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ALIGARH MUSLIM UNIVERSITY

MALAPPURAM CENTRE, KERALA

END- TERM ASSIGNMENT [ BATCH – 2018 B.A.LL.B.]

HINDU LAW- II ( BLLB602 )

Semester- VI
On the Topic

“ Intestate Succession to property of Hindu Male”

Submitted To Submitted By

Mr. Shahnawaz Ahmad Vaibhav Teotia

Asst. Prof. (Dept. Of Law) RollNo. 18Ballb03

AMUMC. En.No- GJ3957

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TABLE OF CONTENTS

S.No. PARTICULARS P.No.

1 Introduction 3
2 Types of Succession- Testamentary and Intestate 3
3 Nature of Property of Intestate Succession of Hindu Male 4
4 General rules in case of Hindu Male dying intestate 5
5 Heirs of Class I 5
6 Distribution of property among heirs of class I 7
7 Heirs of Class 2 8
8 Agnates 12
9 Cognates 12
10 Conclusion 13
11 Bibliography 14
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INTRODUCTION

Today , we have uniform secular law of succession for all Hindus. Old Hindu law and the
customary law of succession stand abrogated. The mitakshara bias of preference of males
over female and of agnates over cognates has considerably whittled down. The Hindu
succession act has been passed to meet the needs of progressive society. It removes inequality
between men and women with respect to right in property and it revolves a list of hiers
entitled to succeed on intestacy based on natural love and affection rather than on religious
efficacy. The Act has provided uniform order of succession governing the property of male
Hindu.

The Hindu Succession Act preserves the dual mode of devolution of property under the
Mitakshara school. The joint family property still devolves by survivorship,with this
important exception that if a Mitakshara coparcener dies leaving behind the mother, widow,
daughter, daughter's daughter, son's daughter, son's son's daughter, son's widow, son's son's
widow or daughter's son, his interest in the joint family property will devolve by succession.
The act bases its rule of succession on the basic mitakshara propinquity i.e. preference of
hires on the basis of proximity of relationship ( based on natural love and affection, i.e
nearness of blood). The schedule of the act provides class of heirs upon whom the property
will be devolved.

In this assignment we will understand the intestate succession to property of a male Hindu

SUCCESSION TO THE PROPERTY OF A MALE INTESTATE

Succession is of two types: (i) testamentary succession; and (ii) intestate succession.

1-TESTAMENTARY SUCCESSION

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

Under Hindu law, a Hindu male or female has the capability to make a Will of his/her
property, including of a share in the undivided Mitakshara coparcenary, in favour of anyone.
In such cases, the property will devolve on their death, in accordance with the distribution
that they effect under this Will, and not according to 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. 1

1 Dr Poonam pradhan Saxena, Family Law, Volume 1, 774, (Lexis Nexis, , 2011)
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2-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. Section 8 to 13 deals with rules of succession in
connection with separate property of a male Hindu dying intestate.

NATURE OF PROPERTY FOR INTESTATE SUCCESSION OF MALE HINDU

The first and most important prerequisite for the implementation of inheritance or intestate su
ccession rules is that the deceased's property was not disposed of by him under a Will2. 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:

Separate Property or Self-acquisitions

This would include the property that the deceased might have earned, i.e., his salary or a
share in profits, or what he may have received through a gift or Will, or through inheritance
from any relative, or received by way of a prize or a lottery. It is irrespective of the fact that
at the time of the acquisition of the property or at the time of his death, he was an undivided
member of a Mitakshara coparcenary, as even a coparcener is empowered to hold separate
properties.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.

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 Section 8.

Section 6 and 8- Section 6 is applied to the devolution of coparcenary property of a

male Hindu who dies after the commencement of the Act.Section is applied to the devolution

2 Supra note 1
3 Ibid
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of a self acquired property of a male Hindu. The words “the property of a male Hindu dying
intestate” and the words “shall devolve” occuring in section 8 make it very clear that the
property whose devolution is provided for by that section must be the property of a person
who dies after commencement of the Act. The provisions of section 8 are therefore, not
retrospective in operation.4

GENERAL RULES OF SUCCESSION IN CASE OF MALE DYING INTESTATE

Section 8 of the Hindu succession act lays down general rules of succession in case of male
dying intestate.succession opens at the time of death of a person whose property is to be
succeed and is governed by the law in force at that time. The word 'dying intestate' in section
8 are the descriptive of status of the deceased and have no reference to the time of death of a
Hindu male. This Act applies to the cases where the succession open after the Act came into
effect.5

The property of a male hindu dying intestate firstly devovle on heirs in clause (1) which
include Widow amd son. The section divides the heirs of a male for purpose of inheritance
the property in four classes. These are6:

(1) Relatives mentioned in Class I of the Schedule.

