On the death of the daughter, the succession opens and the property would devolve in
accordance with s. 8, even though the male Hindu had died before 1956.7
3
Laisram Aber Singh v . Yumnan Ningol Khangam Bam , AIR 1986 Gau 66 [LNIND 1984 GAU 31].
4
Eramma v . Veerupana , AIR 1966 SC 1879 [LNIND 1965 SC 318]; Arunachalathammal v . Rama Chandran
Pillai , AIR 1963 Mad 255 [LNIND 1962 MAD 220].
5
The Hindu Succession Act, 1956, s. 6, Proviso, Explanation I
6
The Hindu Succession Act, 1956, ss. 7(1) and (2).
7
Fateh Bibi v . Charan Das , AIR 1970 SC 789 [LNIND 1970 SC 120]; Harjesa v . Laxman , AIR 1979 Guj 45 ;
Moniram Kolita v . Keri Kolitani , (1880) 7 IA 115 (PC); Ramchandra v . Sridevamma , AIR 1974 Kant 68 [LNIND
1973 KANT 323](FB); Lakshmi v . Anantharama , AIR 1937 Mad 699 [LNIND 1937 MAD 45](FB); Lala Dunichand
v . Anarkali , AIR 1946 PC 173 .
Classification of Heirs The heirs of a male Hindu are divided into four
categories,8 namely:
(i) Class-I;
(ii) (ii) Class-II;
(iii) (iii) Class-III (Agnates); and
(iv) (iv) Class-IV (Cognates).

By providing this classification, the legislature has expressly revoked the pre-1956, separate systems
of inheritance available under the Mitakshara, Dayabhaga, and the matriarchal systems. Rules of
propinquity under Mitakshara and of religious efficiency under Dayabhaga, led to different
classifications of heirs and limited them to 14 degrees only.9

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 malemembers.

Rules for Devolution of Property

On the death of the intestate, the property devolves in the first instance, on the class-I heirs. So 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 had till 2005 twelve heirs, eight of them females and four were 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 tilted 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 the class-II category, the property descends to the class-III
category, which comprises all blood relatives of the intestate, related to him through a whole male
chain of relatives. These heirs, covered under the expression ‘agnates’, 10 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. 11It is noteworthy here
that the Act does not put a full 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 the 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

8
Hindu Succession Act, 1956, s. 8.
9
Under Mitakshara law, the heirs were classified into: (i) Sapindas; (ii) Samanodakas (agnates); and (iii)
Bandhus (cognates). Under Dayabhaga, the three categories were: (i) Sapindas; (ii) Sakulyas; and (iii)
Samanodakas.
10
An agnate is an heir who is related to the intestate through a chain of only male relatives.
11
A cognate is an heir who is related to the intestate through a chain of male and female relatives.
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 [see Fig. 12.8]:

(i) Mother (M);

(ii) Widow (W);
(iii) Daughter (D);
(iv) Daughter of a predeceased son (SD);
(v) Widow of a predeceased son (SW);
(vi) Daughter of predeceased daughter (DD);
(vii) Daughter of a predeceased son of a predeceased son (SSD);
(viii) Widow of a predeceased son of a predeceased son (SSW);
(ix) Son (S);
(x) Son of predeceased son (SS);
(xi) Son of a predeceased son of a predeceased son (SSS); and
(xii) Son of a predeceased daughter (DS).
(xiii) daughter of a predeceased daughter of a predeceased daughter (DDD).
(xiv) son of a predeceased daughter of a predeceased daughter (DDS).
(xv) daughter of a predeceased daughter of a predeceased son (SDD).
(xvi) daughter of a predeceased son of a predeceased daughter (DSD).

Mother : The expression ‘mother’ includes a biological as well as an adoptive mother, but it does not
include a step-mother.12 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.13

Marital Status of Mother Irrelevant : A mother is a mother and is always deemed to be related to her
child, irrespective of whether she is married or unmarried at the time of the birth of the son, or
whether her marriage was valid, void or voidable. Her marital status at the time of birth or death, is
of no consequence. The legitimacy or illegitimacy of the child does not affect the inheritance rights
of the mother. An unwed mother inherits from her son, despite the fact that he is an illegitimate
12
Padmavati Mishra v . Sumitra Devi , 2002 (1) HLR 114 (Pat).
13
See the Hindu Adoptions and Maintenance Act, 1956, s. 12.
child.14 A Hindu woman is now empowered to adopt a child to herself. If a single woman (whether
unmarried, divorced or a widow) adopts a child, such child would be her legitimate child and on his
demise, she would inherit from him.15A mother also inherits from her son born to her out of a void or
voidable marriage.

Conduct of Mother Irrelevant : For determining eligibility to inherit the property of her son, the
conduct of the mother is totally irrelevant. She may be unchaste, or of an immoral character, may be
involved in a live-in relationship with the father or any other person, or might have remarried 16
somebody else, other than the father of the child. Even if she renounces Hindu religion and converts
to another religion, she retains her rights to succeed to the property of the son.

Mother excludes Father : All the sub-schools of Mitakshara, except Mayukha, preferred the mother
to the father, in matters of inheritance to the property of her son. The mother was excluded in the
presence of the father under the Dayabhaga law. Under the Hindu Code Bill of 1948, the mother was
a class-II heir, placed in entry (I), along with the father. 17The same position continued when the Hindu
Succession Bill was introduced in the Parliament. 18 However, she was lifted from class-II, and placed
in the class-I category, along with other ‘preferential heirs’. 19This move was objected to by the
parliamentarians, on the ground that as both parents stand in the same degree of propinquity, there
was no rationale in preferring one to the other. Some judges also share the same view and have
called upon the legislature to amend the Act 20 to correct the imbalance. In this connection, it may be
noted that except under the Indian Succession Act, 1925, where the father excludes the mother,
under the Islamic law and the law applicable to Parsis, 21 both the parents are placed on an equal
footing, but inherit along with the children of the deceased, though their share is smaller in
comparison, to that of the children. If the parents need to be treated on an equal footing, both
should be placed in the class-I category, with the children and other heirs present.

