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Intestate Succession Rules

Hindu Law

Classical Hindu Law

Hindu families were divided (for our purposes) into two schools – Mitakshara and
Dayabhaga. You should really know the distinction by now, but quick refresher that in
Mitakshara families, the coparcenary extends to three generations of descendants; in
Dayabhaga, it is only your children (while they are living) and that too their rights arise
only on your death. Also, coparcenaries were all male.

Rules governing coparcenaries:

1. Father and son share equally.

2. Property was claimed per stripes and not per capita.

3. Any property from the father, father’s father, or father’s father’s father was ancestral.

4. You could relinquish your share in the property. It would affect heirs born after the
relinquishment; but relinquishment would ordinarily be in favour of heirs already living
(including those in the womb). You cannot waive your living (or in utero) sons’ rights as
they have a right by birth.

5. If you died sonless, property would merge back with the coparcenary.

Separate property:

1. These three generations of sons had first claim.

2. In their absence, the widows.

3. In the absence of widows, daughters.

4. All women inheriting separate property from men would be reversionary heirs. This
means that the property would go to the heirs of the man they got it from. Only men
were a fresh stock of descent.

Partition rules:

1937 Act
 Seriously? Okay, here we go…
 If you had no kids, your grandkids could claim, but while they lived they excluded the l’il ones.
1. In terms of succession to separate property, widows claimed equal shares with sons. [Sec.
3(1)]

2. Mutatis mutandis to widows of predeceased son and predeceased son’s predeceased son.
[Sec. 3(1)]

3. In terms of coparcenary property, widows stepped into the husband’s shoes. [Sec. 3(2)].
This means that they had same rights a husband did over the share except the power of
alienation, which was restricted.

4. No absolute right; shares given up on remarriage. [Sec. 4 – implied in the term ‘widow’s’
estate]

5. When widows inherited as a class, property went by survivorship among them.

6. Reversion applied.

1956 Act

State Amendments

2005 Amendment

Kerala Amendment

Regarding domicile: HSA does not make an express provision for the same; therefore the
principles underlying the Indian Succession Act are often referred to. (Sarasu’s lecture.)

If religion of person unknown (or if Zoroastrian convert [?]) Hindu law applies. Because fuck
logic.

Christian Law

Found under ss. 29-49 of the Indian Succession Act (ISA). Keep in mind that a widower has
the same rights as the widow (Section 35, ISA).

Who gets the property?

1. Only a widow(er) survives – they get the whole of the property. [Sec. 33(c)]

2. Widow1 and lineal descendants survive – the widow keeps 1/3; the remaining 2/3 is
distributed among lineal descendants. [Sec. 33(a)]

1 From now on, ‘widow’ in Christian law is deemed to include ‘widower’. Refreshing, isn’t it?  But please
do not extend this to Parsi law; they have different rules for widowers.
 I.e. Kids, Grand-kids, great-grandkids…. You get the drift.
3. Widow and kindred survive – the widow gets ½; the remaining ½ is distributed among
the kindred. (Because kids HLS > kindred). [Sec. 33(b)]

4. Lineal descendants and kindred – the former will exclude the latter. [Sec. 41]

5. Widow, lineal descendants and kindred – Lineals will again exclude kindred. [Sec. 33(a)
r/w Sec. 41]

6. Lineal descendants only – they take the whole thing according to the rules given below.
[Secs. 36-40]

How is property divided among lineal descendants?

(Note this applies both with and without the widow. Assumption: all heirs are of the same
degree.)

1. The general rule is that property goes to those closest in degree. Thus, if I have two kids,
then my property will go to them and not to their kids while they are alive. [Sec. 37 r/w
38].

2. The same thing goes for grandkids w.r.t great-grandkids. [Sec. 38 r/w 39].

3. Sec. 39 applies for great-grandkids and lower.

4. The division of shares in this case is per capita.

Now what happens is that often the surviving lineal descendants are not of the same degree.
Thus, if I have three sons, one of them may have died leaving behind two daughters.
According to Sec. 40, what happens in this case is that the shares are divided at the closest
degree to the intestate. Then the dead gal’s or guy’s share is claimed by all her/his lineal
descendants as a class. You can understand it as being per stirpetal.