(2) Relatives mentioned in Class II of the Schedule.
(3) Agnates of deceased.
(4) Cognates of deceased.

HEIRS OF CLASS I
According to section 9 heirs in class I of the Schedule are to succeed simultaneously; in other
words they form a group of Heirs and succeed as a body. Heirs in class 2nd are excluded as
long as there is even a single heir in Class I. Heirs mentioned in class I succeed in preference
to all other mentioned in class II.

These heirs are as follows :

(i) Mother ; (ii) Widow ; (iii) Daughter ; (iv) Daughter of a predeceased son ; (v) Widow of
a predeceased son ; (vi) Daughter of predeceased daughter ; (vi) Daughter of a predeceased
son of a predeceased son ; (vii) Widow of a predeceased son of a predeceased son; (viii) Son ;
(ix) Son of predeceased son ; (x) Son of a predeceased son of a predeceased son ; and (xi)
Son of a predeceased daughter . (xii) daughter of a predeceased daughter of a predeceased
daughter . (xiii) son of a predeceased daughter of a predeceased daughter. (xiv)daughter of a
predeceased daughter of a predeceased son. daughter of a predeceased son of a predeceased
daughter .

4 Dr. Rk Agrawal, Hindu Law,276, ( Allahabad Law Agency, 26th edition 2019).
5 Supra note 3 , at 275
6 Section 8 of Hindu Succession Act, 1956
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Illustration- Hindu dies intestate leaving a widow and a father. The widow being heir of class
I will take the whole to the exclusion of father.

Mother- Mother is always a mother. Propositus may be her legitimate son or an illegitimate
son, she will inherit. She may be chaste, she might have remarried, she might have been
divorced, she remains a mother. It is also immaterial whether her marriage with the
propositus father was void or voidable.7 But a stepmother is not included in the expression
'mother', and she does not inherit as a class-I heir, though she does so as Class II, category VI
heir.

In Jayalakshmi Ammal And ors. V T.V. Ganesha Iyer8 , it was held that the unchastity of
the mother is no bar as to her inheriting from her son.

The term ‘widow’, refers to the spouse of a perfectly valid marriage, 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.

Daughter and Son:

The term ‘daughter’ includes a natural born or an adopted daughter, but does not include a
step-daughter or an illegitimate daughter. In case of Rameshwari Devi v State of Bihar , it
was held that, daughter born of a void marriage or a voidable marriage, where a decree of
nullity has been obtained from the court, is a legitimate child and would inherit the property
of her father. Under the Act, there is no distinction between the rights of a married and an
unmarried daughter.

TheThe expression ‘son’ includes a natural born son or an adopted son. In the case of
Daddo Atmaram Patil v. Raghunath Atmaram Patil that illegitimate son or daughter is not
included in the category of heirs of class 1 and in this respect the settled old Hindu law that
illegitimate children succeeded to their putative father’s property has been abrabrogate

Sons and Daughters of Predeceased Son :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. Similar situation is in case of Sons
and daughter of pre deceased daughter.

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-

7 Supra note 1, at 776

8 AIR 1972 Mad 357
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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. 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. 9

The same rules follows in case of widow of predeceased son of predeceased son.

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. 10The
relationship of the intestate with the daughter and her children as well her grand children
should be through legitimate kinship or through adoption.

DISTRIBUTION OF PROPERTY AMONG HEIRS OF CLASS I

Section 10 of the Act defines the share which the heirs in Class I of the Schedule shall get
even though they take simultaneously. The computation of shares of heirs is to be done in
accordance with the rule laid down in section 10.

Rule 1- According to this rule the intestate's widow is entitled to one share. Where the
intestate had left behind more windows than one, then all widows together are entitled to one
share and this one share will be equally divided among them.11

For example- A dies leaving two widows. Both widows together will take the whole , as that
each widow will take half and half.