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.22 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.23 Inheriting along with the son and daughter, she takes a
share equal to that of the daughter and son.24

14
See The Hindu Succession Act, 1956, s. 3 (i)(j).
15
See The Hindu Adoptions and Maintenance Act, 1956, s. 12.
16
Kasturi Devi v . Deputy Director , Consolidation , AIR 1976 SC 2595 [LNIND 1976 SC 420]; Ratnabai v .
Mankuwar , 1978 HLR 573 (HP).
17
The Hindu Code Bill, 1948, Schedule VII, Class II.
18
The Hindu Succession Bill, Bill 13 of 1954, the Schedule.
19
The Hindu Succession Bill, Bill 13B of 1954, the Schedule.
20
Leela Prasad Bhubani , (1955) 1 Andh. LT 8 M.
21
The Indian Succession Act, 1925, s. 51.
22
The Hindu Succession Act, 1956, s. 10, Rule 1.
23
Ibid ., s. 14.
24
Ramabai Padmakar v . Rukminibai Vishnu Vekhande , AIR 2003 SC 3109 [LNIND 2003 SC 668].
The term ‘widow’, refers to the spouse of a perfectly valid marriage, 25 which means that this
marriage should have been solemnised validly, according to the law, and should conform to the legal
requirements as well. Where a Hindu male married a Christian lady under Hindu Marriage Act, this
marriage is not permitted under the Hindu law and would not confer the status of a legally wedded
wife on the Christian woman. Therefore she is neither entitled to a share in the coparcenary property
held by the family of which the man was a member nor is she entitled to succeed to his separate
property26. The expression ‘widow’ does not include a divorced wife, 27 but it includes a ‘wife’ who, at
the time of the death of the male Hindu, was living separately under a decree of judicial separation.
Pendency of a litigation praying for decree of divorce is not the same as a divorce and if the husband
dies during the litigation, the widow would be entitled to inherit his property, even if a document
had been executed stating that the marital tie has been broken that does not affect her legal status
as a wife28, even if the divorce petition was based on her adultery or any other misconduct
committed by her. It is pertinent to note that under the present law, the moral character or
faithfulness of a wife are not relevant considerations for determining her eligibility to claim
inheritance from her husband. In Daljit Kaur v. Amarjit Kaur 29, subsequent to the marriage, the wife
(W1) left the husband (H1) and started living with another man (H2) and bore him three children.
She underwent an operation and wrote the name of her paramour in the place where the name of
the husband was to be written. The husband on the other hand did not seek divorce on grounds of
his wife’s adultery but without putting an end to the first marriage got married to W2, and even
mentioned the name of W2 as his wife in the official records. On his death W1 filed a claim to his
property that was resisted by W2, but the court ruled in favour of W1 and held that unchastity is a
ground for divorce but not a disqualification for succession rights. The court therefore held that the
succession rights of W1 were unaffected by the chain of actual events. On parallel facts a
contradictory judgment based on the principles of equity, justice and good conscience came from the
Andhra Pradesh High court. In Krishnamma v. P. Subramanyam Reddy 30, a Hindu wife had deserted
the husband to live and give birth to her paramour’s children. She re-appeared on the scene after her
husband’s death and instituted the suit for a claim to his property. The court held that the widow
having abandoned all her rights; having left the family once and for all; having been under the roof of
another man and having begotten his children cannot claim her husband’s property both in law and
also in equity. A woman who was a party to a void marriage or a voidable marriage, that was
annulled by a decree of nullity, on the death of the man, would not be called his widow and would
have no rights to succeed to his property. 31 In case of a voidable marriage, since the marriage is valid
till annulled by the court, the wife would be entitled to inherit if the husband dies during the
pendency of the petition praying for a decree of nullity, irrespective of the fact that his consent was
obtained by force or fraud. In case the marriage was valid, the widow inherits the property despite

25
Gulaba v. Sitabiya, AIR 2006 (NOC) 1379 (All); Daveerawwa v. Gangawa, AIR 2006 (NOC) 535 (Kant); Rajesh v .
Bai Shanta Bai , AIR 1982 Bom 281 [LNIND 1982 BOM 44].
26
Margaret Palai v. Savitri Palai, AIR 2010 Ori 45 [LNIND 2009 ORI 116].
27
Margabandhu v . Kothandarama , (1983) 2 Mad LJ 445; Lakshmi Bai v . Limbabai , 1983 HLR 208.
28
Thankan v. Rajan, AIR 1999 Ker 62 .
29
AIR 2009 P&H 118.
30
AIR 2008 (NOC) 482 (AP).
31
Ramkali v . Mahila Shyamwati , AIR 2000 MP 288 [LNIND 2000 MP 192].
her unchastity.32 Where she inherits the property, it vests in her the moment the succession opens
and her remarriage subsequent to such vesting, cannot divest her of the property.33

Daughter : The inclusion of the daughter had raised maximum eyebrows at the time of the passing of
the Act, as a majority of Hindus did not want to give her a share. Despite their express dissent, the
daughter found her place in the class-I category, along with the son. 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.134Under 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 such discrimination. A daughter is a daughter, and her marital status, her
chastity or even her financial position, is of no consequence. A wealthy daughter will inherit a share
equal to that of a poor son. Similarly, how and to whom she gets married to is totally irrelevant. A
daughter may defy the wishes of the father and marry against his choice, yet, this would not stand in
her way of inheriting the property of her father on his demise. For example, a daughter of a
conservative Hindu father, runs away from home and gets married to a non-Hindu under the Special
Marriage Act, 1954, against the wishes of the entire family. Her shocked father is devastated. He
neither speaks to her till his death, nor allows her to enter his home. Yet, when he dies, this daughter
will inherit his property. Similarly, chastity and the character of a daughter, are of no consequence. A
daughter might be involved in a live-in relationship with a man; may have an affair with a married
man, or may be living as a traditional, virtuous wife in a patriarchal family, none of this would have
any affect on her succession rights in her father’s property. Prior to 1956, an unchaste daughter could
not inherit her father’s property under the Dayabhaga law, but a daughter who led an unchaste life
after inheriting her father’s property, could not be divested of the share so inherited. Mitakshara law,
even prior to 1956, did not consider the character or chastity of the daughter as relevant. Presently,
the share of the daughter is equal to that of the son, and her rights to enjoy the property that were
curtailed vastly where the property inherited was a dwelling house have been done away with.2 35