So in my three sons example, the property is divided at the level of the sons i.e. in 1/3 shares.
The dead dude’s 1/3 is claimed equally by his daughters i.e. 1/6 each. Let’s suppose one of
the daughters had already been dead and left behind a son and a daughter. Then the son and
the daughter would together claim her 1/6, i.e. 1/12 each.

How is the property distributed among kindred?

1. If father – he claims the whole thing. [Sec. 42.]

2. If no father – to mother, brothers and sisters. [Sec. 43.]

 In Christian law, includes mother, father, brother, sister and … well, look at Schedule I. Basically, everyone
you are related to by birth apart from kids.
 How lowsoever.
 Read with.
3. Rule 2 above + one or more (but NOT all) sibling deceased: the dead sib’s kids claim
per stirpes. [Sec. 44]

4. All sibs deceased but their kids are alive, and so is mom: kids claim per stirpes equal
shares with mom. [Sec. 45]

5. Only mom – no sibs or sib’s kids (Note: kids here does NOT mean grandkids etc.) – she
claims the whole thing. [Sec. 46]

6. Only sibs kids – they still take per stirpes. [Sec. 47]

7. None of these peeps alive – nearest degree of kin – as per Schedule I.

8. No fucker in any possible degree – goes to the government by escheat. [Sec. 34]

Jewish Law

In India, through case law, Christian law has consistently been applied to Jews. Refer to the
section listed above.

Parsi Law

By virtue of s. 31 ISA, Chapter II rules do not apply to Parsis. Their rules are listed under ss.
50-56. Note that they apply if the intestate is Parsi; religion and marriages of the heirs do not
matter. However, two Parsis marrying under the SMA Part III would have Chapter II
rules applied to them. [Sec. 21, SMA – it shall be as if Chapter III of Part V had been omitted
from the ISA]

1. Like Hindu law, Parsi law protects those in the womb and subsequently born alive. [Sec.
50(a)]
2. If a lineal descendant has died and left no one, their branch is excluded (obviously
extinguished). [Sec. 50(b)]
3. Remarriage of widow(er) disentitles them from inheriting. [Sec. 50(c)]

Distribution of property:

1. Widow(er) and living children – take equal shares. [Sec. 51(1)(a)]


2. Widow(er), living children and parent(s) – Parent(s) take(s) half the share of the children.
[Sec. 51(2)]
3. Only living children – equal shares. [Sec. 51(1)(b)]

Children exclude all other lineal descendants. When children die;

(1) If male and has left behind widow and children – presumed he was alive – his share goes
according to the rules in Sec. 51(1)(a) [Sec. 53(a)]
(2) If male and has left behind only a widow – presumed he was alive – goes according to
Sec. 54(a) – widow gets half his share – residue given to other lineal descendants. [Sec.
53(a)] Branches where there are only widows are ruled out.

(3) If female, all children get equal shares. [Sec. 53(b)]

(4) These rules apply mutatis mutandis to grandchildren [Sec. 53(c)] or lower than that [Sec.
53(d)]

When only widow(er)s survive:

(1) Just the intestate’s widow(er) – gets half. [Sec. 54(a)]

(2) The intestate’s widow(er) and his/her lineal descendants’ widow(er)(s) – the intestate’s
widow(er) gets 1/3; remaining 1/3 taken by lineal descendants’ widow(er)(s) as a class. [Sec.
54(b)]

(3) Only lineal descendants’ widow(er)(s) – as a class, get 2/3 divided equally among them.
[Sec. 54(c)]

(4) The residue goes to relatives in Part I of Schedule I in order specified. Everyone in one
entry takes simultaneously and equally. [Sec. 54(d)]

(5) No kin in that schedule – property divided to widow(er)(s) in proportion in which they are
entitled to receive. [Sec. 54(e)]

No widows or lineal descendants – Part II of Schedule II – in order specified – everyone in


each entry takes equally. [Sec. 55]

If no one at all under Chapter III is alive, it will go to nearest kindred. [Sec. 56] Computed
as per Schedule I, like for Christian law.

Muslim Law

Sarasu’s handbook is more than sufficient for this.