Rule 2- This rule provides that each of the surviving son and surviving daughter as well as
the mother is entitled to take one share. Thus , the division is to be per capita not per stripes.

For example, if P dies leaving behind his mother M, two sons S1 and S2and two daughters
D1 and D2 , each of the above heirs will take one share, i.e.,1/5; M will take 1/5; and D1 and
D2 each will also take 1/5 and S1 and S2 each will take one-fifth.

The rule makes no distinction between the adopted son and subsequently born aurasa son.
Each of them is entitled to one share and the old Hindu law that adopted son takes less share
than after born son is over- ridden by the section 4 of the Hindu Succession Act. 12

Rule 3- This rule expressly provides for the exception that hires of the deceased in the
branches of predeceased son and preceased daughter not take per capita but per stripes.

Among the heirs of branches of predeceased son and predeceased daughter the doctrine of
representation applies i.e. , the heirs in each branch would take the same share their parent

9 Supra note 1 at 778

10 Ibid
11 Supra note 3 at 280
12 Ibid
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would have had if alive. These heirs would take per capita i.e per head. Thus, the common
share that the branch of each predeceased son and predeceased daughter gets will be
distributed equally among the heird of that branch.

Rule 4- To apply rule 4 , the pre-deceased son or the pre- deceased daughter is to be treated
as the propositus. To apply rule 3 he is to be treated as an heir of his father, who, though dead
,is represented by his own heirs. In rformer, treating the pre deceased son as the propositus
his heirs become his widow, his sons , and daughter. Maybe that he had a pre deceased son
who has left a son, widow or a daughter behind him. The heirs of the pre-deceased son
together shall get only one share just as the The heirs of the pre-deceased son got only one
share under Rule 3.13

The doctrine of representation has been carried out to the third degree in the case of a son and
daughter.

For example- A dies , survived by a widow W, a son S , three grandsons of a pre deceased
son SS, a daughter D, two grand daughters of pre deceased daughter DD. Here W , S and D
will take 1/5th as well as branch of pre deceased daughter and pre deceased son’s branch will
take 1/5th together which will be divided equally among them i.e., 1/15 among grandsons of
predeceased son and 1/10 between grand daughters of pre deceased daughter of propositus.

HEIRS OF CLASS II
As long as there is single heir in class I , there is no chance for heirs in Class II to succeed in
anyway. Property pass to Class II heirs , only, if there is no class I heir as per section 8(b) .
According to section 11 , Class II heirs are divided into nine categories (entry) inclusive of ,
ten heirs are males and nine are females. Section 9 laid down that heir in the first entry is
preferred to heirs in the second entry, and heirs in the second entry are preferred to those in
the third entry and so on in the succession.

Therefore , when there is only one heir in the entry I then such heir would take whole alone
excluding others entries.All the heirs in one i.e same entry take simultaneously and per
capita. Thus the property will be so divided between them that every one of them( who are in
same entry ) gets equal share.

It was held in kumuraswami V njayanappa that, all the heirs in Class II take cumulatively
and not simultaneously i.e. they succeed in order of entries from I to IX. 14

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 inclass–I
category) ; (3) Brother ; (4) Sister

13 Ibid
14 Dr. Paras Diwan, family law ,467 ,( Family law, 11th edition).
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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 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

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.

ENTRY I – Father is the only heir in this entry or category

Father- He is the only nearest heir who hasn’t found a place in class I heirs as under
Mitakshara law, mother was considered to have greater propinquity than the father.Father is
the sole heir in entry 1. In absence of class I heirs , he will take entire property. 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.But his presence excludes every other class-II heir. He inherits alone.15

The expression ‘father’ includes a biological as well as an adoptive father, 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.

ENTRY II-

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.

15 Supra note 12 at 468

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Brother and Sister:

'Brother' and 'sister' here include the following : (a) Brother and sister by full blood, and (b)
Brother and sister by half blood.

The rule is when there is any brother or sister by full blood, the brother or sister by half blood
is excluded. When there is no brother or sister by full blood, the brother or sister by half
blood inherits. When there is no former , the latter inherits. 16

The brothers and sisters by uterine blood are excluded. If thep ropositus and his brother and
sisters are all illegitimate children of their mother, such brothers and sisters are heirs to him.
All the heirs in this category inherit per capita.