Son : The expression ‘son’ includes a natural born son or an adopted son. It does not include a step-
son or an illegitimate son.336Under the pre-1956 law, a son of a Shudra by a permanently kept
concubine, succeeded to the property of his father, but after the passing of the Act, he is treated on
par with other illegitimate children and does not inherit from the father.4 37 A son born of a void

32
Under the old law, unchastity of a widow was a disqualification. See Animuthu v . Gandhiammal , AIR 1977
Mad 372 [LNIND 1976 MAD 301]; Chandicharan v . Bhagyadhar , AIR 1976 Cal 356 .
33
Gajodharidevi v. Gokul, AIR 1990 SC 46 ; Udham Kaur v. Harbans, 1983 HLR 579 (P&H); Buribai v. Champibai,
AIR 1968 Raj 139 .
34
The Hindu Marriage Act, 1955, s. 16; Rameshwari Devi v. State of Bihar, AIR 2000 SC 735 [LNIND 2000 SC
171]; Nagarthnamma v. Venkatalakshmamma, AIR 2000 Kant 181 [LNIND 2000 KANT 3]; see also Thankan v.
Rajan, AIR 1999 Ker 62 . Gurnan Singh v . Puran Singh , (1996) 1 HLR 446 (SC); Baghyavathi v .
Lakshmikanthammal , AIR 1993 Mad 350 .
35
The Hindu Succession Act, 1956, s. 23.
36
Dodo Atmaram Patel v . Raghunath Atmaram Patil , AIR 1979 Bom 176 [LNIND 1978 BOM 15]; Ramkali v .
Mahila Shyamwati , AIR 2000 MP 288 [LNIND 2000 MP 192]; Chodan Puthiyoth Shyamalavati Amma v. Kovalam
Jisha, AIR 2007 Ker 246 [LNIND 2007 KER 296].
37
See Anasuya Bai v . Jagdish Prasad , 1977 MPLJ 7 (wherein it was held that an illegitimate child was entitled
to inherit. The decision appears to be incorrect and in contradiction with the definition of the term ‘related’
under s. 3(1)(j) of the Hindu Successions Act, 1956).
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.5 38

The right of a son to inherit the property of his father, has never been in dispute. Under the classical
law, he was a primary heir. Under Mitakshara law, he took the share in his father’s property by
inheritance, but in the capacity of the Karta of his family and the character of such inherited property
was coparcenary property as regards his own son.6 39 However, under the Act, he takes an absolute
interest in the property and his son cannot claim a right by birth in it.7 40 The expression ‘son’
therefore, does not include a grandson,841 but includes a posthumous son. The Act does not
differentiate between a good son or a bad son and a divided son or an undivided son. In the
patriarchal set-up, linkage of inheritance rights with the character of a man or his marital status, is
unheard of and therefore, a son’s inheritance rights are not affected by any of these considerations.

Children born of a live in relationship

The literal interpretation of the enactment shows that children of valid marriages generally or of
void/annulled voidable marriages are treated as legitimate for inheriting the property of their father.
Progeny of a defective marriage; casual or occasional relationship or even a prolonged consistent live
in relationship is treated as illegitimate and ineligible to inherit the property of the father. In Mohan
Singh v. Rajni Kant942 the apex court has held that children born of a live in relationship where the
parties have lived together for a very long time and have projected themselves as husband and wife
before the society would be entitled to inherit the property of their father. The issue arose in
connection with a case wherein a widower having children from the first wife started living with
another woman without getting married to her and fathered children from this relationship. On his
death the claim of the children from the second union was resisted by his legitimate children on the
ground that inheritance rights can be claimed only by the legitimate children and not by the
illegitimate children. The court held that this kind of sustained relationship cannot be termed as a
"walk in walk out" relationship and it was for the party opposing the presumption of marriage to
prove the contrary in such cases. The court upheld the right of the children born out of the second
relationship to inherit the property and observed that "if a man and a woman cohabit for a number
of years it will be presumed under Sec. section 114 of the Indian Evidence Act that they live as
husband and wife and the children born to them will not be illegitimate". The judgment does not
appear to be laying down a correct proposition of law. Legitimacy is conferred by a valid marriage
and nothing short of a valid marriage. This is precisely the reason why sec. section 16 of the Hindu
Marriage Act, 1955, as a special case confers legitimacy for the purposes of inheritance on the
38
Kanagavalli v . Saroja , AIR 2002 Mad 73 [LNIND 2001 MAD 687]; Rameshwari Devi v . State of Bihar , AIR
2000 SC 753 ; SPS Balasubramaniam v . Suru Hayam , AIR 1992 SC 756 ; Kishori Hari Singh v . Prakash Nar Singh
Shah , 2001 AIHC 777 (Bom); Lakshmi Bai v . Limbabai , 1983 HLR 208; Margabandhu v . Kothandarama , (1983)
2 Mad LJ 445.
39
Muhammad Hussain Khan v . Babu Kishvanandan Sahai , AIR 1937 PC 233 .
40
Commissioner of Income Tax v . Babubhai Mansukhbhai , (1977) 108 ITR 417 (Guj); CWT v . Chander Sen ,
(1986) 161 ITR 370, AIR 1986 SC 1753 [LNIND 1986 SC 214]; Commissioner of Income Tax v . Ram Rakshpal
Ashok Kumar , (1968) 67 ITR 164; Shri Vallabhdas Madani v . Commissioner of Income Tax , (1982) 138 ITR 673,
(1983) Tax LR 559 ; Addl Commissioner of Income Tax v . PL Karuppan Chettiar , (1978) 114 ITR 523 [LNIND
1978 MAD 34]; CWT v . Mukundgiriji , (1983) 144 ITR 18 [LNIND 1983 AP 47]; Commissioner of Income Tax v .
Virender Kumar , (2001) 252 ITR 539 (Delhi).
41
Harbans Singh v . Takamani Devi , AIR 1990 Pat 26 ; Leela Prasad v . Bhavani , 1995(1) All LT 814.
42
Civil Appeal No. 6466 of 2004, decided on August 13, 2010 see also Parmanand v. Jagrani, AIR 2007 MP 242
[LNIND 2007 MP 368].
children born out of void or voidable marriages. The very fact that they restrict the rights of
inheritance in such cases to only the parents and not any other relations of the parents shows that
the slight liberal legislative approach is adopted where the marriage has already been validly
solemnized but fails the legal validity test. It is either void or voidable but a live in relationship is not
a marriage at all and the partners to this intimate union cannot get the status of husband and wife.
Where the statute clearly provides a double validity criterion for the validity of a Hindu marriage i.e.,
it should be solemnized validly and should be in conformity with Sec. 5 that lays down conditions
relating to the validity of a marriage, this judicial precedent appears to be in direct conflict with a
specific and clear legislation. Unwarranted legislative and judicial contradictions should be avoided as
much as possible as they only pave way for undesirable and unnecessary confusions and
uncertainties.

Sons and Daughters of 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.1043 The expression used in the Act is son and daughter of a predeceased son, and not
grandson or granddaughter, which means that their turn to inherit would come only when their
father, through whom they were related to the deceased, is dead. So long as he is alive, they cannot
succeed to the property of the grandfather, as no one can represent a living parent in matters of
succession.

Succession Rights of Son and Daughter of a Predeceased Son where the Parents or the Grandparents
had a Void or Voidable Marriage: One of the most important points to note here is that not only the
son and daughter of a predeceased son must be perfectly legitimate, but their father should also
have been a legitimate offspring of the grandfather. If the father was born out of a void marriage or a
voidable marriage, that was annulled subsequently, he would be entitled to inherit the property of
his parents, but on his death, his children would not be deemed to be related to the grandfather, and
therefore, they would not inherit his property.1144 For example, in Fig. 12.9(i), F, a male Hindu, was
married to W. While his marriage to W was subsisting, he got married to M. This marriage was a void
marriage. A son S, is born to him from this void marriage.

On the death of the father, S would be entitled to inherit the property of F , due to conferment of
statutory legitimacy on the son. This legitimacy is personal in character and is subsisting only
between the parents and the child, and it is not carried forward to the second generation. Thus, the
children of a predeceased son, who was born out of a void or voidable marriage, do not succeed to

43
The Hindu Succession Act, 1956, s. 10, rule 3.
44
The Hindu Marriage Act, 1955, s. 16(3).
the intestate. Similarly, children born of a void or a voidable marriage, that was annulled
subsequently, do not inherit the property of their grand parents, and it has specifically been provided
that they would not be entitled to have rights in the property of any other person. For example, as in
Fig. 12.9(ii), a Hindu father A , has a son F . F contracts a bigamous marriage, and two children S and
D , are born to him. F dies during the lifetime of A . On the death of A , S and D , the son and
daughter of his predeceased son, would not be eligible to inherit A ’s property as they were born of a
void marriage and are deemed to be related for the purposes of inheritance, only to their parents,
and to none of the relatives of their parents.

The quantum of the share of a son and a daughter of a predeceased son, is absolutely equal. They
take the property absolutely or exclusively, with full powers of disposal over it.

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 it equally between them. The marital status of the children and their character would not
have any adverse effect on their succession rights. Where an unmarried or a single woman adopts
children, such adopted children would be legitimate and entitled to inherit the properties of their
maternal grandfather, on the death of their mother. However, where either these children or their
mother was born of a void or an annulled voidable marriage, they would not be entitled to inherit
the property of the maternal grandfather.

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. As has been explained above, the
relationship to the intestate should be the natural born legitimate or adopted relationship. Except in
the case of a valid adoption, they and their ascendants, should be the progeny and parties to a valid
marriage, and not of a void or a voidable marriage that has been annulled. The daughter of a
predeceased son of a predeceased son, inherits a share equal to the share of her brother, and
neither her marital status, chastity, nor her financial position, is of any consequence for the
determination of her eligibility to inherit the property. She was not a preferential heir under the
Hindu Code Bill, 1948, but was placed in the class-I heir category in the original Hindu Succession Bill
of1954.

Widow of a Predeceased Son : The widow of a predeceased son, is not a blood relation and is
introduced in the family by marriage to the son. She is a class-I heir and is even preferred to the
father of the intestate. The term used here is a ‘widow’, and not the spouse of the 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 she be a member of his
family, and will be disqualified from inheriting his property.12 45 For example, as illustrated in Fig.
12.10, a family consists of the father F , his son S , his wife SW and their son SS .

45
The Hindu Succession Act, 1956, s. 24.
S dies during the lifetime of F . SW remarries H and takes SS to the new family. After 6 months, H also
dies. She had no house of her own, and F , due to love and affection for SS , brings SW and SS back to
his house. SW , in return, looks after him as a member of his family. On the death of F , it is only SS
who would inherit the property and SW will be disqualified, as by her marriage to H , she could no
longer be called the widow of the predeceased son of the intestate.

The term ‘widow’ does not include a divorced wife of the son, but would include his deserted wife or
a wife voluntarily living apart from him, or an unchaste wife, or a wife who was living separately from
him under a decree of judicial separation. A widow of an illegitimate son or a son born of a void or a
voidable marriage that has been annulled, is not entitled to inherit the property of the intestate.

Widow of a Predeceased Son of a Predeceased Son : The widow of a predeceased son of a

predeceased son, is a class-I heir. She was also included as a preferential heir under the Hindu Code
Bill, 1948. 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.1346

Sons and daughters of a predeceased daughter of a predeceased daughter

In case where during the life time of the intestate, his daughter, and daughter of such daughter dies
leaving behind her children, all such children would be the class-I heirs of the intestate. 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 Sep., 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. The legislature
has brought in a disparity in the rights of brothers and sisters here that appears to be without any
basis.