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.

ENTRY III- Deals with Grand children of a pre-deceased daughter.

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. 17

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.

ENTRY IV - Includes the children of Brothers and sisters

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. 18

Illustration

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

16 Supra note 1 at 782

17 Supra note 1 at 783
18 Ibid
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ENTRY V

Paternal Grandparents : The fifth entry specifies the father’s father and the father’s mother.

Father's father and father's mother do not include paternal step-grandfather or paternal step-
grandmother or 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
are adoptive parents of father, they will be included. If both of them are heirs, they will take
per capita, i.e., 1/2 each.19

ENTRY VI

(1) Father's widow,

(2) Brother's widow.

Father's widow means stepmother. She is the only step relation that is included among the
heirs. Even if she had remarried at the time when succession opens, she will inherit. She
succeeds along with the brother's widow.

A brother's widow is not entitled to succeed if she had remarried on the date succession
opens. If there are widows of two brothers, they will take per capita. If there are more than
one widow of the same brother, then also they will ineherit per capita. Similarly, if there are
more than one stepmother, they will take per capita. The rule that if there are more widows
than one, they together take one share applies to Class I heirs only. It does not apply to Class
II heirs.

For example, if intestate dies leaving behind two stepmothers and three widows of his
brother, all the five will take equally, each taking one-fifth.

ENTRY VII. This entry includes father’s brother and father’s 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.

ENTRY VIII- This entry have heirs from maternal side of propositus i.e maternal
grandparents

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.20

19 Ibid
20 Supra note 3 at 784
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ENTRY IX- This entry also includes heirs from maternal side i.e mother’s brother and
mother’s sister

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. 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 the case of Arunachalathammal v Ramachandran, it was contented that plaintiff being

brother comes at first rather then sister so he will exclude the sisters but it was observed by
the court that a entry in any particular category under Class II heir does not have any priority
over any other entry in that same category. 21

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.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.22

CLASS IV ( 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. 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. 23

The rule of preference, and distribution of property among the agnates and
cognates.
The rules of preferences and the mode of the distribution of property among agnates and
cognates are on the basis of the same rule, with this overriding rule that agnates are always
preferred over cognates. Section 12 lays down the following three rules 24 :

21 Supra note 12 at 471

22 Supra note 3 at 784
23 Ibid
24 Section 12 of Hindu Succession Act, 1956
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Rule 1. Of the two heirs, the one who has fewer or no degrees of ascent is preferred.

Rule 2. Where the number of degrees of ascent is the same or none, that heir is preferred who
has fewer or no degree of descent.

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

At last, if a Hindu dies intestate without leaving class I heirs , class II heirs, agnate and
Cognates then his property will pass to the government through escheat.

CONCLUSION
Hence from above discussion we reach to the point that , Hindu Succession Act, 1956
codified the rules of Succession of Hindu male. Codification remits the discrimination among
male and female which stands in old Hindu law. From going through the classes of heirs and
their priorities , it can be seen that, the order of succession provided by the Act is based on
love and affection rather than on pious obligations under old Hindu law. There is no
difference between male and female Hindus. Hindu succession Act and the rules of
succession of Hindu male's property are progressive and social in nature. This is because of
this, daughters get equal rights in property matters as same as sons. On other hand we have
seen that despite father being very nearest have not placed in class I heir instead he is in class
II heir. But to strengthen the women position many heirs were placed in Class I from Class II
in 2005.

Thus, we can say property of propositus first pass to the class I heirs and if no one present in
such class thereafter it moves to the Class II . In class II , there are nine entries where, entry
one will succeed at first and if no heir is present in entry one , it would pass to entry two and
so on. If situation arises , no class II heir is present, then it would devovle on agantes and if it
also not so, thereafter upon Cognates. In absence of all classes, property will be taken by
government through escheat. Rules of succession under Hindu Succession Act are inserted in
very comprehensive way. With the need of time ,it grow as per the demands of the society
like 2005.
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Bibliography
Books referred
1- Pradhan, Dr. Poonam, Family Law, Volume 1, Lexis Nexis, ,
2011
2- Agrawal,Dr. RK , Hindu Law, Allahabad Law Agency , 26th
edition 2019.
3- Diwan , DrParas, Family law, 11th edition

Website
1- Wwwlegalbites.com