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. Till Sep., 2005 such daughter was a class-II heir placed in entry IV. Ironically

46
The Hindu Succession Act, 1956, s. 24.
while this great grand daughter again has been made a class-I heir, her brother is still a class II heir.
The legislature has brought in a disparity in the rights of brothers and sisters here that appears to be
without any basis.

Rules for Distribution of the Property Among the class-I heirs, the property of an intestate is divided
in accordance with the following rules:

(i) The share of each son and daughter and of the mother is equal.

(ii) 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.

(iii) A predeceased son, who is survived by a son, daughter or a widow, is to be allotted a share equal
to the share of a living son.

(iv) 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.

v) 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.

(vi) 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.

(vii) Such share will be taken equally by the sons and daughters of the predeceased daughter.
Illustration (i)

In Fig. 12.11, a Hindu male A dies and is survived by his mother M , widow W , a son S and an
unmarried daughter D .

In the present case, the mother, widow, son and the daughter, each will take one-fourth (1/4th) of his
property. So, the shares will be as follows:

M = 1/4

S = 1/4

W = 1/4

D = 1/4
Illustration (ii)

A Hindu male A dies intestate and is survived by his mother M , two widows, W 1 and W 2, an
unmarried daughter D 1, a married daughter D 2 and two sons, S1 and S2 [see Fig. 12.12].

Here, the mother, each of the two sons, each daughter and the widows together, will take a share
each. The property will be divided into six equal parts and the share of each heir will be as follows:

M = 1/6

W 1 + W = 1/6

S 1 = 1/6

W 1 = 1/12

S 2 = 1/6

W 2 = 1/12

D 1 = 1/6

D 2 = 1/6

Both the widows will, together, take a share equal to that of the son and divide it equally between
them. As there is no difference between the rights of a married and an unmarried daughter, both will
inherit an equal share.

Illustration (iii)

A Hindu male A , dies intestate in 2000, leaving behind his widow W1 , whom he had married in
1990, and a son S , from her. He married W 2 in 1994, while his first marriage was subsisting and a
daughter D was born to him from W 2 [see Fig. 12.13].

Here, the marriage of A with W 2 was a void marriage and therefore, she is not entitled to inherit his
property, but the daughter who is born of this marriage is a legitimate child and succeeds with his
other descendent, i.e., the son. The property will be divided into three equal parts, one each going to
W 1, S and D . The final shares will be as follows:
W 1 = 1/3

W 2 = (Nil)

S = 1/3 D = 1/3

Illustration (iv)

A , a Hindu male dies in 2000, leaving behind his widow W and an adopted son DS 1, a concubine C ,
and a son DS 2, born to him from the concubine [see Fig. 12.14].

Here, the concubine is not entitled to succeed. DS 2 is an illegitimate son and does not inherit from
the father. The property will be divided into two equal parts, one each going to the widow W and the
adopted son DS 1. The shares will be as follows:

W = 1/2

C = Nil

DS 1 = 1/2

DS 2 = Nil

Illustration (v)

A , a male Hindu, dies leaving behind his mother M , widow W , two daughters D 1 and D 2, the
widow of a predeceased son SW , and two sons of a predeceased daughter DS 1 and DS 2 [see Fig.
12.15].

The property will be divided into six equal parts, one each going to the mother M , widow W , two
living daughters D 1 and D 2, one share to the branch of the predeceased daughter D , and one share
to the branch of the predeceased son S . The share allotted to the branch of the predeceased
daughter will be taken equally by her two sons and the share given to the branch of the predeceased
son will be taken by his widow. The shares of each of them will be as follows:

M = 1/6

W = 1/6
D 1 = 1/6

D 2 = 1/6

DS 1 = 1/12

DS 2 = 1/12

SW = 1/6

Illustration (vi)

A male Hindu A , dies intestate in 2000, and is survived by his parents F and M , his one son S1,
widow of his predeceased son SW and two children SSD and SSS of the predeceased son of a
predeceased son S3, who died in 1996. The widow of SS , SSW , had remarried in 1998. [See Fig.
12.16]

The property will be divided into four parts. As the father F is a class-II heir, he does not get a share.
The mother M , and the living son S1, will take a one-fourth (1/4th) share each. One share will be
allotted to the branch of the predeceased son S2, which will be taken by SW . Another share will be
allotted to the branch of the predeceased son of a predeceased son S3. Out of this share, his children
SSS and SSD will share equally. SSW will not get a share as she remarries before the opening of the
succession, viz., before the death of A . The shares will be as follows:

F = Nil

M = 1/4

S 1 = 1/4

S 2 W = 1/4

SSS + SSD = 1/4

SSW = Nil

SSS = 1/4 1/2 = 1/8

SSD = 1/4 1/2 = 1/8

Illustration (vii)
A male Hindu A , dies intestate and is survived by his mother M , widow W , one son S1, one
daughter D 1, two children of a predeceased son SS and SD and his widow SW ; one son and
daughter of a predeceased son of this predeceased son SSS , SSD and SSW , and a son and a daughter
of a predeceased daughter DD and DS . [See Fig. 12.17]

This illustration includes twelve class-I heirs. The property here, would be divided into six equal
parts. The mother, widow and each living son and daughter will take a share. The branch of the
predeceased son and the predeceased daughter will be allotted one share each. The share allotted to
the branch of the predeceased daughter, will be taken by her son and daughter, equally. The share
allotted to the branch of the predeceased son will be so divided that his widow, living son and
daughter and the branch of his predeceased son, gets an equal share i.e., 1/6 1/4 = 1/24 each. The
branch of the predeceased son of the predeceased son, will take the share and will divide it equally
among the widow, son and daughter viz., 1/24 1/3 = 1/72. The final shares will be as follows:

M = 1/6

W = 1/6

S 1 = 1/6

D 1 = 1/6

DD + DS = 1/6

DD = 1/6 1/2 = 1/12

DS = 1/6 1/2 = 1/12

SW + SS + SD + (SS 1) = 1/6

SW = 1/6 1/4 = 1/24,

SS = 1/6 1/4 = 1/24

SD = 1/6 1/4 = 1/24

SS 1 = SSW + SSS + SSD = 1/24

SSW = 1/24 1/3 = 1/72

SSD = 1/24 1/3 = 1/72

SSS = 1/24 1/3 = 1/72

Illustration (viii)
A , a male Hindu, dies on 1 January 2001, and is survived by his father F , and a widow of a
predeceased son of a predeceased son SSW . SSW remarried on 3 January, 2001. [See Fig. 12.18]

Here, the complete property will be taken by SSW , to the exclusion of the father of the intestate, as
the presence of a single class-I heir will not let the property pass to the class-II category. The
succession opened on 1 January, 2001. As on this day, SSW was a widow of A ’s predeceased son of a
predeceased son, she is vested with the property. Her remarriage two days later, will not divest her
of the property that has already vested in her.

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. When a Hindu male dies unmarried and is not survived by any class-I heir, the property
would devolve among class-II heirs1447 . Where heirs in category (ii) and (iv) are present the former
would exclude the later. Thus in presence of a brother of the intestate, the nephew cannot inherit15
48
. This category has 19 heirs. Out of these heirs, who have been grouped into nine sub-categories,
the prior excluding the later, ten heirs are males and nine are females, and include the father, two
great-grand children and grandparents, brothers, sisters, and their children, paternal and maternal
uncles and aunts, step-mothers and the widows of the brothers of the intestate. The heirs in the first
sub-category exclude those in the second, the heirs in the second exclude those in the third, and so
on.1649 All the heirs of one category, take the property in equal shares, according to the per capita
rule of distribution of property,1750 and the order in which their names appear is irrelevant.

These heirs and their sub-categories are as follows:

I. Father

II. (1) Son’s daughter’s son (2) Son’s daughter’s daughter (now also placed in class–I category) (3)
Brother (4) Sister

III. (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)

IV. (1) Brother’s son (2) Sister’s son (3) Brother’s daughter (4) Sister’s daughter1851
47
Kalyan Kumar Bhattacharjee v. Pratibha Chakraborty , AIR 2010 (NOC) 646 (Gau).
48
Hari Singh v. Joginder Singh , AIR 2010 (NOC) 915 (P&H).
49
Madhavi Amma v . Velu Pillai , (2001) 1 HLR 358 (Ker).
50
Kumaraswamy v . Nanjappa , AIR 1978 Mad 285 [LNIND 1977 MAD 211]; Ramachandra v . Arunachalammal ,
(1971) 3 SCC 847.
51
Sarada v . Chakkunny , AIR 1992 Ker 249 .
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 : The term ‘brother and sister’ here, does not include a reference to a brother or sister
by uterine blood.

It should be noted that under the class-II heirs, the patriarchal norms of preference to paternal
relations over maternal relations, have been retained. As among the step-brothers and step-sisters
also, where the brothers and sisters share a common father, they inherit as class-II heirs from each
other, but where they share a common mother, but are from different fathers, they are called uterine
brothers and sisters and are not entitled to succeed from each other as class-II heirs. It presents a
strange combination, that while the mother, in matters of inheritance, excludes the father, all her
relations in the same degree of propinquity, are excluded by the relations of the father.

Father : The expression ‘father’ includes a biological as well as an adoptive father,19 52 but does not
include the stepfather, or a putative father of an illegitimate son. Where the son was born of a void
marriage or a voidable marriage that was annulled by the court, his father is related to him and
entitled to inherit the property on his death.

The position of the father is such that from the property of the son, by way of inheritance, either he
gets nothing, or he gets the total property. Till a single class-I heir is present, the father is
excluded.2053 But his presence excludes every other class-II heir. He inherits alone. The Hindu Code
Bill, 1948, as well as the original Hindu Succession Bill, 1954, had placed both the parents, i.e., the
mother and the father as sub-category (i) of class-II heirs, but the mother was later placed in the
class-I category, while the father’s position remained the same. Presently, both the parents are
placed on an equal footing, for succession to the property of a female Hindu, and for Parsi and
Muslim intestates, but under the Indian Succession Act, 1925,21 54the father is preferred to the
mother, and she is therefore, excluded in his presence. It is only under the Hindu Succession Act,
1956, and the Indian Succession Act, 1925, that the father is excluded in presence of the children.
Even under the Mitakshara law, except the Mayukha, the father’s placement was after the mother.
Under the Dayabhaga law, the situation was reverse. The placement of the parents should not be
different vis--vis each other and as the basis of eligibility to succeed is natural love and affection,
there is no reason why both the parents should not find their place in the class-I category.

Son of a predeceased daughter of a predeceased son: The children of predeceased daughter of a

predeceased son of an intestate were his class-II heirs and inherited if none of the class-I heirs or the
father of the intestate was present. Presently, out of such children, the daughter has been lifted to
class-I category, while her brother has retained his original placement.

52
The Hindu Adoptions and Maintenance Act, 1956, s. 12.
53
Co-operative Insurance Society v . Bhansilal , AIR 1979 Guj 121 .
54
General scheme of succession.
In Fig. 12.19 if SDD1; SDD2 and SDS are present, SDD1 and SDD2 would inherit the property as they
are class-I heirs, while SDS will not get anything in their presence. However if none of the class-I heirs
or the father is present then, SDS will get the property.

Brother and Sister: Brothers and sisters can be related to each other by blood or by adoption. When
the relationship is by blood, it can be a full-blood, half-blood or uterine blood relationship.

Full-blood Relationship : Where the brothers and sisters share both their parents, i.e., they are the
descendants of the same mother and father, they are called full-blood brother and sister.

In Fig. 12.20, S and D are the son and daughter of F and M . As they share both the parents, they are
full-blood brother and sister.

Half-blood Relationship : Where the children have only one common parent, it is a half-blood
relationship. But under Hindu law, a half-blood relationship denotes brothers and sisters from a
common father, but from different mothers. A Hindu father F , and his wife W1 , have a son S . W1
dies or is divorced, whereupon F gets married to W2 and gets a daughter D from her. S and D are
half-blood brother and sister as their father is common, but mothers are different. They are also
called, popularly, as step-brother and step-sister.

Inheriting as class-II heirs, brothers and sisters related to the intestate by full-blood, exclude those
related by halfblood, if the nature of the relationship is the same in every other respect,22 55 a full-
blood sister would exclude the half-blood brothers and sisters.2356

55
See The Hindu Succession Act, 1956, s. 18.
56
Jhugli Tekam v . Assistant Commissioner , AIR 2004 MP 52 [LNIND 2003 MP 340]; Sarwan Singh v . Dhan
Kaur , (1971) ILR 1 [LNIND 1971 DEL 9] Punj 158 ; Yellawa Gounder v . Lakshmi , AIR 1975 Mad 253 [LNIND 1974
MAD 146]; Purushottam v . Sripad , AIR 1976 Bom 375 [LNIND 1976 BOM 23]; Waman Govind v . Gopal
Baburao , AIR 1984 Bom 208 [LNIND 1983 BOM 165](FB). See also Deep Narayan Singh v . Sarjan Singh , (2002)
2 HLR 497 (Cal); Satya Charan v . Urmila , AIR 1970 SC 1714 [LNIND 1969 SC 319]; Ujjal Kumar v . Laxman
Chandra , 87 CWN 441; Sajjan Singh v . Gurdial Singh , 1973 Cur LJ 51.
Uterine Blood Relationship : Where two or more children are from the same mother, but their
fathers are different, this is again a half-blood relationship, but is called a uterine blood relationship.
For example, in Fig. 12.21, W , a Hindu woman, gets married to H , a Hindu male, and a daughter D is
born to her. H dies and W gets married to H 1 and gives birth to a son S .

S is D ’s uterine brother and their relationship is called uterine blood relationship. Uterine brother
and sister of an intestate, are not his class-II heirs, but inherit as cognates when no other nearer heir
is present.2457

Rights of Brothers and Sisters when the Parents had a Void or Voidable Marriage Annulled by the
Court : An offspring of a void or voidable marriage annulled by the court, is a legitimate child, but is
deemed to be related only to his parents. Such a child does not inherit from the other natural born,
legitimate child of a valid marriage of the father. For example, in Fig. 12.22, the father F , gets
married to W 1 and a son S1 is born to him. While the marriage with W 1 is subsisting, F gets married
to W 2 and two sons S2 and S3 are born.

W 1 and F die and now, S1 dies. S2 was a child born of a void marriage and therefore, though on the
death of F , he would succeed to his property along with S1, but on the death of S1, he or S3 would
not inherit the property, as in law, they are not deemed to be related to him, despite being half-
brothers. However, if S2 dies, S3 would be entitled to inherit his property as a full-blood brother.

A full-blood brother or sister would exclude a half-blood brother or sister. For example, a Hindu male
dies leaving behind a full-blood sister, a half-blood brother and a uterine brother. The uterine brother
will be totally excluded as he is a class-IV heir or a cognate. The half-brother will be excluded in the
presence of a full-blood sister, who alone will inherit the property.

Brothers and sisters inherit with the son of a predeceased daughter of a predeceased son of the
intestate, and each of the heirs will share equally. For example, as shown in Fig. 12.23, A dies
intestate, leaving behind a brother Br , a sister Si and three sons of a predeceased daughter of a
predeceased son of the intestate. Each of them will take one-fifth (1/5th)of the property.

57
See The Hindu Succession Act, 1956, the Schedule, Explanation.
Where a Hindu male dies and is survived by his sister and the sons of a predeceased brother, the
sister would inherit the property excluding the later2558.

Grandchildren of a Predeceased Daughter : All the grandchildren of a predeceased daughter were

earlier placed in entry III of the class-II category. They should be related to the intestate through
legitimate birth or adoption, or should be the offsprings of a perfectly valid marriage. Presently three
grandchildren i.e., daughter’s son’s daughter; daughter’s daughter’s son ; daughter’s daughter’s
daughter are placed in class–I category, while the son of a predeceased son of a predeceased
daughter alone is left in this entry.

Illustration

A dies intestate, leaving behind three grandsons of a predeceased daughter. Each of these sons will
take one-third (1/3rd)of the property. [See Fig. 12.24]

Children of Brothers and Sisters : All children of brothers and sisters in absence of their respective
parents inherit together under entry IV of the class-II category and share equally, irrespective of their
sex or the sex of their parent. However, children of uterine brothers and sisters are excluded, and if
the children of both full-blood and half-blood brothers and sisters are present, the former would
exclude the later.2659 The son of a predeceased sister is a class-II heir and he will be preferred to the
grandson of the uncle of the intestate.2760

Illustration (i)

58
C S Muniappa v. Pillaiah, AIR 2010 (NOC) 250 (Karn).
59
See The Hindu Succession Act, 1956, s. 18.
60
Pushpatti Nath v . Ravi Prakash Gaur , AIR 2003 P&H 372.
A dies intestate and leaves behind one son of a predeceased sister S and two daughters of a
predeceased brother, D 1 and D 2. [See Fig. 12.25]

The property would be divided into three equal parts and S , D 1 and D 2 will take one-third (1/3rd)
each.

Illustration (ii)

A dies intestate and is survived by a son of a predeceased half-blood brother, S and a daughter of a
full-blood predeceased sister, D [See Fig. 12.26].

The daughter of a full sister would exclude the son of the predeceased half-blood brother, and will
take the entire property.

Paternal Grandparents : The fifth entry specifies the father’s father and the father’s mother. These
expressions do not include the step-grandparents, or grandparents where either the intestate or his
father was an illegitimate child or the offspring of a void or a voidable marriage that was
subsequently annulled. They do not inherit from the intestate. Neither the remarriage, nor the
unchastity of the paternal grandmother is of any consequence. These parents inherit together and in
equal shares.

Father’s Widow and Brother’s Widow : The expression ‘father’s widow’, includes such widow of the
intestate’s deceased father, who was not the mother of the intestate. A mother is a class-I heir. Such
widow must have been a party to a valid marriage between her and the father. Further, the term
‘widow’ also denotes that this marriage had ended by the death of the father and not by a divorce.
This is probably the reason why the expression ‘step-mother’ has not been used. What is surprising is
that while for the other relations introduced in the family by marriage, such as the widow of a
predeceased son, widow of a predeceased son of a predeceased son and the brother’s widow, the
marital status at the time of opening of succession as per the Act was material. If, before the death of
the intestate, they remarry, they lose their rights to inherit,28 61but for the father’s widow, her marital
status at the time of opening of the succession according to the Act was not material. However, the
expression father’s widow shows that she is still a member of the family of the intestate. If she

61
The Hindu Succession Act, 1956, s. 24.
remarries before the death of the intestate, she would cease to be the widow of the father and
would lose the inheritance rights. Her unchastity however,2962 is immaterial.

A brother’s widow inherits with the father’s widow, taking an equal share with her. Here, in order
that she is competent to inherit, her marriage with the brother of the intestate should have been a
valid marriage and not a void or an annulled voidable marriage. It should have been terminated by
the death of the brother and not by divorce. Here, after the death of the brother and before the
death of the intestate, she should not have remarried, otherwise, she forfeits her rights of
inheritance. She can remarry after inheriting the property of the intestate. ‘Brother’s widow’ includes
only the widow of a full-blood, or a half-blood brother, the former excluding the later, but not of a
uterine brother.

Father’s Brother and Sister : In the absence of near relations, the full-blood or half-blood brother and
sister of the father of the intestate, inherit the property. The rule of full-blood excluding the half-
blood applies here as well, and the uterine paternal uncle and aunt are totally excluded from this
category. The share of each of such uncle and aunt, irrespective of their number, is equal.

Maternal Grandparents : In comparison to the paternal grandparents, maternal grandparents are

placed at an inferior position. They must be related to the intestate by legitimate blood, and neither
their, nor the marriage of their daughter, should be a void or a voidable marriage that was
subsequently annulled. Placed together, they inherit equally. Maternal grandparents do not include
the step-grandparents. [See Fig. 12.28]

Maternal Uncles and Aunts : The last entry in class-II heirs comprise the maternal uncle and aunt.
They inherit only when none of the class-I or class-II heirs is present.

Fig. 12.29
62
Jayalakshmi v . Ganesha Iyer , AIR 1972 Mad 357 [LNIND 1971 MAD 242].
The mother’s brother and sister may be related to her by full-blood or half-blood, the former would
exclude the latter, but if they are related by uterine blood, they will be excluded from this category.
In Fig. 12.29, A must have been the offspring of a valid marriage, otherwise, the maternal uncle and
aunt will not be entitled to inherit.

Class-III Heirs (Agnates)

An agnate is a person who was related to the intestate through male relatives only. An agnate
himself/herself can be a male or a female, as it is the 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 is
present.3063 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. Nearer
agnates and cognates have already been included as class-I and class-II heirs, and therefore, this
category refers to remoter agnates. For example, a male Hindu A , dies leaving behind only a paternal
great-grandfather FFF , a great great grandson SSSS and a grandson of his paternal grandfather’s
brother, BrSS .

In Fig. 12.30(i), SSSS is a descendent agnate; in Fig. 12.30(ii), FFF is an ascendant agnate; and in Fig.
12.30(iii), BrSS is a collateral agnate.

Rules of Preference Among General Agnates : For computing the degrees of relationship among
agnates and cognates, the following factors need to be understood:

(i) Each generation is called a degree.

(ii) For the computation of degrees, the starting or the first degree, is the intestate himself.
(iii) Degrees of ascent means in the ancestral or upwards direction.
(iv) Degrees of descent means in the descendant or downwards direction.
(v) Where an heir has both ascent and descent degrees, each of them has to be seen
separately and not cumulatively.

63
Prabhu Dayal v . Suwa Lal , AIR 1994 Raj 149 .
 (vi) An agnate who has only descent degrees, is preferred over the one who has only ascent
degrees. (vii) Where two agnates have ascent and descent degrees, the one with fewer
ascent degrees will be preferred.

In Fig. 12.31(i), SSSS is in the fifth degree of descent, but he has no degree of ascent. In Fig. 12.31(ii),
FFF is in the fourth degree of ascent and if both SSSS and FFF are present, SSSS will inherit the
property, since a person with fewer or no degrees of ascent is preferred.

In Fig. 12.31(iii), two heirs are shown: BrS , who is A ’s father’s brother’s son and FBrSS , who is A ’s
father’s father’s father’s son’s son’s son. Both are collateral agnates. BrS , i.e., father’s brother’s son,
has three degrees of ascent, as the relationship is first traced to a common ancestor in case of
collateral agnates, who in this case, is A ’s great grandfather. Since he is the great grandfather’s
grandson, he will have an additional two degrees of descent. So BrS will have three degrees of ascent
and two degrees of descent.

FBrSS will have four degrees of ascent and three degrees of descent, and if only these two agnates of
the intestate are present, BrS will exclude FBrSS , as he has fewer degrees of ascent. If only FFF [as in
Fig. 12.31(ii)] and Brs [Fig. 12.31(iii)] are present, it would be FFF who will take the entire property, as
ascendant agnates are preferred to collateral agnates.

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. For
example, an intestate’s paternal aunt’s son, is his cognate, but his paternal uncle’s daughter will be
an agnate. [See Fig. 12.32]

The latter is related to A through a chain of male relatives only, while in the case of the former, the
father’s sister (a female) intervenes. 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 explained
above, in the case of agnates.

Cognates inherit when none of the class-I or class-II heirs or the entire category of agnates is present.
The patriarchal preference of relations through males over those related through females, is very
evident at every stage, as the Act overlooks the claim of nearer cognates in comparison to remoter
agnates. For example, A , a male Hindu, dies and is survived by his paternal aunt’s son S , and his
father’s paternal grandfather’s grandson’s grandson S4, who has 4 degrees of ascent and four
degrees of descent. S4 will be preferred over the paternal aunt’s son S , as he is an agnate and the
latter is a cognate. [See Fig. 12.33]

If none of the heirs in class-I, class-II, agnates, and cognates is present, the property of the intestate
will pass to the government, under the doctrine of escheat.